This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-467

 

 

Wesley Eugene Brooks, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed January 10, 2006

Reversed and remanded

Halbrooks, Judge

 

 

Rice County District Court

File No. C9-04-1692

 

 

F. Clayton Tyler, 331 Second Avenue South, Suite 230, Minneapolis, MN 55401 (for appellant)

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest 3rd Street, Faribault, MN 55021 (for respondent)

 

 

            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that there is insufficient evidence in the record to support an upward departure based on the career-offender statute.  In addition, he claims that the sentencing court failed to articulate a reason on the record to support an upward departure, and, as a result, this court should not allow a departure on remand.  Because there is no evidence in the record proving that appellant is a career offender and because the sentencing court did not state a reason to support the upward departure, we reverse and remand for imposition of the presumptive sentence.

FACTS

            Appellant Wesley Brooks was charged with racketeering, two counts of conspiracy to commit first-degree controlled-substance crime, introduction of contraband into correctional facility, conspiracy, third-degree controlled-substance crime, fourth-degree controlled-substance crime, and fifth-degree controlled-substance crime.  Appellant pleaded guilty to the fifth-degree controlled-substance charge, agreeing to be sentenced as a career offender in exchange for the dismissal of the remaining charges. 

            After appellant pleaded guilty, the district court moved immediately to sentencing.  It did not order a presentence investigation or a sentencing worksheet.  The parties made sentencing arguments, but both parties agreed that the district court would sentence appellant as a career offender, and appellant stipulated that he had five prior felonies.  The crux of the parties’ disagreement during the sentencing hearing was whether the sentence would run consecutively or concurrently with the sentence appellant was then serving.  (Appellant has since been released from the custody of the Commissioner of Corrections for that conviction and is currently serving a supervised-release term.)

            The district court imposed an executed sentence of 54 months to run concurrently with appellant’s then-existing sentence.  In so doing, the district court referenced defense counsel’s statement that the parties agreed that the court would sentence appellant as a career offender, but that the contested issue was whether the court would impose the sentence consecutively or concurrently.  The district court never explicitly stated that it was imposing the sentence under the career-offender statute or that the sentence constituted an upward departure. 

            Appellant did not challenge his conviction or sentence on direct appeal.  One year later, appellant filed a petition for postconviction relief, asserting that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), applied to his sentence, that there was insufficient evidence in the record supporting the upward departure, and that his previous counsel’s assistance was ineffective. 

            The district court, in its memorandum denying appellant’s postconviction petition, stated that it had adopted the parties’ agreement to sentence appellant as a career offender.  The district court found that, even if the reasons given during sentencing were improper or inadequate, there was sufficient evidence in the record to support the departure.  In addition, it found that Blakely did not apply to appellant’s sentence and that appellant did not meet his burden of proof that his counsel provided ineffective assistance as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).  This appeal follows.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

            Minnesota’s career-offender 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 (2004).  Thus, in order to sentence a defendant under this statute, the district court must make two findings: that the defendant has five prior felonies and that the current felony is part of a pattern of criminal conduct.  Id. 

            The term “prior conviction” for purposes of the career-offender statute means “a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is [currently] being sentenced.”  Id., subd. 1 (2004); see also State v. Huston, 616 N.W.2d 282, 284 (Minn. App. 2000).  The term “pattern of criminal conduct” is “the organizing principle or relationship binding certain things, in this case incidents of criminal conduct, together.”  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996).  The supreme court has stated that “[s]uch a ‘pattern of criminal conduct’ may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.”  Id.

            When a district court decides to depart from the sentencing guidelines, “it must articulate substantial and compelling reasons” on the record justifying its action.  State v. Heath, 685 N.W.2d 48, 62 (Minn. App. 2004) (quotation omitted), review denied (Minn. Nov. 16, 2004), cert. denied, 126 S. Ct. 178 (2005).  The supreme court formulated general rules regarding departure grounds:

1.   If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.

2.   If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.

3.   If the reasons justify the departure, the departure will be allowed.

4.   If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.

5.   If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

 

Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). 

 

            Here, the postconviction court applied the fourth rule from Williams and stated that “the reason for the departure is documented in the sentencing transcript by both parties and adopted by the Court.”  The postconviction court found that the parties had agreed that the career-offender statute applied to appellant and that “the Court need not make verbatim repetition of consistent agreements between the opposing part[ies].”  But in this case, we conclude that there is not sufficient evidence in the record to support sentencing appellant as a career offender.

Although the parties agreed, during the sentencing hearing, that the district court would sentence appellant under the career-offender statute, the district court never explicitly stated that it was doing so.  It did state in its memorandum denying appellant’s postconviction petition that it “made reference to the defense counsel’s argument.”  Defense counsel had previously stated that the parties agreed that the court would sentence appellant as a career offender and that the only issue was whether the district court would impose the sentence consecutively or concurrently with appellant’s then-existing sentence.  The district court then stated that defense counsel had articulated just what it had been pondering: whether appellant’s sentence should run consecutively or concurrently with the sentence appellant was already serving, thus implying, but never explicitly stating, that it was adopting the parties’ agreement as to appellant’s status as a career offender.

Subsequently, in the district court’s memorandum denying appellant’s postconviction petition, it stated that the ground for the departure was the agreement of the parties.  But the agreement of the parties is not a valid departure ground.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  Even if the district court had made a clearer statement that it was sentencing appellant to an upward departure under the career-offender statute, that statement would still have been insufficient to support the departure for two reasons: the district court did not find that appellant had five prior convictions that met the statutory requirement and the district court did not find that appellant’s prior convictions were part of a pattern of criminal conduct.

