State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1083

State of Minnesota,
Respondent,

vs.

Gregory Gregory Clemons,
Appellant.

Filed May 8, 2017
Affirmed
Connolly, Judge

Lake County District Court
File No. 38-CR-15-8

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Laura M. Auron, Lake County Attorney, Two Harbors, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bradford W. Colbert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his career -offender sentence of the statutory maximum 60
months in prison after he pleaded guilty to financial -transaction-card fraud. Because we
see no abuse of discretion in the sentence, we affirm.
FACTS
Appellant Gregory Clemons, 56, pleaded guilty to financial -transaction-card
frauduseno consent and to misdemeanor theft. At the plea hearing, he was questioned
by his attorney as to his prior convictions.
Q: Would you also agree that . . . the transaction-card fraud
that you [pleaded] guilty to just a couple minutes ago . . . that
that’s a felony offense?
A: Yes.
. . . .
Q: And would you also agree that that financial transaction
card fraud charge is . . . a theft-related offense?
A: Yes, sir.
Q: And you’ve got a number of prior theft-related offenses
on your . . . record, correct?
A: Unfortunately. Yes, sir.
Q: And would you . . . agree that —that transaction card
fraud charge was committed as a pattern of criminal behavior?
A: Yes, sir.
Q: And you and I have discussed the definition of pattern
of criminal conduct in the past.
A: Um, yes sir.
Q: . . . [I]t’s not identical conduct, but similar in motive,
participants, results?
A: It’s the same.
Q: . . . [A]ll the theft-related behavior, you would agree that
. . . at least under the career offender statute that that is a pattern
of criminal conduct?
A: You bet it is.

3
(Emphasis added).
Appellant also said he understood that five prior felony convictions were required
for career -offender sentencing , that he had 12 prior felony convic tions, and that his
sentence was likely to be in the presumptive range, 18 to 60 months, and was “up to the
judge.”
Appellant’s pre sentence investigation (PSI) stated that, between 1993 and 2012,
appellant had committed nine felonies in Minnesota: (1) aiding and abetting simple
robbery; (2) receiving stolen property, (3) offerin g a forged check, (4) attempted theft of
property, (5) burglary, (6) burglary, (7) t hird-degree burglary, (8) third-degree burglary,
and (9) felony theft from a person –indifferent to owner rights, resulting in a criminal -
history score of eight. The PSI also noted that the presumptive sentence for the offense on
which appellant was being sentenced was 18 to 25 months but recommended an increased
sentence of 60 months based on appellant’s previous felony convictions and on the fact
that his offense was part of a pattern of criminal conduct.
At the sentencing hearing, the victim of the financial-transaction-card fraud testified
that she had employed appellant as a handyman, he had been a good worker, he did not get
the help he needed to handle his mother’s death, and she thought counseling would be more
effective than prison in helping him.
The state’s attorney testified that appellant (1) had been in prison at least ten times,
(2) had never successfully completed supervised release, (3) had 78 write -ups while
incarcerated, (4) had a pattern of criminal behavior for almost 40 years, (5) had 41
convictions, (6) habitually reoffended soon after release from incarceration , (7) has been
4
eligible for sentencing as a career offender since 1990 , and (8) was sentenced as a career
offender in 1994.
Appellant’s attorney testified that appellant’s previous offenses were already
factored into his sentence through his criminal-history score; his fraudulent use of another’s
financial-transaction card amounted to only $476.66, near the low end of the $250 to
$2,500 range for that crime; he suffered from a traumatic brain disorder resulting from his
attempt to hang himself in prison in 1994; he relapsed into drug use to deal with the shock
of his mother’s death; although he has no drug offenses, his financial crimes were
committed to obtain financing for his drug habit; and an aggrava ted sentence would be
preventative detention.
The district court said:

