This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Victoria Ann Zell,
Filed July 25, 2006
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)
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
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
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.
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
D E C I
S I O N
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.
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,
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
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 Blakely.
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
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)).
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,
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
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.”