Opinion
No. C3-02-809
Filed September 10, 2002.
Appeal from the District Court, Ramsey County, File No. K7002022.
Mike Hatch, Attorney General,; and Susan Gaertner, Ramsey County Attorney, Richard J. Dusterhoft, (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Halbrooks, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 Diane Marilyn Hoffman pleaded guilty to Violation of Harassment Restraining Order and three months later pleaded guilty to Pattern of Harassing Conduct. On appeal she contends she should not have been sentenced separately for the two convictions because all of the harassing behavior was a single behavioral incident. We affirm.
DECISION
A district court has broad discretion in sentencing, and this court will not reverse absent a clear abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). A sentencing court, with certain exceptions, may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996). See State v. Johnson, 273 Minn. 394, 400, 141 N.W.2d 517, 522 (1966) (explaining that the legislature intended to broaden the protection afforded against double jeopardy).
In determining whether a course of conduct is a single behavioral incident, this court considers time and place, and also whether the conduct was motivated by an effort to obtain a single criminal objective. Id. at 404, 141 N.W.2d at 525. It is not a mechanical test, but requires an examination of all the facts and circumstances. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).
In State v. Richardson, 633 N.W.2d 879, 888-89 (Minn.App. 2001), this court concluded the appellant's behavior was not a single behavioral incident because there were multiple victims, the harassment spanned eight years, and occurred in different places. See also State v. Secrest, 437 N.W.2d 683, 685 (Minn.App. 1989) (upholding appellant's conviction where incidents of sexual assault on same victim were separated by several hours and interrupted by other activities).
Here the conduct specified in appellant's "pattern of harassing conduct" occurred on May 5, 1997, June 16, 1997, January 19, 1998, December 14, 1998, September 18, 1999, October 1999, and July 4, 2000. The conduct that violated the restraining order occurred in April 2000. In addition, the harassing conduct that constituted the violation of the restraining order and the conduct that constituted the "pattern" occurred in several different locations, including the victim's home, work, and his apartment. Thus, despite the fact that the April conduct occurred before the last conduct specified in the "pattern," we conclude there was not a single behavioral incident because the violation involved separate conduct not included in the pattern, which involved multiple victims, different times, and various locations.
Appellant further argues that she was denied due process because when she pleaded guilty to a pattern of harassing behavior she thought the "pattern" would include the April behavior. But as noted, the amended complaint charging a pattern of harassing conduct does not include the April conduct in question. Moreover, the transcript for the hearing at which appellant pleaded guilty to pattern of harassing conduct indicates that the prosecutor reviewed the dates contained in the complaint and did not discuss the April 30 conduct. Further, the court's order stated the April conduct was not part of the factual basis for the "pattern" conviction/sentencing. And finally, appellant's attorney was present at the hearing and did not ask for a clarification as to what dates were included. See State v. Bowen, 560 N.W.2d 709 (Minn.App. 1997) (affirming a conviction where a misdemeanor OFP violation was considered in bringing a pattern of harassing conduct). Because the judge, the prosecutor and the amended complaint never mentioned the April conduct as part of the conduct causing a pattern of harassing behavior, we conclude appellant's due process rights were not violated.