[I]t’s not about the fact that you stole $500. It’s about
the fact that you have been commit ting crimes for over 35
years. . . .
. . . .
You have such a lengthy history of criminal a ctivity in
this matter that I have no problem at all granting . . . an upward
departure in the sentencing of this matter because that’s what
the . . . [career] offender statute is for. You have clearly
demonstrated that you are a . . . [career] offender. You have a
. . . lengthy criminal history, and despite the fact that your most
recent crime spree may be viewed [as] small, . . . when viewed
in light of the total history of your case, it’s a lengthy history.
It’s a substantial history, and it justifies substantial punishment
in your case.
You [yourself] and through your attorney have made
arguments that much of what happened has been the result of
substance abuse. There’s . . . very little independent evidence
of that – or that your problems have been the result of perhaps
mental illness as a result of the traumatic brain injury.
5
The district court sentenced appellant to 60 months, finding that he was “ eligible for that
sentence pursuant to the career offender statute.”
Appellant challenges his sentence, arguing that there was not a sufficient factual
basis to sentence him as a career offender and that imp osing the statutory -maximum
sentence was an abuse of discretion.
D E C I S I O N
1. Career-Offender Determination
Appellant argues that he was incorrectly determined to be a career offender because
he had only one prior conviction of transaction-card fraud and that was many years ago, so
his present offense was not part of “a pattern of criminal conduct.” See Minn. St at.
§ 609.1095, subd. 4 (2014) (providing for an upward durational departure if an offender
has five or more prior felony convictions and the present offense was part of a pattern of
criminal conduct).
In reviewing a challenge to the sufficiency of the evi dence to establish a pattern of
criminal conduct, an appellate court is “limited to determining whether the evidence was
sufficient to support the conclusion reached by the [factfinder]” and the record is reviewed
“in the light most favorable to the [factf inder’s] determination.” State v. Outlaw , 748
N.W.2d 349, 357 (Minn. App. 2008), review denied (Minn. July 15, 2008).
“A pattern of criminal conduct is established upon proof of criminal conduct similar,
but not identical, in motive, purpose, results, participants, victims or other shared
characteristics.” Id. (quotations omitted). Appellant’s list of prior convictions on his PSI
reads:
6
1. Felony Simple Robbery count 3 . . .
. . . .
4. Felony Financial [transaction] Card Fraud
5. Felony Receiving Stolen Property
6. Felony Simple Robbery (Aid/Abet)
7. Felony Attempt[ed] Theft of Property
8. Felony Receiving Stolen Goods
9. Felony Offering a Forged Check
. . . .
12. . . . Felony Theft from a Person

All these crimes had as their motive obtaining others’ property. In addition, there are five
counts of felony burglary, all of which involved theft. It was not necessary that appe llant
have five prior financial -transaction-card-fraud offenses to conclude that his most recent
offense was part of a patter n of criminal conduct. See id. (“[C]onduct similar, but not
identical, in motive” is sufficient to establish a pattern of criminal conduct).
Moreover, appellant himself admitted he met the requirements for a career-offender
sentence at the plea hearing when he was questioned by his attorney. When asked, “[A]ll
the theft-related behavior, you would agree that . . . at least under the career offender statute
that that is a pattern of criminal conduct? ” appellant answered, “You bet it is.” Appellant
does not explain the contradiction between his answers at the plea hearing and his argument
on appeal.
When a defendant “admitted at his guilty -plea hearing he ‘had five or more prior
felonies’ and ‘that this particular offense forms a pattern with those offenses,’” those
admissions “[could] be used to increase the sentence above the presumptive guidelines
sentence.” Vickla v. State , 793 N.W.2d 265, 269 (Minn. 2011). Appellant’s admissions
7
and his criminal record provided a sufficient factual basis for t he district court’s
determination that appellant was a career offender.
2. The Sentence
[An appellate court r eviews] a district court’s decision
to depart from the presumptive guidelines sentence for an
abuse of discretion. If the reasons given are legally permissible
and factually supported in the record, then [it] will affirm the
departure.
. . . [The career -offender] statute does not limit the
[district] court’s discretion and does not require any additional
findings before sentencing a defendant to the statutory
maximum.

Id. (quotations and citations omitted). Appellant argues that his statutory -maximum
sentence was excessive and an abuse of discretion. We disagree. Contrary to appellant’s
argument, the fact that he charged less than $500 to an other person’s credit card did not
make him guilty of only a misdemeanor; Minn. Stat. § 609.821 (2014), under which he
was convicted, provides that financial-transaction-card fraud is a felony. Appellant offers
no support for the implication that a reviewing court may disregard the statute under which
an offender was convicted and consider another statute when reviewing the sentence.
Moreover, the district court made it clear that the sentence was not based exclusively on
appellant’s current offense but r ather on the fact that appellant has “been committing
crimes for over 35 years.” When sentencing under t he career-offender statute, a district
court is entitled “ to consider a defendant’s entire cr iminal history to determine . . . the
length of the sentence that will be imposed.” Id. at 271.
“If the reasons given [for departing from the presumptive guidelines sentence] are
legally permissible and factually supported in the record, then [this court] will affirm the
8
departure.” Id. at 269 (quotations omitted). The district court’s reasons meet both those
criteria.
Affirmed.