This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Marcus Mable, Jr.,



Filed October 8, 2002

Affirmed in part, reversed in part, and remanded

Randall, Judge


McLeod County District Court

File No.  K7-01-161



John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600. Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Michael K. Junge, McLeod County Attorney, Mark Metz, Assistant County Attorney, 830 East Eleventh Street, Suite 112, Glencoe, MN 55336 (for respondent)



            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction and sentencing in McLeod County District Court, arguing that the trial court erred by failing to suppress exculpatory statements made while in custody and by failing to suppress letters written while incarcerated.  Appellant further contends that under the United State Supreme Court ruling of Apprendi, the additional findings necessary for an upward durational departure under the Minnesota dangerous offender statute must be made by a jury, and that the district court erred in including previous out-of-state juvenile convictions in his criminal-history score.  We affirm in part, reverse in part, and remand for resentencing. 



             On February 4, 2001, appellant, along with three others, entered the residence of Angela Dahlke and Nicholas Krienke.  Wearing masks and hooded, dark-colored sweatshirts, appellant and his accomplices ordered Dahlke and her friend Crystal Pool to the floor and demanded money.  Following a scuffle in which appellant assaulted Dahlke by punching her in the face, appellant took approximately $800 in cash and left the scene in a red car.

             A police officer, responding to the robbery call, noticed a red car similar to the type used in the robbery. The officer pulled the car over and noticed two hooded jackets in the back seat of the car.  The police then brought the victims to the scene where appellant had been apprehended.  The victims identified the car and at least one of the occupants.  Appellant was then arrested and taken to the Hutchinson Police Department.

            Appellant was interviewed at the Hutchinson Police Department.  After being read his rights, appellant stated that he "ain't got nothing to talk about" and then made several inculpatory statements to the officers.

            At trial, the state entered into evidence, over appellant's objection, appellant's statements made during the interview with police and multiple letters appellant wrote from jail.  In those letters, appellant attempted to persuade his then-girlfriend, Mandi Wiler, to contact his attorney and change the statement she had previously made to police.

            The jury found appellant guilty of first-degree aggravated robbery.  On September 21, 2001, appellant was sentenced to 176 months, an upward durational departure under the repeat and dangerous offender statute.  This appeal followed.



I.                   Suppression of Statements

            Appellant claims that the district court erred in determining that he did not invoke his right to silence.  The district court held that as appellant "did not tell the officers that he did not wish to talk to them, nor did he tell that he wished to remain silent or that he wanted the conversation or questioning to end," appellant's statements were not sufficiently unambiguous to invoke his right to counsel.  We agree.

            The custodial interview between appellant and police officers began as follows:

Hammond-Johnson [H-J]:    Having these rights in mind do you wish to talk to me now?


Appellant:       I ain't got nothing to talk about, I mean, I was with my girlfriend all day and she was to my house cause (inaudible) and you can talk to my next door neighbor Willy.


H-J:     Okay.  Like we said before, you're gonna set the tone as far as the interview whether you wanna answer questions or not answer questions.  But before we proceed I do need you to answer that question.  Having these rights in mid, do you wish to talk to me now?  It's a yes or no question.


Appellant:       There nothing to be talk about, like I said, I mean…


H-J:     And if you weren’t there we can talk about that too, but what I need to know is if you're willing to discuss that with me.


Appellant:       Yeah, I'm willing to let you know that I wasn't there and my girlfriend (Mattie Mae???) while I was there and where she was at my house and you can talk to her and you can talk to my neighbor Willy.


H-J:     Okay.  Mostly I want to talk to you.  Okay.


Appellant:       Huh?


H-J      Mostly I want to talk to you right now.  Okay.


Appellant:       You mean, for what, I ain't got nothing to talk about.


            Once a Miranda warning has been given to a custodial suspect and that suspect asserts the right to remain silent, the interrogation must cease.  State v. Thieman, 439 N.W.2d 1, 5 (Minn. 1989).  Investigators fail to honor a suspect's right to silence,


[e]ither by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.


Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 327 (1975).

            To assert the right to silence, however, "nothing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient * * * ."  State v. Williams, 535 N.W.2d 277, 285 (Minn. 1995).  In considering whether a suspect has unequivocally and unambiguously invoked his right to silence, the supreme court held in State v. Day that the appropriate test is

whether the suspect articulated his desire to remain silent sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent.


