This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Victoria Ann Zell,



Filed July 25, 2006


Willis, Judge


Hennepin County District Court

File No. 04055792


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Earl P. Gray, Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from her sentence for a conviction of criminal vehicular homicide, appellant argues that the district court erred by sentencing her to an upward durational departure, asserting that the district court did not have the inherent authority to order a bifurcated sentencing procedure, that the departure was not supported by aggravating factors, and that the sentence imposed was unreasonable and excessive.  We affirm.


On July 18, 2004, appellant Victoria Zell, Amity Dimock, and Joshua Schmidt were in Zell’s vehicle when it struck a pick-up truck in a residential area of Minneapolis.  Reconstruction of the accident showed that Zell’s vehicle was traveling between 59 and 71 miles per hour at the time of the accident.  Schmidt died in the crash, and Dimock sustained extensive injuries, including a spinal-cord injury that may result in permanent paralysis. 

            Dimock testified that on the morning of the accident, she and Zell were driving to a home-improvement store when they decided to stop at a bar, where Zell commenced drinking.  Schmidt later joined Zell and Dimock at the bar.  Dimock further testified that the three then left the bar together in Zell’s vehicle, planning to go to Zell’s house.  Dimock stated that Schmidt was driving when they left the bar and that Zell asked him to perform various illegal driving maneuvers, such as running a red light and driving in the wrong lane.  On the way to Zell’s house, Schmidt stopped at a gas station.  Dimock testified that when Schmidt went inside the store to buy a snack, Zell moved into the driver’s seat and said that she was going to “mess” with Schmidt.  Dimock stated that as Zell drove out of the parking lot, Zell said that “this is how you drive crazy” and that Zell then jumped the curb and drove on the grass between the two lanes on Minnehaha Parkway.  Dimock testified that Zell then started driving very fast and running stop signs.

            A post-accident analysis of Zell’s blood was performed and showed an alcohol concentration of .125; the Bureau of Criminal Apprehension analyst who tested the blood sample testified that Zell’s alcohol concentration would have been .164 an hour after the accident and that, at the time of the accident, there was no possibility that Zell’s alcohol concentration was below the .10 legal limit of intoxication.  The analysis also showed that there were cocaine metabolites in her blood, along with evidence of methamphetamine usage.

            Zell was charged with four counts of criminal vehicular homicide, in violation of Minn. Stat. § 609.21, subd. 1(1), (3), (6), (7) (2002), and four counts of criminal vehicular operation, in violation of Minn. Stat. § 609.21, subd. 2(1), (3), (6), (7) (2002).  At trial, Zell argued that Schmidt had been the driver when the accident occurred.  A jury found Zell guilty of all eight counts. 

            Before trial, the state served and filed a notice of intent to seek an upward durational departure because of aggravating factors.  The district court deferred until the end of trial the question of how to present the aggravating factors to the jury.  Following the guilty verdict, the state asked the district court to submit questions on the aggravating factors to the jury on a special-verdict form.  The questions were: (1) “Did [Zell] place people at risk other than Joshua Schmidt and Amity Dimock?”; (2) “Did [Zell] blame others for the crash?”; and (3) “Did [Zell] knowingly fail to provide assistance to the victims?”  Zell objected, asserting that there was no statute or rule authorizing the procedure and that “without guidance from the Supreme Court or our state legislature, [Zell] is being singled out and her right to equal protection of the law and due process is violated.”  The district court determined that the aggravating-factor questions could be submitted to the jury and instructed the jury that they had three additional questions to answer and that to answer any of the questions “yes,” they must unanimously agree beyond a reasonable doubt.  Both attorneys were then given the opportunity to make arguments.   The jury found that the first two factors existed beyond a reasonable doubt but that the third did not. 

The district court sentenced Zell to 84 months in prison, a 36-month upward durational departure from the presumptive sentence for Zell’s conviction of criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(3) (causing death while operating a vehicle while having an alcohol concentration of .10 or more).  The district court merged Zell’s other three criminal-vehicular-homicide convictions under Minn. Stat. § 609.035, subd. 1 (2002), which precludes multiple sentencing for conduct that is part of a single behavioral incident.  The district court also sentenced Zell  to a concurrent 28 months in prison for one of her convictions of criminal vehicular operation, a dispositional departure based on Zell’s request that it be executed.  The district court merged the other three criminal-vehicular-operation convictions under Minn. Stat. § 609.035, subd. 1.  Zell appeals her criminal-vehicular-homicide sentence.



