STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Leroy Joseph Richardson,
Filed July 28, 1998
Dakota County District Court
File No. K9-96-2871
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Statia D. Hendrix, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,** and Holtan, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
**Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant was convicted of kidnapping, Minn. Stat. § 609.25, subds. 1(2) and 2(2) (1996), and sentenced to 480 months, first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(c) (1996), and sentenced to 360 months, and attempted first-degree murder, Minn. Stat. § 609.185(1) (1996), and sentenced to 240 months, for the abduction, rape, attempted strangulation, and repeated stabbing of his victim, S.H. On appeal, he claims that he was erroneously sentenced as a career offender under Minn. Stat. § 609.152, subd. 3 (1996), and that his sentence was excessive. Because his prior criminal history and current offenses constitute a pattern of criminal conduct that warrant sentencing under the career offender statute and because we conclude that the imposed sentence was not excessive, we affirm.
Asentencing judge may impose a durational departure that does not exceed the statutory maximum sentence
if the judge finds and specifies on the record 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.
Minn. Stat. § 609.152, subd. 3 (1996) (allowing increased sentences for career offenders). The Minnesota Supreme Court has interpreted "pattern of criminal conduct" to require a link between the present offense and prior criminal conduct that is "similar, but not identical in motive, purpose, results, participants, victims, or other shared characteristics." State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996); see also State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995) (career offender statute "targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality"), review denied (Minn. May 31, 1995).
Appellant argues that his criminal history does not bring him within the purview of this statute. Appellant's prior criminal record during the four-year period from 1992 to 1996 includes felony convictions for motor vehicle theft, receiving stolen property, second-degree burglary, state lottery fraud, and theft. His record also includes a misdemeanor assault conviction and adjudications of delinquency for two second-degree burglaries, theft, and indecent exposure. Appellant committed the current offenses the day after being released from prison after serving a 15-month sentence for motor vehicle theft.
We agree with the trial court's conclusion that appellant's current offenses were part of a pattern of criminal conduct. Appellant's criminal history of assaults, theft, and sexual misconduct includes criminal conduct that is similar to present offenses. Because appellant admits that his initial interest was to steal the victim's car, his motive and purpose were identical to those of several of his previous crimes. While the current offenses resulted in severe injury to the victim, a result that was not present in his other criminal conduct, the present conduct nevertheless had a behavioral similarity to his prior conduct. Combined with the other shared characteristics of his prior offenses, the current offenses meet the "pattern of criminal conduct" requirement for sentencing as a career offender.
Appellant also claims that even if he was properly designated a career offender, the imposed sentence was excessive. See Minn. Stat. § 244.11, subd. 2(b) (Supp. 1997) (appellate review of criminal sentence may include consideration of whether sentence imposed was "excessive"). Based on our "collective, collegial experience," we conclude that the imposed sentence was proper. State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982); see also Gorman, 546 N.W.2d at 7 (affirming double durational departure for convictions of second-degree felony murder and first-degree manslaughter where the offender's criminal history included prior assaults, and where the current conduct included causing a fellow bar patron's death by punching him without provocation). Here, appellant's conduct was much more egregious than the conduct described in Gorman, and we conclude that the severity of appellant's conduct supports the sentence imposed.