Jamaul Wendell Graham, petitioner, Appellant, vs. State of Minnesota, Respondent.

Jamaul Wendell Graham, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-1862, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1862

 

Jamaul Wendell Graham, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed December 4, 2007

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 02069737

 

 

Ira W. Whitlock, Whitlock Law Office, LLC, 300 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101-1013 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Mike Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge. 

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing that he should not have been sentenced to an upward departure from the presumptive guidelines sentence.  Because the postconviction court did not abuse its discretion, we affirm.

FACTS

In March 2003, appellant Jamaul Wendell Graham pleaded guilty to one count of receiving profits from prostitution, in violation of Minn. Stat. § 609.322, subd. 1a(3) (2002).  In April 2003, the district court sentenced Graham to 86 months' imprisonment, a double upward departure from the presumptive guidelines sentence, after determining that Graham's crime was a "major economic offense" under the sentencing guidelines.    Graham did not file a direct appeal. 

In May 2006, Graham filed a petition for postconviction relief, seeking a reduction of his sentence to the presumptive guidelines sentence.  The judge who considered the petition was the same judge who sentenced Graham.  After determining that the record supports the finding that Graham's crime was a major economic offense, the postconviction court denied Graham's petition.  This appeal follows.

D E C I S I O N

I.         Graham's petition is timely.

As a threshold matter, the state argues that Graham abused the judicial process by waiting for three years to petition for relief.  In 2005, the legislature added a requirement to the postconviction-relief statute that a petition be filed within two years after a conviction.  See Minn. Stat. § 590.01, subd. 4(a) (2006).  The legislature enacted this limitation prospectively but provided that a person "whose conviction became final before August 1, 2005, shall have two years after the effective date of this act to file a petition for postconvictionrelief."  2005 Minn. Laws ch. 136, art. 14, § 13, at 1098. 

Graham's conviction became final on July 24, 2003, 90 days after his sentencing.  Therefore, Graham was required to file his petition within two years after August 1, 2005; because he filed his petition on May 12, 2006, it was timely. 

II.        The record supports the determination that Graham committed a major economic offense.

 

A defendant may seek to modify his sentence by filing a petition for postconviction relief.  Minn. Stat. § 590.01, subd. 1 (permitting postconviction courts to "vacate and set aside the judgment . . . or to resentence . . . or make other disposition as may be appropriate").  We review the denial of a petition for postconviction relief for an abuse of discretion, and our inquiry is limited to determining whether the record contains sufficient evidence to support the postconviction court's findings.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).  But we review a postconviction court's legal determinations de novo. Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff'd, 583 N.W.2d 562 (Minn. 1998).

Graham argues first that his crime was not a major economic offense and therefore the postconviction court abused its discretion by denying his petition for relief.  The sentencing guidelines provide a nonexclusive list of factors that justify a departure from the presumptive sentence.  Minn. Sent. Guidelines II.D.2 (2003).  Among these is a provision that a sentencing court may impose an upward durational departure if a defendant's crime is a major economic offense, which is defined as

an illegal act or series of illegal acts committed by other than physical means and by concealment or guile to obtain money or property . . . or to obtain business or professional advantage.  The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:

(a) the offense involved multiple victims or multiple incidents per victim;

(b) the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum offense specified in the statutes;

(c) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

(d) the defendant used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships; or

(e) the defendant has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions. 

 

Minn. Sent. Guidelines II.D.2.b(4).  At sentencing, the district court determined that (1) Graham's offense involved multiple victims or multiple incidents per victim[1]; (2) Graham received profits of six to seven thousand dollars per month; and (3) Graham's offense was part of an ongoing criminal operation that occurred over a period of months and involved a high degree of sophistication or planning.

Graham argues first that the record does not support a finding that Graham's offense involved multiple victims.  Although Graham concedes that a juvenile prostitute who worked for him was a victim, he contends that the other prostitutes were "business partners," and, therefore, he pleaded guilty to a crime involving only one victim.  But at his plea hearing, Graham admitted that he regularly employed three prostitutes and, at times, as many as ten others.  Graham also admitted to taking the earnings of all 13 women.  The postconviction court did not abuse its discretion when it found that Graham's offense "involved multiple victims or incidents per victim." 