State v. Day, 619 N.W.2d 745, 749 (Minn. 2000).

            Here, appellant's statement that he "ain't got nothing to talk about" was not an unambiguous or unequivocal assertion of his right to remain silent.  As in Williams, appellant "never exhibited a general refusal to answer any of the questions the detectives wanted to ask."  Williams, 535 N.W.2d at 284.  While appellant argues that his final, "ain't got nothing to talk about" was unambiguous, his multiple previous statements that he did not have anything to speak about with the officers, followed by denial of involvement would not lead a reasonable officer to conclude that this particular statement was an unambiguous invocation of the right to silence.

II.        Letters Written While Incarcerated

            Appellant next challenges the trial court's admission into evidence of the contents of letters discovered by McLeod county jail officials without probable cause or a warrant. Appellant argues that as he was not formally notified of the jail's policy, he had a reasonable expectation of privacy in the letters he sent from jail.  Because appellant had actual knowledge that letters written while he was incarcerated would be read by jail officials, we affirm on this issue.

            Inmates in Minnesota jails and prisons, including those in jail awaiting trial, retain those constitutional rights that are not inconsistent with their status as prisoners and that do not interfere with legitimate concerns for security and safety within the institution or * * * .


State v. Cuypers, 481 N.W. 2d 553, 556 (Minn. 1992).  Generally, an unlawful search or seizure under the Fourth Amendment to the United States Constitution occurs when an individual's reasonable expectation of privacy is invaded.  Katz v. United States, 389 U.S. 347, 353, 88 St. Ct. 507, 512 (1967).  An individual's expectation of privacy, however, is necessarily restricted when the individual asserting that expectation is incarcerated.  Cuypers, 481 N.W.2d at 557. (citation omitted).

            Here, appellant does not challenge the trial court's finding that the mail policy at the McLeod county jail is constitutionally valid; rather, appellant argues that because the state failed to prove that he was informed of the mail policy, he had a legitimate expectation of privacy in his outgoing mail from the jail.  Respondent counters that while appellant may not have been individually informed of the jail's outgoing mail policy, he did have actual knowledge that his mail would be read and did not have a reasonable expectation of privacy in such mail.  We agree.

            Appellant had actual knowledge that his outgoing mail from the jail would be unsealed and read.  This knowledge is evidenced in the contents of a letter written to his ex-girlfriend, from jail, at an unknown date.[1]  In this letter, appellant states, "And Chad is the reason we are all in here because he is trying to say that we did the whoopty jam don't talk about it in you[r] letters because they do read them."  Appellant does not deny the letter.

III.       Due-Process Rights Under Apprendi

            Appellant claims that under the Untied States Supreme Court decision of Apprendi v. New Jersey 530 U.S. 466, 120 S. Ct. 2348 (2000), the additional findings necessary for an upward durational departure under the Minnesota dangerous-offender statute must be made by a jury.  We understand Apprendi, but on these facts, we disagree with appellant.

            The trial court sentenced appellant to an upward durational departure as a repeat and dangerous offender under Minn. Stat.§ 609.1095, subd. 2 (2000), which states in pertinent part:

Subd. 2.  Increased sentences for dangerous offender who commits a third violent crime.  Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:

(1)   the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and

(2)   the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

(i)                the offender's past criminal behavior, such as the offender's high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or

(ii)             the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.


Minn. Stat. § 609.1095, subd. 2.

            The trial court found that the factual circumstances of the crime, as well as appellant's two previous convictions, one for aggravated robbery and one for aiding and abetting simple robbery, met the above factors necessary for a departure under the dangerous-offender statute.

            Minnesota statutes are presumed constitutional, and this court's "power to declare a statute unconstitutional should be exercised with extreme caution and only when
absolutely necessary."  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citation omitted).  In questions involving the constitutionality of a statute, the challenger to that statute "bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional."  State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997) (quotation omitted).

            Appellant argues that the United States Supreme Court ruling in Apprendi should be extended to sentences that increase an offender's incarceration period, even if that period is not above the statutory maximum.  Minnesota has not yet so extended Apprendi.

