This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brian Dean Nutter,
Filed August 6, 1996
Hennepin County District Court
File # 95036293
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, C2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, Minnesota Public Defender, Evan W. Jones, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)
Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge and Crippen, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the 180-month career-offender sentence he received in a first-degree burglary case. We affirm.
Appellant was charged with four counts of first-degree burglary and four counts of kidnapping. In accordance with a plea agreement, appellant pleaded guilty to one count of first-degree burglary, and the remaining charges were continued for dismissal. The defense requested a sentencing hearing, where the state moved for sentencing under Minn. Stat. ' 609.152, subd. 3 (1994) (career offenders). The defense moved for the 65-month guidelines presumptive sentence.
Observing that appellant had five prior convictions for burglaries committed in the same region over an eight-year period, constituting a pattern of criminal behavior, the trial court sentenced appellant to 180 months in prison, approximately 2.8 times the duration of the presumptive sentence, but only three fourths of the 20-year statutory maximum for first-degree burglary. This appeal followed.
D E C I S I O N
The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). In addition, Minn. Stat. ' 609.152, subd. 3 (1994) provides that the sentencing court may impose an aggravated upward durational departure, up to the statutory maximum sentence, if the court finds "that the offender has more than four prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct." Appellant contends that although his case fits within the reach of the career offender statute, the trial court did not sentence him "reasonably and proportionately," considering his chemical dependency, remorse and lack of violence. He asks that this court reduce his sentence to 65 months pursuant to its statutory authority under Minn. Stat. ' 244.11 (1994).
Appellant cites State v. Stirens, 506 N.W.2d 302 (Minn. 1993), in support of his claim. In Stirens, a defendant was sentenced to 180 months under the patterned sex offender statute, over eight times the presumptive sentence of 21 months. Id. at 305. On appeal, the Minnesota Supreme Court reduced defendant's sentence from 180 months to 120 months, noting that "[a]fter reviewing the record" and based upon its "collective experience" a reduction to nearly six times the presumptive sentence was more appropriate. Id. at 306. We are not persuaded that the trial court's decision to sentence appellant to 180 months in prison, approximately 2.8 times the duration of the 65-month presumptive sentence and less than the statutory maximum for his crime, was an abuse of discretion requiring alteration.
Pursuant to the career offender statute, the trial court found that appellant had more than four felony convictions and that the present offense was part of a pattern of criminal conduct; all five of appellant's previous felony convictions were for burglaries that occurred in the same area of Minneapolis over an eight-year span, despite appellant's incarceration during a part of that time. In addition, as the court noted, appellant's current offense was particularly serious because it involved risks of harm to a child. See State v. Flemino, 529 N.W.2d 501, 504 (Minn. App. 1995) (career offender's pattern is one of "increasing dangerousness"), review denied (Minn. May 31, 1995). These are not circumstances justifying the conclusion that the trial court abused its sentencing discretion.