            Although Zell acknowledges that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), mandates a jury determination of sentence-enhancing factors in order to depart from the presumptive guidelines sentence, Zell argues that the district court had no authority to bifurcate the trial and submit aggravating factors to the jury.  She asserts that the district court’s procedure violated her constitutional rights.  Questions of constitutional interpretation are issues of law, which we review de novo.  Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004).


            It is undisputed that the district court had no statutory authority to bifurcate the procedure and submit aggravating factors to the jury.  Since June 3, 2005, Minnesota has had a statutory provision authorizing the use of sentencing juries.  2005 Minn. Laws ch. 136, art. 16, §§ 3-6 (codified at Minn. Stat. § 244.10, subds. 4-7 (Supp. 2005)).  But because Zell’s sentencing departure preceded the legislative enactment, the statute does not apply here.  Thus, the issue is whether the district court had the inherent authority to bifurcate Zell’s trial and submit aggravating factors to the jury.

In State v. Shattuck, 704 N.W.2d 131, 147 (Minn. 2005), the supreme court considered “whether [it] has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process” to remedy Blakely violations.  The supreme court recognized that, although it has the inherent authority to regulate court procedure to apply the requirements of Blakely to sentencing in Minnesota, it does not have the authority to engraft sentencing-jury or bifurcated-trial requirements onto the Minnesota Sentencing Guidelines because “[i]t is the legislature that created the Sentencing Guidelines system and retains authority over its development.”  Id. at 147-48.  Although the supreme court declined to exercise its authority to establish procedures to apply the requirements of Blakely, in Shattuck it did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.”  Id. at 148 n.17.  We interpret Shattuck to mean that although the supreme court determined that it did not have the authority to engraft a sentencing-jury procedure onto the sentencing guidelines, it did not restrict a district court’s inherent authority to craft sentencing procedures that comply with Blakely in individual cases.  We note the legislature’s decision to have the recently enacted sentencing-procedure statutes expire on February 1, 2007.  See 2005 Minn. Laws ch. 136, art. 16 § 3-6 (codified at Minn. Stat. § 244.10, subds. 4-7).  We conclude that the short duration of the law shows that while the legislature intended to provide interim guidance to the courts regarding Blakely compliance, it did not intend to claim exclusive authority over sentencing procedures. 

We conclude that by using the bifurcated-trial procedure to submit aggravating factors to the jury, the district court did not infringe on legislative authority.  Instead, the district court (1) exercised its judicial discretion in this specific case by imposing a sentence that, although an upward durational departure, was within the limits prescribed by the legislature and (2) used its inherent authority to regulate trial procedure to comply with the constitutional mandate of BlakelySee State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982) (determining that the imposition of a sentence “within the limits prescribed by the legislature is purely a judicial function”).  In fact, the district court followed an established judicial procedure in exercising its authority.  Special interrogatories may be used if they relate solely to sentencing and “do[] not tend to lead a jury to a finding of guilt.”  State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997); see also State v. Robinson, 480 N.W.2d 644, 646 (Minn. 1992) (providing that special interrogatories may be allowed as long as the jury is instructed that it must apply the beyond-a-reasonable-doubt standard). 

            Although Zell did not cite State v. Barker, 705 N.W.2d 768 (Minn. 2005), we note the case to distinguish it.  In Barker, the supreme court held that the mandatory-minimum sentencing provided by Minn. Stat. § 609.11 for possession of a firearm while committing certain offenses was “unconstitutional to the extent that it authorizes the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.”  705 N.W.2d at 773.  The state argued that the supreme court should remand the case to the district court for resentencing and direct the district court to impanel a jury to determine whether the sentencing factors existed.  Id. at 775.  The supreme court disagreed and remanded for imposition of the presumptive sentence, concluding that it had no authority to direct the district court to impanel a sentencing jury because the legislature had provided in section 609.11 that the court should determine the factors and the statute had not been amended.  Id. at 776.  But if the Barker court had directed the district court to impanel a jury to determine the factors in the face of legislation that directed the court to determine the factors, the supreme court would have altered legislation, something that the Shattuck court recognized that the judiciary is not authorized to do.  Shattuck, 704 N.W.2d at 146-47.  Here, there is no legislation that requires the district court to determine aggravating factors in order to depart from the presumptive sentence for criminal vehicular homicide.

