This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Kong Mang Yang,
Sherburne County District Court
File No. K104640
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
Appellant challenges his sentence for conviction of two counts of second-degree assault, arguing that at the time of his trial, the district court did not have authority to submit sentencing interrogatories to the jury in order to impose an enhanced sentence under Minn. Stat. § 609.11, subd. 4 (2004). Appellant also argues that the jury’s findings were insufficient to justify imposition of the statutory mandatory minimum sentence. Because the supreme court has recently held that the district court had the inherent authority to allow a jury to make factual findings on aggravating sentencing factors before the legislature provided for sentencing juries, and because the jury’s findings in this case were sufficient to support the sentence imposed, we affirm.
I. Submission of sentencing enhancement factors to the jury
The state first argues that because
appellant Kong MangYang failed to object to the use of sentencing
interrogatories, he has waived his right to appeal this issue. We disagree.
A defendant’s right to appeal an illegal sentence cannot be waived. Ballweber
v. State, 457 N.W.2d 215, 218 (
Yang was charged with two counts of
second-degree assault in connection with an incident that occurred while he was
incarcerated at the Minnesota Correctional Facility–Saint Cloud. At the time of Yang’s trial in June 2005,
Minn. Stat. § 609.11, subd. 4 (2004), provided, in relevant part, that a
defendant who had a prior conviction for assault with a dangerous weapon and
was convicted of a subsequent second-degree assault with a dangerous weapon,
“shall be committed to the commissioner of corrections for not less than three
years nor more than the maximum sentence provided by law.” The statute also provided, in relevant part,
that the question of whether the defendant used a dangerous weapon “shall be
determined by the court . . . at the time of a verdict
. . . .”
Blakely v. Washington, however,
enhanced sentencing based on judicial findings of fact constitutes a violation
of a defendant’s Sixth Amendment rights.
The jury found Yang guilty of second-degree assault on both counts and answered both special interrogatories “yes.” The district court subsequently imposed concurrent sentences of 36 months under Minn. Stat. § 609.11, subd. 4, to run consecutively to the sentence for which Yang was incarcerated at the time of the assaults.
In November 2005, after Yang was
sentenced, the Minnesota Supreme Court held that “section 609.11 is
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.” State
v. Barker, 705 N.W.2d 768, 773 (
In determining the appropriate
remedy in Barker, the supreme court
stated that “engraft[ing] sentencing-jury or bifurcated-trial requirements onto
. . . sentencing statutes would require rewriting them, something our
severance jurisprudence does not permit.”
Yang argues he is entitled to the
presumptive guidelines sentence because in Barker,
the supreme court “rejected the notion that [district] courts can use their
inherent power to submit [sentencing enhancement issues under section 609.11]
to a jury because this would require rewriting the statute and be directly
contrary to clear legislative intent.” More
recently, however, the supreme court held that a district court has inherent
authority to impanel a jury on sentencing factors. State
v. Chauvin, 723 N.W.2d 20, 27 (
Chauvin, like Yang, was tried after Blakely was issued but prior to any
statutory amendments designed to accommodate a defendant’s Sixth Amendment
rights as announced in Blakely and
carry out the legislative policy to enhance sentences in some cases.
Without a constitutional mechanism for imposing an upward sentencing departure and without legislative guidance on how to proceed, impaneling a sentencing jury was necessary (1) to carry out the legislative sentencing scheme . . . and (2) to vindicate Chauvin’s Sixth Amendment right to a jury determination of aggravating sentencing factors . . . .
In Yang’s case, the district court
did not separately impanel a sentencing jury, but instructed the jury to answer
the questions about the sentencing factors only in the event that it determined
guilt on the charges of second-degree assault.
We have previously sanctioned the use of special interrogatories
concerning sentencing. State v. Schmitz, 559 N.W.2d 701, 706 (
Yang’s reliance on the remedy
imposed in Barker is misplaced
because Barker involved the issue of
whether the district court had inherent authority to impanel a resentencing
jury. 705 N.W.2d at 775-76. In Barker,
the supreme court interpreted the legislature’s failure to provide for
sentencing juries for resentencing to “indicate a legislative intent that
sentencing juries not be available to implement this mandatory minimum sentence
in a resentencing hearing on remand . . . .” Chauvin,
723 N.W.2d at 28. But distinguishing Barker in Chauvin, the supreme court noted that the state in Barker was asking the supreme court “to
recognize the district court’s inherent judicial authority to impanel a
sentencing jury on remand of an unconstitutional sentence, and [the supreme
court] made the policy decision to not recognize that authority after
. . . the legislature had already omitted [section 609.11] from the
authorization to use sentencing juries on resentencing.”
II. Sufficiency of the jury’s findings to support imposition of mandatory minimum sentence under Minn. Stat. § 609.11, subd. 4
Yang’s argument concerning sufficiency of the jury’s finding to support imposition of the mandatory minimum sentence under Minn. Stat. § 609.11 is based on the wording of the jury instruction on this issue. The statute defines the offenses in which the mandatory minimum is to be imposed with reference to “an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon . . . .” Minn. Stat. § 609.11, subd. 4. The question submitted to the jury was: “At the time of the crime, did defendant possess or use, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon?” Yang argues that because the interrogatory was not limited to “use” of a dangerous weapon, the finding is insufficient to trigger sentencing under the statute. We disagree.
Because Yang did not object to the
wording of the special interrogatories at trial, this court reviews his
challenge under the three-prong test for plain error. State
v. Griller, 583 N.W.2d 736, 740 (
Generally, district courts are
afforded broad discretion in choosing the language of jury instructions. Hilligoss
v. Cargill, Inc., 649 N.W.2d 142, 147 (
In this case, the words “use or possess” were specifically defined in the interrogatory to require that the weapon be somehow “employed” at the time of the commission of the crime. Therefore, inclusion of “possess” did not materially misstate the law and was not erroneous. Additionally, we conclude that even if the wording of the special interrogatory could be considered erroneous, Yang has failed to meet his burden to show that the wording affected his substantial rights, the third prong of the test for plain error. See Griller, 583 N.W.2d at 740. For the interrogatory to have affected Yang’s substantial rights, the record would have to have contained evidence to support a jury determination that Yang possessed the shank without employing it in some manner in commission of the crime. Based on the eyewitness testimony concerning the assault, the record would not support such a determination. Yang has failed to establish that the wording of the special interrogatory constituted plain error.
In 2006, the legislature amended Minn. Stat. §
609.11, subd. 7, to provide that whether a dangerous weapon was used at the
time of commission of a relevant offense “shall be determined by the factfinder
at the time of a verdict . . .” and “[t]he factfinder shall also
determine whether the defendant has been convicted of a second or subsequent
offense in which the defendant . . . used a . . .
dangerous weapon . . .” 2006
Minn. Laws ch. 260, §13, at 717-18. The
amendments apply to crimes committed on or after August 1, 2006.
 In Chauvin,
the state initially sought to enhance Chauvin’s sentence under the “career
offender” statute, section 609.1095, subd. 4, and under