Opinion
No. C4-00-1981.
Filed April 3, 2001.
Appeal from the District Court, Ramsey County, File No. K2992681.
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant)
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant George Arden Hobbs claims the district court erred in sentencing him to a double durational departure under the repeat felony offender statute. We affirm.
FACTS
A Roseville police officer arrested Hobbs on September 7, 1999, near the intersection of Larpenteur and Victoria. Hobbs was driving a 1983 Chrysler New Yorker owned by Sparkle Auto in Maplewood. The car had a punched ignition and was worth $400. Hobbs claimed he got the car from someone named Tony at a bar the night before.
Hobbs pleaded guilty to theft of a motor vehicle in violation of Minn. Stat. § 609.52 (1998). The prosecutor agreed to limit her sentencing request to double the guidelines sentence. The court sentenced Hobbs to a double durational departure of 38 months as a repeat felony offender under Minn. Stat. § 609.1095 (1998). Hobbs petitioned for postconviction relief requesting resentencing to the presumptive guidelines sentence of 19 months. Hobbs claimed the state did not establish the pattern of criminal behavior required to justify the double durational departure under the repeat offender statute. The court denied the petition for postconviction relief. Hobbs appeals.
DECISION
This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court's findings. Jihad v. State, 594 N.W.2d 522, 524 (Minn. 1999). We will not disturb a postconviction court's decision absent an abuse of discretion. Id.
The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court may depart from the presumptive sentence up to the statutory maximum sentence if the court
finds and specifies on the record that [1] the offender has five or more prior felony convictions and that [2] the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (1998). The district court found Hobbs met both criteria.
Hobbs claims his prior and current offenses constitute an extensive criminal history but do not form a pattern of criminal conduct. A pattern of criminal conduct may be demonstrated by "criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics." State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). The sentencing court may consider both prior felony and misdemeanor convictions in determining whether a criminal pattern exists. Id.
Since 1976, Hobbs has been convicted of a series of nine felonies and five misdemeanors, with short gaps between them. Five of the prior felonies and three of the misdemeanors were theft-related, including a 1995 felony conviction for theft of a motor vehicle. The other four felonies were drug-related. The court stated that the misdemeanor and gross misdemeanor charges include three theft related offenses and a fleeing a police officer in a motor vehicle. All four of those * * * charges do have something to do with the current auto theft in that it is theft related and it is a motor vehicle.
The court found it very clear * * * that there is not only an extensive criminal history, but a pattern of criminal behavior highlighted by drug related cases and theft related cases.
Hobbs's previous convictions involving theft and motor vehicles were similar in motive and intent to the current offense. We conclude there was sufficient evidence to support finding a criminal pattern.
Hobbs also argues the 38-month sentence was inappropriate and excessive in proportion to the crime of stealing a $400 car. This court
may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court.
Minn.R.Crim.P. 28.05; see also Minn. Stat. § 244.11 (1998); State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (modifying sentence that unfairly exaggerated criminality of defendant's conduct). The 38-month sentence was double the presumptive sentence but was below the statutory maximum of 60 months for the crime. Minn. Stat. § 609.52, subd. 3(3)(c) (1998). The state agreed to limit its sentencing request to double the presumptive sentence. The 38-month sentence was not unreasonable, inappropriate, or excessive. The district court did not abuse its discretion in sentencing Hobbs to 38 months under the repeat offender statute.