We recognize that within this court, there are differing views on the issue of whether a district court has the inherent authority to impanel a sentencing jury.  Compare State v. Hobbs, 713 N.W.2d 884, 889-90 (Minn. App. 2006) (holding that the district court did not have statutory or inherent authority to submit to a jury the issue of dangerousness to public safety under Minn. Stat. § 609.1095, subd. 2 (2002)), pet. for review filed (Minn. June 12, 2006) and State v. Maddox, No. A05-339, 2006 WL 1460441, at *5-*6 (Minn. App. May 30, 2006) (concluding that the district court did not have the inherent authority to submit to a jury the issue of whether the appellant’s current offense was a part of a pattern of criminal conduct) with State v. Lushenko, 714 N.W.2d 729, 736-37 (Minn. App. 2006) (distinguishing Barker and concluding that Shattuck supports a conclusion that a district court has inherent authority and discretion to craft a bifurcated-trial procedure), review granted (Minn. July 19, 2006).  We conclude that, under Shattuck, the district court here had the inherent authority to impanel a sentencing jury to determine whether any aggravating factors existed to support an upward durational departure from the presumptive sentence.


Zell also argues that aggravating factors cannot support an upward durational departure because none was pleaded in the complaint.  In support of her argument, she notes that the Supreme Court in Blakely recognized the longstanding tenet of common-law jurisprudence that “an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason.”  530 U.S. at 301-02, 124 S. Ct. at 2536 (quotation omitted); see also Apprendi v. New Jersey, 530 U.S. 466, 478, 120 S. Ct. 2348, 2356 (2000) (providing that “during the years surrounding our Nation’s founding,” criminal proceedings were generally submitted to a jury after “being initiated by an indictment containing ‘all the facts and circumstances which constitute the offense, . . . stated with such certainty and precision . . . that there may be no doubt as to the judgment which should be given, if the defendant be convicted” (quotation omitted)).

Due process requires that complaints provide notice to defendants of the charges on which they will be tried.  See McCollum v. State, 640 N.W.2d 610, 618 (Minn. 2002) (noting that due process requires that a defendant receive a charging document that “fairly apprise[s] the defendant of the charge brought against him” to enable him to prepare a defense) (quotation omitted)).  But the Minnesota Supreme Court has not recognized a right to have possible sentencing factors listed in a charging document.  Id. (rejecting argument that first-degree murder indictment needed to include reference to heinous-crimes statute); see also Almendarez-Torres v. U.S., 523 U.S. 224, 228, 118 S. Ct. 1219, 1223 (1998) (providing that an indictment must set forth the elements of a charged offense but “it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime”).


             Zell asserts that an ex post facto violation occurred when “the State, with the District Court’s support and concurrence, formulated an offense that did not exist at the time of [Zell’s] conduct on July 18, 2005.”  Zell maintains that the “formulated” offense consists of the elements of criminal vehicular homicide and the facts that the state sought to prove to support an upward durational departure.  Both the United States and Minnesota constitutions prohibit the enactment of ex post facto laws, which render “an act punishable in a manner in which it was not punishable when it was committed.”  Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955).  An ex post facto law applies to events occurring before its enactment and disadvantages the offender.  Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981). 

            As a threshold matter, the state argues that Zell did not raise the ex post facto issue in the district court and that, thus, this issue is not properly before this court.  After a review of the record, we agree.  In any event, we conclude that there was no ex post facto violation.  The statute defining criminal vehicular homicide clearly provides that the penalty for the crime is up to ten years in prison.  Minn. Stat. § 609.21, subd. 1 (2002).  Thus, Zell had notice of the possibility that her sentence could be greater than the presumptive sentence of 48 months.

             Zell further asserts that the district court’s “ad hoc” procedure for submitting the aggravating factors to the jury violated the Due Process and Equal Protection Clauses.  Zell’s first argument is that her constitutional right to due process was violated because she had insufficient notice of the procedure to be used to submit the aggravating factors to the jury.  The purpose of affording a criminal defendant notice is to provide the defendant with an opportunity to prepare her defense and to prevent unfair surprise.  See State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995) (determining that the purpose of giving notice of intent to introduce Spreigl evidence is to allow defendant to prepare for trial and to prevent unfair surprise); State v. Clark, 270 Minn. 538, 551-52, 134 N.W.2d 857, 866-67 (1965) (determining that the “essential function” of an indictment is to inform a defendant of the charge for which she is held so that she may formulate a defense).  The record shows that, before trial, the state provided notice of its intent to seek an upward durational departure based on aggravating factors and that early in the trial, the state made a request to submit the aggravating factors to the jury, either as part of its case in chief or in a bifurcated proceeding.  Zell’s counsel stated that he wanted the departure issue bifurcated, and the district court agreed to do so.  We conclude that there was not a due-process violation because there is no indication in the record that Zell was unfairly surprised or unable to prepare for the bifurcated proceeding; although Zell could have moved for a continuance before the sentencing portion of the trial if she needed more time to prepare, she did not do so.  

