may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Johnnie Lee Baugh,
Filed May 25, 1999
Affirmed as modified
Ramsey County District Court
File No. K7983203
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
In an appeal from a sentence for attempted third-degree burglary, Johnnie Lee Baugh contends the district court erred in imposing a double durational departure of 33 months. The district court did not abuse its discretion by enhancing Baugh's sentence under the career-offender statute, but because the enhanced sentence exceeds the statutory maximum by three months, we modify the sentence to conform to the limitation. We affirm as modified.
Police apprehended Johnnie Lee Baugh in the act of prying open the coin box of a washing machine in the laundry room of a St. Paul apartment building. Baugh was charged with burglary in the third degree in violation of Minn. Stat. § 609.582, subd. 3 (1998). Baugh pled guilty to attempted third-degree burglary in violation of Minn. Stat. §§ 609.582, subd. 3, and 609.17 (1998). Noting Baugh's extensive history of criminal misconduct, the presentencing investigation report recommended an aggravated durational departure under Minn. Stat. § 609.1095, subd. 4 (1998), the career-offender statute. The district court found that Baugh satisfied the requirements of section 609.1095 and sentenced Baugh to 33 months in prison, a double durational departure from the presumptive sentence under the Minnesota Sentencing Guidelines.
The decision to depart from the sentencing guidelines rests within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An upward departure is within the district court's discretion if substantial and compelling aggravating circumstances are present. Id. The career-offender statute provides the district court with a legislatively created ground for departure. State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993).
The 1998 legislature re-codified Minnesota's career-offender statute. The statute provides:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4.
Baugh was convicted of seven felonies before the current attempted burglary conviction: four convictions for third-degree burglary, a conviction for felony theft, a conviction for second-degree attempted burglary, and a conviction for fifth-degree controlled substance offense. Baugh's prior convictions are, with the exception of one controlled substance offense, all for burglaries and theft. The similarity of his prior convictions to the present conviction fully satisfies the required "pattern of criminal conduct" under the career-offender statute. State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996) (prior criminal conduct need only be similar, not identical, in nature). The district court specified on the record that Baugh had the requisite five prior felony convictions and that the felony of attempted burglary in the third degree for which he was sentenced was "committed as a part of that pattern of criminal behavior." The district court did not abuse its discretion in sentencing Baugh under the career-offender statute.
The district court is authorized, under the career-offender statute, to depart durationally from the presumptive sentence by imposing a sentence up to the statutory maximum. Minn. Stat. § 609.1095, subd. 4. The statutory maximum sentence for attempted third-degree burglary is 30 months. Minn. Stat. §§ 609.17, subd. 4; 609.582, subd. 3. The district court sentenced Baugh to 33 months. The district court arrived at the 33-month sentence by doubling the guidelines' 16.5-month presumptive sentence for attempted third-degree burglary. Minn. Sent. Guidelines II.B.203; II.G; IV. But the guidelines do not alter the statutory maximum sentence, and setting the presumptive sentence at 16.5 months does not imply that a double departure may exceed the maximum sentence provided by law. We therefore modify Baugh's sentence to conform to the 30-month statutory maximum.