This opinion will be unpublished and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,
Casey Roland Jones,
Filed December 5, 2006
in part, reversed in part, and remanded
Sherburne County District Court
File No. KX-04-636
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen Heaney, Sherburne County Attorney, Sean C. Dillon, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
John M. Stuart, State Public Defender, Tony G. Atwal, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Worke, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.
Disputing his felony theft sentence, appellant argues that the district court’s upward departure must be reversed and the presumptive sentence imposed because the career-offender statute on which it was based is facially unconstitutional. Although we reverse the sentence, we remand in a fashion dictated by the Minnesota Supreme Court decision in State v. Chauvin, concluding that the district court has the inherent authority to craft a sentencing procedure in conformance with Blakely v. Washington, 542 U.S. 2296, 124 S. Ct. 2531 (2004). We affirm in part on appellant’s contention that his theft was part of a behavioral incident that prompted his conviction and sentence in another county for receiving stolen property.
After being suspected of
stealing several computers from an Elk River Wal-Mart, appellant Casey Jones
was charged with theft in Sherburne County.
An investigator from the Mille Lacs County Sheriff’s Department informed
Elk River police that appellant had pawned twelve computers at two different
pawn shops in Mille Lacs County, and that several of the computers had Wal-Mart
tags still attached. Appellant was
when appellant appeared for sentencing on his
There is merit in appellant’s proposition, not challenged by the state, that he did not properly waive his rights to a lawful factual determination on his career-offender status. See State v. Zulu, 706 N.W.2d 919, 926 (Minn. App. 2005) (holding that when a defendant is agreeing to a court determination of aggravating factors of a sentence enhancement, in order for a waiver of a jury trial to be knowing, voluntary, and intelligent “the defendant must specifically waive the right to testify, to have the witnesses testify in open court in the defendant’s presence, to cross-examine the witnesses, and to require any favorable witnesses to testify . . . .”).
Appellant asserts that the district court’s sentence, if his theft conviction is upheld, must be reduced to a presumptive guideline term because Minn. Stat. § 609.1095, subd. 4 (2004) is unconstitutional after Blakely. The career offender statute is unconstitutional as applied to appellant, but we remand for sentencing consistent with State v. Chauvin, 723 N.W.2d 20 (Minn. 2006).
examining the constitutionality of the statute, in State v. Adkins, this court held that Minn. Stat. § 609.1095, subd.
4, is unconstitutional to the extent that it authorizes a judicial finding that
a pattern of criminal conduct exists and therefore the statute is
“unconstitutional as applied to appellant’s sentence.” 706 N.W.2d 59, 64 (
to appellant’s assertion that his sentence must be reduced to the presumptive
sentence, we look to the recent supreme court decision in Chauvin. The Chauvin court recognized inherent judicial
authority to impanel a sentencing jury to make factual findings on aggravating
sentencing factors, where the court, before the legislature had occasion to
provide for an alternate process, could not otherwise effectuate the
legislative policy to depart from the presumptive sentence in appropriate
supreme court noted that Chauvin was sentenced after Blakely was decided, but before the legislative changes, and he was
given a jury trial on the aggravating factor.
Since appellant’s sentencing occurred after Blakely and prior to the legislative changes, and because appellant waived a sentencing jury, we follow the rationale in Chauvin and agree with the state’s position that the district court’s exercise of its inherent authority to empanel a jury on sentencing was not precluded by Shattuck II or Barker or by reasons of comity to the legislature. Thus we reverse and remand for the district court’s determination of whether to impose the presumptive sentence or to conduct proceedings, conforming with Blakely, on the question of an upward sentencing departure.
also argues that he cannot be convicted for the theft charges in Sherburne County
because Minn. Stat. § 609.035, subd. 1 (2004) prevents a court from imposing
more than one sentence if a person’s conduct constitutes more than one offense and
these offenses are part of the same behavioral incident. A person may not be convicted of
both theft and receiving stolen property with respect to property involved in
the same transaction. State v. Lawrence, 312 N.W.2d 251, 252 (Minn.
1981); see also Minn. Stat. § 609.04,
subd. 1 (2004) (a defendant “may be convicted of either the crime charged or an
included offense, but not both”). The
district court’s determination of whether multiple offenses are part of a
single behavioral incident will not be overturned unless clearly
erroneous. State v. Carr, 692 N.W. 2d 98, 101 (
The record indicates that the receiving stolen property offense from Mille Lacs County dealt with only one of the Sherburne County thefts for which appellant was charged. The Sherburne County complaint was based on that theft and two additional thefts. The district court correctly found that any two of the thefts clearly would total $500 or more, the minimum amount required for the theft conviction. Minn. Stat. § 609.52, subd. 3(3)(a) (2004). Thus, the record supports a finding that these were separate incidents for sentencing purposes. Since the district court did not clearly err in determining that appellant’s theft offenses were separate behavioral incidents from the receiving offense, we affirm his convictions.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.