            In Apprendi, the Supreme Court declared a New Jersey hate-crime statute unconstitutional because it did not submit the question of whether the defendant's crime was motivated by hate to a jury.  Apprendi, 530 U.S. at 491, 120 S. Ct. at 236.  The court stated:

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  The Fourteenth Amendment commands the same answer in this case involving a state statute.


Id. at 476.

            While appellant cites numerous cases from other jurisdictions to support his proposition, we find the Minnesota Supreme Court case of State v. Grossman and this court's ruling in State v. McCoy instructional.  State v. Grossman, 636 N.W.2d 545 (Minn. 2001); State v. McCoy, 631 N.W.2d 446 (Minn. App. 2001).  In Grossman, the supreme court examined Minn. Stat. § 609.108, subd. 2 (2000), which allowed a court to impose a sentence of up to 40 years, "notwithstanding the statutory maximum imprisonment penalty otherwise provided for the offense."  Grossman, 636 N.W.2d at 549 (quotation omitted).  There, the supreme court held that, as the statutory maximum could be extended, the statute was unconstitutional under the rule enunciated in Apprendi.  Id. at 551.  Following the supreme court's decision in Grossman, this court in State v. McCoy held that "[a]lthough we understand appellant's argument, we agree with the state that Apprendi and Grossman apply only to situations where a court sentences a defendant to a term that exceeds the statutory maximum."  McCoy, 631 N.W.2d at 451.

            Minn. Stat. § 609.1095 only allows the trial judge to impose "an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence * * * ."  (Emphasis added).  The statute is consistent with the Apprendi rule.

IV.       Criminal-History Score

            Appellant claims the trial court abused its discretion in including three previous juvenile offenses in his criminal-history score.  Appellant specifically claims that because his previous juvenile offenses occurred in Wisconsin, the state was required to prove that the convictions met the established criteria of the sentencing guidelines.  We agree with appellant.

            Generally, the state has the burden of proof to establish the facts necessary to consider out-of-state juvenile adjudications in determining a defendant's criminal-history score.  State v. Marquetti, 322 N.W.2d 316, 318-19 (Minn. 1982).  The Minnesota Sentencing Guidelines provide:

The offender is assigned one point for every two offenses committed and prosecuted as a juvenile that are felonies under Minnesota law, provided that:

a.       Findings were made by the juvenile court pursuant to an admission in court or after the trial;

b.      Each offense represented a separate behavioral incident or involved separate victims in a single behavioral incident;

c.      The juvenile offenses occurred after the offender's fourteenth birthday; * * *


Minn. Sent. Guidelines II.B.4.  The comment to this guideline states:

First, only juvenile offenses that are felonies under Minnesota law will be considered in computing the criminal history score.  Status offenses, dependency and neglect proceedings, and misdemeanor or gross misdemeanor-type offenses will be excluded from consideration.


Minn. Sent. Guidelines cmt. II. B.402.

            Here, we find that the district court erred in including appellant's previous juvenile offenses as a criminal-history point for sentencing purposes.  The record is unclear, and we find no discussion, other than appellant's objection, regarding this criminal history point.  Therefore, the state did not meet its burden of proving that appellant's prior juvenile convictions were felony-level offenses, warranting a criminal-history point.

            Respondent concedes that it is unclear whether appellant's prior juvenile offenses were felony convictions.  However, respondent claims that the error, if any, is harmless because the trial court did not rely on the juvenile criminal-history point when it sentenced appellant under the repeat-and-dangerous-offender statute.  We disagree.

            While it is true that the district court did not specifically mention appellant's criminal-history score during sentencing, the court did doubly depart upward using an improperly calculated presumptive sentence of 88 months, giving appellant a 176-month sentence.  Therefore, were appellant's criminal-history score calculated properly, the district court would have departed upward from a correct presumptive sentence of 78 months (74 to 82-month presumptive range with a criminal-history score of three), giving appellant approximately 156 months.  We cannot find that a difference in sentencing of 20 months because of an improperly calculated criminal-history score is harmless error.  The case is remanded for resentencing using a corrected criminal-history score. 

            Affirmed in part, reversed in part, and remanded.     

[1]  Other than the two letters at issue in this appeal, the trial court admitted numerous letters into evidence.  These letters were voluntarily surrendered to law-enforcement authorities by appellant's ex-girlfriend.  Appellant does not challenge the admission of these letters on appeal.