Graham contends next that his offense "did not involve a high degree of sophistication nor occurred [sic] over a lengthy period of time."  Cf. Minn. Sent. Guidelines II.D.2.b(4)(c).  Minnesota courts have broadly construed the requirement of a "high degree of sophistication or planning" in this context.  See, e.g., State v. Rott, 313 N.W.2d 574, 574 (Minn. 1981) (affirming finding of high degree of sophistication or planning when defendant passed "a large number" of bad checks); State v. Hamer, 341 N.W.2d 578, 581 (Minn. App. 1983) (affirming finding of high degree of sophistication or planning when defendant, a bookkeeper, swindled a vulnerable victim).  The record shows that (1) Graham operated a "hierarchy of direct ‘employees' and subcontractors and independent contractors"; (2) Graham used multiple business phones and a "phone chain" to schedule appointments; and (3) Graham bought newspaper advertisements to promote his enterprise.  The postconviction court did not abuse its discretion by finding that Graham's offense involved a high degree of sophistication or planning. 

Graham also asserts that his use of multiple phones and advertising could not serve as part of the basis for an upward sentencing departure because such use is "the exact conduct contemplated by the legislature when it enacted" the receiving-profits-from-prostitution offense.  See State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983) (holding that the elements of an offense cannot be used as aggravating factors to impose an upward sentencing departure for that same offense).  But the offense of receiving profits from prostitution is defined, in relevant part, as:

Whoever, while acting other than as a prostitute or patron, intentionally does any of the following may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both . . . (3) receives profit, knowing or having reason to know that it is derived from the prostitution, or the promotion of the prostitution, of an individual.

 

Minn. Stat. § 609.322, subd. 1a (2002).  Because the statute does not make the use of business phones or advertising an element of the offense, the postconviction court did not abuse its discretion by considering Graham's use of multiple business phones and advertising as evidence of a high degree of sophistication or planning. 

The record also does not support Graham's claim that his offense did not occur over "a lengthy period of time."  Graham admitted at his plea hearing that his offense occurred over a period of seven months.[2]  Minnesota courts have affirmed findings that this element of the definition of major economic offense was satisfied in cases involving even shorter periods.  See, e.g., Rott, 313 N.W.2d at 574 (six months); State v. O'Hagan, 474 N.W.2d 613, 624 (Minn. App. 1991) ("several" months), review denied (Minn. Sept. 25, 1991); State v. O'Brien, 429 N.W.2d 293, 296 (Minn. App. 1988) (three months), review denied (Minn. Nov. 16, 1988).  The record supports the determination that Graham's offense occurred over a lengthy period of time. 

            We conclude that the postconviction court did not abuse its discretion by denying Graham's petition because the record supports the existence of at least two of the factors that define a major economic offense.  And because only two factors must be shown, we need not analyze the third factor addressed by the postconviction court.

III.      The reasons for the upward sentencing departure were adequately stated in writing and orally on the record.  

 

Graham argues finally that, at his sentencing, the district court did not adequately state on the record its reasons for an upward departure.  See Minn. Sent. Guidelines II.D (requiring "written reasons which specify the substantial and compelling nature of the circumstances" that justify a departure from the presumptive sentence); see also Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (noting that oral findings on the record satisfy the Sentencing Guideline's requirement for the district court to explain its reasons for departure).

Graham's argument is without merit.  At Graham's sentencing hearing, the district court stated:

And besides being supported by the plea negotiation and your agreement, I'm also finding that the activities you engaged in constituted an ongoing illegal criminal enterprise that occurred over the course of at least ten months involving multiple individuals, including business phones and advertising, and that you received profits, by your own account to the probation officer, of six to seven thousand dollars a month.  And on that basis, I'm justifying the upward departure. 

 

Additionally, the district court completed a departure report on the day of sentencing in which it expressly found the existence of factors supporting its conclusion that Graham's crime was a major economic offense.  Because the record clearly shows that the district court stated its reasons for the upward departure both in writing and orally on the record, the postconviction court did not abuse its discretion by denying Graham's petition on this ground.

Affirmed.

           

 

 

 

[1] The sentencing court stated that Graham's offense involved "multiple individuals."  But a review of the entire record, including the departure report and the hearing transcripts, makes clear that the district court was referring to multiple victims of Graham's offense. 

[2] Graham notes that the district court incorrectly stated at sentencing that the operation was in existence for ten months.  But the record shows that the offense occurred from February 2002 to August 2002, a period of seven months.