Opinion
A20-1625
10-05-2021
State of Minnesota, Respondent, v. Brett Michael Wood, Appellant.
Otter Tail County District Court File No. 56-CR-20-1383
Considered and decided by Smith, Tracy M., Presiding Judge; Bjorkman, Judge; and Hooten, Judge.
ORDER OPINION
Louise Dovre Bjorkman Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Brett Michael Wood was convicted of attempted theft of a motor vehicle following a court trial. The district court imposed an aggravated sentence under Minn. Stat. § 609.1095, subd. 4 (2018), the career-offender statute. Wood challenges his sentence, arguing that the district court violated Blakely v. Washington, 542 U.S. 296 (2004), because Wood did not waive his right to have a jury determine whether he committed the offense as part of a pattern of criminal conduct and that the Blakely violation was not harmless.
2. The career-offender statute permits a district court to impose an aggravated sentence up to the statutory maximum if (1) "the offender has five or more prior felony convictions" and (2) the present felony offense "was committed as part of a pattern of criminal conduct." Minn. Stat. § 609.1095, subd. 4. A district court may find the facts of a defendant's prior convictions. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). But a defendant is entitled to have a jury determine whether the present offense is part of a pattern of criminal conduct. State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005). In the absence of a valid jury waiver, "the imposition of an enhanced sentence based on the district court's finding of a pattern of criminal conduct" violates Blakely. Id.
3. The state concedes that a Blakely violation occurred. We agree. While Wood validly waived his right to a jury trial on the question of guilt, the record shows he did not make the required "express, knowing, voluntary, and intelligent waiver" of his right to a sentencing jury. See State v. Dettman, 719 N.W.2d 644, 646 (Minn. 2006).
4. We review Blakely violations under the harmless-error standard. State v. Reimer, 962 N.W.2d 196, 199 (Minn. 2021). "An error is not harmless if there is any reasonable doubt the result would have been different if the error had not occurred." State v. DeRosier, 719 N.W.2d 900, 904 (Minn. 2006).
5. Wood argues that the Blakely violation was not harmless because a jury could have reached a different conclusion as to whether he committed the present offense as part of a pattern of criminal conduct. A pattern of criminal conduct "may be demonstrated by reference to past felony or gross misdemeanor convictions . . . where such acts are similar to the present offense in motive, purpose, results, participants, victims or other characteristics." State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). In Gorman, the pattern included a present conviction of second-degree murder and prior convictions of assault and disorderly conduct. Id. at 9-10. This court has affirmed aggravated sentences based on Gorman's broad definition of what constitutes a pattern of criminal conduct. See State v. McClenton, 781 N.W.2d 181, 195 (Minn.App. 2010) (holding evidentiary error harmless because jury would have likely concluded the defendant's "convictions of three attempted simple robberies, third-degree sale of a controlled substance, fifth-degree possession, criminal vehicular operation, and attempted third-degree possession . . . were part of a pattern of criminal conduct related to his habitual illegal drug use"), rev. denied (Minn. June 29, 2010); State v. Outlaw, 748 N.W.2d 349, 357 (Minn.App. 2008) (stating jury could reasonably conclude defendant's present first-degree burglary offense shared similar characteristics with his seven prior burglary convictions and one attempted burglary conviction to "establish a pattern of criminal conduct"), rev. denied (Minn. July 15, 2008); see also State v. Hendrickson, 528 N.W.2d 263, 268 (Minn.App. 1995) (stating present burglary conviction and prior convictions of felony theft and credit-card fraud "met the statutory requirements of a 'pattern of criminal conduct'"), rev. denied (Minn. Apr. 27, 1995).
6. All of Wood's convictions involve motor vehicles. His present conviction is attempted theft of a motor vehicle. His prior felony convictions were for: motor vehicle theft (three); receiving stolen property, where the property was a motor vehicle (two); possession of burglary or theft tools, where the tools included a window punch; and fleeing a peace officer in a stolen motor vehicle. On this record, we are persuaded that there is no reasonable doubt that a jury would have found that Wood committed the present offense as part of a pattern of criminal conduct. Accordingly, the error in failing to have a jury determine whether Wood committed the present offense as part of a pattern of criminal conduct was harmless. See DeRosier, 719 N.W.2d at 904.
7. Although Wood is not entitled to relief based on the argument he advanced on appeal, the state candidly advised the court that Wood's seven prior felony convictions may not satisfy the first requirement of the career-offender statute-that the defendant have five prior felony convictions. This court has previously interpreted the statute to require the prior convictions to be separate and sequential to one another: "i.e., offense/conviction, offense/conviction, offense/conviction, etc." State v. Huston, 616 N.W.2d 282, 283 (Minn.App. 2000). Because Wood did not raise this issue on appeal, we do not address it. See State v. Vang, 847 N.W.2d 248, 259 n.4 (Minn. 2014) (declining to address the sufficiency of the evidence on one prong of the criminal statute in question where the defendant only challenged the sufficiency of the evidence on a different prong of the statute). But we note that Wood may seek relief on this basis in the district court. See Minn. R. Crim. P. 27.03, subd. 9 (permitting a district court to correct an unauthorized sentence "at any time"); Reynolds v. State, 888 N.W.2d 125, 128 (Minn. 2016) (concluding that a defendant may challenge a conditional-release term through a motion to correct a sentence under rule 27.03).
IT IS HEREBY ORDERED:
1. The district court's sentencing order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.