IN SUPREME COURT
Court of Appeals
Took no part,
Filed: December 1, 2005
Office of Appellate Courts
John C. Henderson,
S Y L L A B U S
A determination that appellant’s prior convictions formed a pattern of criminal conduct as required for enhanced sentencing under the career offender statute involved more than a finding of recidivism and accordingly, under Blakely v. Washington, 542 U.S. 296 (2004), the imposition of such an enhanced sentence based on the district court’s finding of a pattern of criminal conduct violated appellant’s Sixth Amendment right to trial by jury.
The proper remedy is a remand to the district court for resentencing consistent with our holding in State v. Shattuck, 704 N.W.2d 131 (Minn. 2005).
Reversed and remanded for resentencing.
Heard, considered, and decided by the court en banc.
O p i n i o n
John C. Henderson seeks review of an unpublished court of appeals decision
affirming his 144-month sentence for first-degree burglary as a career offender
under Minn. Stat. § 609.1095 (2004).
December 6, 2002,
The state argues that
recognized circumstances in which the defendant’s failure to raise a sentencing
issue at the time sentence is imposed does not waive consideration of the issue
on later review. See State v. Fields, 416
N.W.2d 734, 735 (Minn. 1987) (allowing challenge to durational sentencing
departure following revocation of stayed sentence); State v. White, 300
In the interests
of justice, we exercise our discretion to address
We turn to
the question of whether the district court could constitutionally impose an
upward durational departure based on its determination that
The issue before
us, then, is whether the determination of a pattern of criminal conduct presents
a question of law within the district court’s discretion or whether it necessarily
requires fact-finding that only may be made by a jury. We previously examined the meaning of “pattern of criminal conduct” in State v. Gorman, 546 N.W.2d 5 (
The defendant in Gorman appealed, arguing that his
conduct did not fall within the meaning of “a pattern of criminal
The state claims that
this type of determination comes under the recidivism exception to Apprendi and Blakely first recognized in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), and that therefore it is a question
of law. In Almendarez-Torres, the
The state argues that the career offender determination in this case is akin to the determination of prior convictions in the Almendarez-Torres case. We do not agree.
The statute at issue in Almendarez-Torres allowed enhancement
based purely on the existence of a previous felony conviction, without
consideration of any relationship of the previous felony to the deportation
violation. The career offender statute
is significantly different. Under the career
offender statute, not only must a judge find that the defendant has prior
felony convictions, but the judge must also look to a variety of prior conduct,
including felony and gross misdemeanor offenses and prior uncharged acts of
criminal conduct, and decide what their relationship is to each other and to
the conviction for which a sentence is being imposed. As the Minnesota Court of Appeals recently
concluded in State v. Mitchell,
determination of a pattern of criminal conduct “involves a comparison of
different criminal acts, weighing the degree to which those acts are
sufficiently similar * * *.
This determination goes beyond a mere determination as to the fact, or
number, of the offender’s prior convictions * * *.” 687 N.W.2d 393, 399-400 (
The relevant rule from Apprendi dictates that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury and proven
beyond a reasonable doubt.” Apprendi, 530
We turn to consideration
of the proper remedy. When this case was
briefed and argued, we had pending before us the case of State v. Shattuck, 704 N.W.2d 131 (2005) (Shattuck II), in which we determined the proper remedy where an
upward departure under our state sentencing guidelines was unconstitutionally
imposed. We severed the unconstitutional
portion of the guidelines and left the remainder of the sentencing guidelines
Reversed and remanded for resentencing.
ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.
recently ruled that Blakely does not
apply retroactively to cases on collateral review. State
 In a number of other recent cases, the court of appeals has retreated from its decision in the case before
us, and has acknowledged that upward durational departures under the career offender
statute violate a defendant’s Sixth Amendment rights. See,
e.g., State v. Berry, No.
A04-1435, 2005 WL 1021374 at *3 (Minn. App. May 3, 2005), rev. denied (