            Zell next argues that her constitutional right to equal protection was violated because if district courts are allowed to create “ad hoc” procedures for the jury to find aggravating factors, the procedure and process that defendants receive will be up to individual judges.  And Zell further asserts that an even more unacceptable violation is the result of the fact that while some judges are deciding that aggravating factors may be submitted to a jury, others are deciding that such factors may not be submitted to a jury without an authorized procedure.  But because a difference in treatment at sentencing does not constitute a denial of equal protection of law, we conclude that Zell’s right to equal protection was not violated.  See State v. Gamelgard, 177 N.W.2d 404, 407-08 (Minn. 1970) (concluding that the fact that “two different judges chose to exercise [sentencing] discretion in two widely different ways is not in and of itself a denial of equal protection” and that “defendant must point to more than the difference in sentence treatment before he can establish a denial of equal protection”).


            Zell argues that there were no substantial and compelling circumstances to support the upward durational departure because “the State’s asserted grounds for a departure do not show that the offense was committed in a way that made it more serious than the way the offense of criminal vehicular operation is typically committed.”  Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  The issue in determining the propriety of durational departures is whether an appellant’s conduct was “significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Anderson, 356 N.W.2d 453, 455 (Minn. App. 1984) (quotation omitted).

The jury found that Zell’s driving conduct put people other than her passengers at risk.  Zell argues that this was not a proper factor on which to base an upward departure because “it is typically part of the offense behavior common to criminal vehicular operation.”  Zell cites State v. Thao, 649 N.W.2d 414 (Minn. 2002),in support of this proposition.  In Thao, the supreme court determined that an upward departure based on the indiscriminate firing of multiple shots into a groupwas an abuse of discretion because Thao’s conduct was “not so different” from the statutory description of a drive-by shooting and the supreme court could not conclude that the conduct was significantly more serious than a typical drive-by shooting.  649 N.W.2d at 423-24.  But this court has concluded that endangering persons other than the defendant’s passengers supports an upward departure from the presumptive sentence for criminal vehicular operation.  See State v. Anderson, 361 N.W.2d 896, 899 (Minn. App. 1985) (determining that upward durational departure was justified when defendant, who “in his intoxicated condition represented a danger to the safety of all he encountered,” drove on a busy highway at an excessive rate of speed and went through a red light); State v. Loitz, 366 N.W.2d 744, 746-47 (Minn. App. 1985) (affirming upward durational departure when intoxicated defendant erratically drove his car on “one of the busiest streets in the City of Anoka at a time that is one of the busiest time periods”), review denied (Minn. July 17, 1985).

Zell further asserts that the second ground for departure, the fact that she blamed Schmidt for the crash, was not proper because “it was entirely permissible for Ms. Zell’s counsel to argue as a theory of defense that someone else was the driver.”  But the Minnesota Supreme Court concluded in State v. Chaklos that a defendant’s attempt to place blame on an innocent party was a factor justifying a dispositional departure.  528 N.W.2d 225, 228 (Minn. 1995); see also State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998) (concluding that the district court did not abuse its discretion by departing upwardly from the presumptive sentence when, among other things, defendant convicted of second-degree intentional murder and second-degree felony murder persistently attempted to deny responsibility and shift blame to others); State v. Elkins, 346 N.W.2d 116, 119-20 (Minn. 1984) (determining in appeal from second-degree assault conviction that aggravating circumstances, including defendant’s participation in blaming an innocent party, justified upward durational departure).

Zell also argues that the upward departure of 36 months resulted in an “unreasonable and excessive” sentence.  But in Anderson, a case with facts strikingly similar to those here, this court affirmed a double upward durational departure when the defendant, who had an alcohol concentration of 0.15, ran a red light at nearly 60 miles per hour, colliding with and crushing a car driven by another person.  361 N.W.2d at 897, 899.  The driver of the second car was killed, and his passenger was severely injured.  Id. at 897.  After the accident, the defendant “tried to get his passenger to lie and say that [the defendant] was the passenger and, in fact, [the defendant] told an officer on the scene that he was not the driver.”  Id.  This court determined that it had “no hesitation” in concluding that the defendant’s conduct justified a double departure.  Id. at 899.  Thus, we determine that the upward departure imposed here was not “unreasonable and excessive.”


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.