Cited by

We may, however, do so if our review “would not work an unfair surprise on a party.”

But “[a] defendant may 2 A Blakely trial is conducted to determine whether aggravating sentencing factors exist, and “[a] criminal defendant has the right to a trial by jury or by the court.” (citing Blakely v. Washington, 542 U.S. 296, 301 (2004)); (applying Blakely to Minnesota’s career-offender statute).

insufficient to show a pattern of criminal conduct under career-offender statute), rev. 2 A Blakely trial is conducted to determine whether aggravating sentencing factors exist, and “[a] criminal defendant has the right to a trial by jury or by the court.” (citing Blakely v. Washington, 542 U.S. 296, 301 (2004)); (applying Blakely to Minnesota’s career-offender statute).

3 See Blakely v. Washington, 542 U.S. 296, 302-05 (2004) (holding that a defendant has a Sixth Amendment right to a jury trial to decide the facts on which an upward departure is based); -62 (Minn. 2005) (applying Blakely to Minnesota’s career-offender statute).

See, (“A determination that appellant’s prior convictions formed a pattern of criminal conduct as required for enhanced sentencing .

1 (2018); d 758, 759–60 (Minn. 2005) (citing postconviction petition as circumstance when a defendant may challenge a sentencing issue despite having failed to object during sentencing).

–60 (Minn. 2005); 247 (Minn. App. 1993), review denied (Minn. Dec.

-60 (Minn. 2005) (identifying circumstances where sentencing issues are not forfeited and exercising discretion to review sentencing issue that was not raised in district court proceedings).

State v. Henderson , (quotation omitted).

(citing State v. Henderson , ); see also Minn. R. Crim.

See State v. Henderson , , 762 (Minn. 2005) (requiring a jury, rather than the district court, to determine whether the defendant's history of bad acts constituted a pattern of criminal behavior under the career-offender statute, Minn. Stat. § 609.1095 , subd.

That same year, we held- in State v. Henderson that the determination of a pattern of criminal conduct did not fall within the prior-conviction exception because “the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception.”

(holding that verifying a juvenile had been adjudicated delinquent is permitted without a jury); Allen, d at 48 (holding that a finding that a defendant was on probation at the time of the prior conviction is permitted without a jury); cf. Her, d at 699 (requiring a jury to make a risk-level assessment); (requiring a jury to make a finding that a defendant’s prior convictions formed a pattern of criminal conduct).

or which the sentence is imposed is a felony and the jury determines “that the offender has five or more prior felony convictions” and “that the present offense is a felony that was committed as part of a pattern of criminal conduct.” The “determination of a pattern of criminal conduct under Minn. Stat. § 609.1095 goes beyond solely the fact of a prior conviction.”

(“[The court] ordinarily do[es] not consider issues raised for the first time on appeal, even when those issues are constitutional questions of criminal procedure or are challenges to the constitutionality of a statute.” ()).

This determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions.” (quotation omitted).

But we may address issues raised for the first time on appeal when the “interests of justice require their consideration and doing so would not work an unfair surprise on a party.” (citing Minn. R. Crim.

(discussing how a defendant’s failure to raise an issue at the time sentence is imposed can constitute a waiver of the defendant’s ability to raise the issue for later review).

ted durational departure from the presumptive sentence up to the statutory maximum sentence if the factfinder determines that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” A finding of a pattern of criminal conduct “goes beyond solely the fact of a prior conviction.”

4, goes beyond the fact of a prior conviction, noting that the supreme court concluded that “the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior conviction.”