State of Minnesota, Respondent, vs. John C. Henderson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA IN COURT OF APPEALS

A03-1898

 

State of Minnesota,

Respondent,

 

vs.

 

John C. Henderson,

Appellant.

 

Filed August 31, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 02097576

 

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

            On appeal from the sentence imposed for his first-degree burglary conviction, appellant argues that his five prior qualifying felony convictions do not constitute a "pattern of criminal conduct" and that the district court therefore abused its discretion in departing upward from the sentencing guidelines under the career-criminal statute.  Because the district court did not abuse its discretion, we affirm.

FACTS

 

            Appellant John C. Henderson admitted that on December 6, 2002, he (1) entered victim B.L.K.'s apartment through the window, (2) woke up B.L.K. while he was nude and attempted to get into her bed, and (3) hit B.L.K. in the face when she screamed.  B.L.K. stated Henderson emptied her purse before he left her apartment.  After Henderson pleaded guilty to first-degree burglary, the district court sentenced him to 144 months in prison as a career criminal.  Henderson has eight prior felony convictions.  This appeal followed.

D E C I S I O N

 

            Henderson argues that the district court abused its discretion when it sentenced him as a career criminal under Minn. Stat. § 609.1095, subd. 4 (2002), asserting that his prior convictions do not establish a pattern of criminal conduct sufficient to sentence him as a career criminal.  This court will not disturb a district court's departure from a presumptive guidelines sentence absent a clear abuse of discretion.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995).  The sentencing court may depart from the presumptive guidelines sentence if (1) the judge finds and specifies in the record that the offender has five or more prior felony convictions and (2) the present offense is a felony that was committed as a part of a pattern of criminal conduct.  Minn. Stat. § 609.1095, subd. 4; State v. Huston, 616 N.W.2d 282, 283-84 (Minn. App. 2000).  Henderson concedes that he has the requisite number of felonies, but argues that his offenses do not show a pattern of criminal conduct.  A pattern may be demonstrated by proof of criminal conduct similar in motive, purpose, results, participants, victims, or other shared characteristics.  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). 

Henderson attempts to distinguish his case from those where a pattern was found, citing Gorman, 546 N.W.2d at 10 (holding a series of conduct which involves "attack upon other persons" shows "pattern"); and Flemino, 529 N.W.2d at 503-04 (holding that a progressive intensification in seriousness of activity shows "pattern").  Henderson argues that because his "prior convictions span 20 years" rather than a four-year period of time as in Flemino, and do not include violent, assaultive behavior as in Gorman, that a pattern of criminal behavior is not established.  But this argument is without merit because the statute does not require that the prior convictions occur in a short period of time.  If anything, a history of convictions spanning 20 years tends to be more indicative of a career criminal than a short period of four years.  Furthermore, nothing in the statute limits prior convictions to those that include violence toward or assault of another. 

Here, Henderson's prior convictions include at minimum eight separate sentencing events that resulted in felonies, five of them are burglary- or theft-related, including:

1988 - Theft from Person

1989 - Simple Robbery/Theft from Person

1993 - Second-degree Burglary

1993 - Motor Vehicle Theft

1997 - Receiving Stolen Property.

 

Henderson has a long history of larcenous conduct that fits the pattern of a career criminal, and he fails to show that the district court abused its discretion. 

We note Henderson's prior record meets the number of felony convictions required and the legal conclusion for "pattern of criminal conduct"; thus, the verdict alone supports the sentence, and Blakely does not apply.  See Blakely v. Washington, 124 S. Ct. 2531 (2004) (holding a verdict alone that does not require additional findings may authorize the imposition of an upward-durational-departure sentence).

Pro Se Arguments

            Henderson's statements in his pro se brief could be construed as raising the issues of (1) ineffective assistance of counsel, (2) his plea not knowing, voluntary, and intelligent, and (3) violations of his Fourth and Fifth Amendment rights, among possibly other issues.  But Henderson did not raise these issues with the district court.  Such issues are properly addressed in a postconviction proceeding, and we will not review them here.  See Roby v. State,547 N.W.2d 354, 357 (Minn. 1996) (holding that courts will generally not decided issues which were not raised before the district court).

Affirmed.