First, there is no evidence in the record proving that appellant has prior convictions.  Appellant committed the instant offense while incarcerated, so he clearly has prior convictions, but there is no evidence to establish what those convictions were for or when they were committed.  While the district court imposed appellant’s sentence to run concurrently with the state sentence that he was then serving, it was apparently unaware that appellant was also serving a federal sentence at that time.  Thus, the district court clearly did not have the information it needed to make this decision.

Appellant pleaded guilty, and the district court moved immediately to sentencing.  The district court did not order a presentence investigation or utilize any other method for determining appellant’s criminal history.  Instead, the district court took the parties, including appellant, at their word that appellant had the requisite five prior felonies.  This is in violation of Minn. Stat. § 609.115, subd. 1(a) (2004), which mandates that

when the defendant has been convicted of a felony, the court shall, before sentence is imposed, cause a presentence investigation and written report to be made to the court concerning the defendant’s individual characteristics, circumstances, needs, potentialities, criminal record and social history, the circumstances of the offense and the harm caused by it to others and to the community.

 

(Emphasis added.)  In addition to the statute, Minn. R. Crim. P. 27.03, subd. 1, requires that the probation department complete a sentencing worksheet prior to the sentencing hearing.  Moreover, this court has previously addressed the issue of sentencing a defendant prior to completing a presentence investigation.  State v. Rock, 380 N.W.2d 211, 213 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).

These stipulations cannot be the basis for a sentence under the career-offender statute because the district court must find that each conviction qualifies as a prior conviction under the statute.  To qualify, appellant must have committed an offense and been convicted and sentenced before committing the next offense.  Minn. Stat. § 609.1095, subd. 1(c) (2004).  Thus, even if accurate, the fact that appellant has five prior felony convictions is not a sufficient basis in and of itself.

Second, the district court did not find that appellant’s current offense is part of a pattern of criminal conduct.  The state argues that a pattern was established because defense counsel stipulated that the district court would sentence appellant under that statute and the statute requires a finding of a pattern of criminal conduct and because the court asked appellant during sentencing if he was currently incarcerated for drug-related offenses.  But a stipulation that appellant qualifies as a career offender or the fact that he is currently serving a prison term for a drug offense does not prove that a pattern of criminal conduct exists.  The state must prove, and the district court must find, that appellant committed the current offense as part of a pattern, i.e., with similar “motive[s], purpose[s], results, participants, victims, or other shared circumstances” as previous offenses.  Gorman, 546 N.W.2d at 9.  That never occurred.

Therefore, the district court abused its discretion by relying solely on the parties’ stipulations as a reason for an upward departure and by determining that there were sufficient reasons in the record to support appellant’s sentence.

            Appellant argues that if this court remands the case, the district court must impose the presumptive sentence of one year and one day consecutive to the sentence appellant was serving when the district court initially sentenced him.  In support of that proposition, appellant cites State v. Geller, 665 N.W.2d 514 (Minn. 2003). 

            In Geller, the district court imposed consecutive sentences, including an upward durational departure on the second sentence.  665 N.W.2d at 515.  But the district court failed to articulate any reasons for the upward departure.  Id.  The supreme court held that the first rule in Williams is clear that if the district court does not state reasons on the record for the departure, the court will not allow a departure.  Id. at 517.  The supreme court recognized and acknowledged the precedent set by a line of court of appeals cases, however, that stand for the proposition that the appellate courts should give a sentencing court the opportunity to put reasons on the record on remand when it failed to do so initially.  Id.  Geller did not overrule those cases or that reasoning, as the supreme court merely stated that “[those cases] notwithstanding, we conclude that the first rule we set out in Williams is clear[.]”  Id.  As a result, the supreme court remanded the case with instructions to impose the presumptive sentence.  Id.

            Seven months before Geller, the supreme court issued State v. Lewis, 656 N.W.2d 535 (Minn. 2003).  In Lewis, the defendant pleaded guilty in exchange for a longer, but stayed, sentence.  656 N.W.2dat 536.  The supreme court remanded the case because the district court relied solely on the plea negotiation as grounds for an upward departure of more than four times the presumptive sentence, contrary to Misquadace, 644 N.W.2d 65.  Id. at 538.  In doing so, the court stated, “[W]e should not allow [defendant] to retain the benefit of the reduced charge component of the plea agreement if he obtains a reduction of the sentence component of the same plea agreement.”  Id. This court had previously remanded the case for imposition of the presumptive sentence, pursuant to Misquadace.  Id. The supreme court stated that, in doing so, this court

read[] Misquadace too narrowly.  Misquadace did not specifically address the question whether the district court, on remand, can reconsider the conviction component of a plea agreement if it finds no grounds for departure from the sentencing guidelines on the sentencing component of the same plea agreement.  We agree with the state’s argument that these two components are interrelated and that the district court should be free to consider the effect that changes in the sentence have on the entire plea agreement.

 

Id. at 538-39.  The supreme court then remanded the case and allowed the district court the option of vacating Lewis’s plea and reinstating the original charges, in order to prevent defendant from receiving a windfall, in that he would receive the benefit of his bargain and the state would receive nothing.  Id.      

            Here, the sentencing court did not state a reason supporting the upward departure.  A postconviction court cannot state reasons on the record that it did not state at sentencing in order to validate a defendant’s sentence.  Therefore, under the first Williams rule, when the district court fails to state a reason on the record for a departure no departure will be allowed.  Consequently, we reverse and remand for imposition of the presumptive sentence.

            Reversed and remanded.