Opinion
No. A06-384.
Filed February 13, 2007.
Hennepin County District Court, File No. 00076896.
Jeffrey J. Hookham, Rush City, MN 55069 (pro se appellant).
Lori Swanson, Attorney General, St. Paul, MN 55101-2134; and
Mike Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN 55487 (for respondent).
Considered and decided by WORKE, Presiding Judge; KLAPHAKE, Judge; and ROSS, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Jeffrey Hookham is serving a prison sentence for killing two people in 2000 while recklessly evading police. Hookham now appeals pro se from an order denying his postconviction motion. He seeks to modify a 2003 sentence imposed after he pleaded guilty to two counts of fleeing a police officer resulting in death. Hookham argues that the district court erred by sentencing him to both a consecutive sentence on one conviction and to a double-upward durational departure on the other. He also argues that the Supreme Court's decision in Blakely v. Washington entitled him to have a jury rather than a judge determine whether aggravating factors supported the imposition of the sentence departure. Because Hookham's arguments lack legal support, we affirm.
FACTS
Hookham moved the district court to modify his 2003 sentences for two convictions of fleeing a police officer in a motor vehicle resulting in death. The charges arose from a tragic collision that occurred on a summer evening in 2000 while police were attempting to stop Hookham for speeding. Hookham, fleeing police, disregarded a stop sign in a residential neighborhood and collided with another car, immediately killing one of its two occupants. Police estimated that Hookham, who registered a blood-alcohol concentration of 0.14, was traveling between 50 and 64 miles per hour at the point of impact. Hookham had reached speeds of 80 miles per hour, ran six stop signs, jumped the sidewalk, and crashed into a fence, but he continued to flee the police. Police apprehended Hookham as he tried to run away on foot after the fatal crash. The second occupant died from his injuries a few days later, and the state charged Hookham with two counts of third-degree murder and two counts of fleeing a police officer resulting in death.
Hookham pleaded guilty in November 2003 to the two counts of fleeing a police officer resulting in death and admitted to sufficient facts to support the plea. Under the plea agreement and the sentencing guidelines in effect at the time of the offenses, the district court sentenced Hookham to 112 months' imprisonment on one count, at the upper end of the presumptive range. The district court identified five aggravating factors and sentenced Hookham to 96 months' imprisonment on the second count, to be served consecutive to the 112-month sentence, representing a double upward departure from the presumptive sentence. Hookham did not directly appeal his convictions or sentences.
Hookham filed a postconviction motion in October 2005 to correct the sentences. He claimed that the 112-month sentence and the consecutive 96-month sentence resulted from a departure from the sentencing guidelines in violation of the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because the departures rest on aggravating factors determined by the district court, rather than by a jury. Hookham asked the district court to correct the sentences by imposing the presumptive terms of 108 months and 48 months, to run concurrently.
The district court denied the motion. It found that the Blakely decision did not apply retroactively to Hookham's sentence, that Hookham had admitted to the facts of the complaint under oath at the time of sentencing, and that the sentencing court provided substantial reasons justifying the double durational departure on the permissive consecutive sentence. This appeal follows.
DECISION
Hookham argues that the district court erred by both sentencing him to a consecutive sentence and imposing a durational departure. He relies on Comment II.F.04 to the Minnesota Sentencing Guidelines, which addresses when a court may impose consecutive sentences. Although Hookham acknowledges that consecutive sentences are permitted for multiple current felony convictions involving multiple victims, he contends that consecutive sentences are not allowed when the court imposes an upward durational departure for one of the convictions. We find Hookham's argument unpersuasive. The comment explains that the limitation on imposing permissive consecutive sentences when a durational departure is imposed exists only "when the circumstances involve one victim and a single course of conduct." Minn. Sent. Guidelines cmt. II.F.04. But Hookham's actions killed two people. The limitation therefore does not apply. The sentencing guidelines provide that consecutive sentences are permissive for current felony convictions of fleeing a police officer in a motor vehicle. Minn. Sent. Guidelines II.F.
A district court has broad discretion to impose consecutive sentences for multiple felony convictions involving multiple victims State v. Richardson, 670 N.W.2d 267, 284 (Minn. 2003); see also State v. Rhoades, 690 N.W.2d 135, 138 (Minn.App. 2004) (noting that imposition of multiple sentences is permitted when offenses involve multiple victims and sentencing does not unfairly exaggerate criminality of defendant's conduct). So long as the sentences imposed are not disproportionate to the crimes committed, we will not reverse a district court's decision to impose consecutive sentences. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).
We cannot conclude that the consecutive sentence and double departure were disproportionate to Hookham's crimes, and the district court therefore did not abuse its discretion. Hookham had attempted to evade police at speeds of nearly 80 miles per hour while driving intoxicated through a residential neighborhood on an early August evening. He ignored six stop signs, crossed a sidewalk, crashed into a fence, and he eventually ran a seventh stop sign at more than 50 miles per hour, killing two people. Hookham then pleaded guilty to two counts of fleeing a police officer resulting in death and agreed to the anticipated sentences — the same sentences he now challenges — during the plea colloquy. Imposing permissive, consecutive sentences totaling 208 months' imprisonment did not unfairly exaggerate Hookham's criminal conduct, but rather "recognize[d] the severity of each offense." State v. Branson, 529 N.W.2d 1, 4 (Minn.App. 1995) (noting that a consecutive sentence may be imposed to recognize the severity of each offense if there is more than one victim), review denied (Minn. Apr. 18, 1995).
Hookham's argument that the imposition of the consecutive sentence itself is a departure is mistaken. The imposition of permissive consecutive sentences is not considered a departure from the sentencing guidelines. Minn. Sent. Guidelines II.F; see also O'Meara v. State, 679 N.W.2d 334, 341 (Minn. 2004) (noting that consecutive sentencing for multiple current felony convictions of crimes against separate victims is not a departure from the guidelines).
We also find no merit to Hookham's claim that, under the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), he is entitled to the presumptive sentence because the judge and not a jury found the aggravating factors to justify the upward departure. Blakely does not apply retroactively to Hookham's sentencing. The Minnesota Supreme Court has held that while Blakely created a new rule of constitutional criminal procedure, it was not a watershed rule and, therefore, will not be applied to cases that were final before Blakely's effective date. State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005). Hookham pleaded guilty and was sentenced on November 4, 2003, and did not file a direct appeal of his convictions. His convictions became final 90 days later on February 2, 2004. See Minn. R. Crim. P. 28.02, subd. 4(3) (mandating that a criminal defendant must appeal a conviction within 90 days); O'Meara, 679 N.W.2d at 340 (noting that a conviction becomes final after time period to perfect direct appeal expires). The United States Supreme Court decided Blakely v. Washington on June 24, 2004, nearly five months after Hookham's convictions became final. Because Hookham's convictions became final before the decision in Blakely, the constitutional rule announced in Blakely cannot retroactively support his collateral challenge.