This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








State of Minnesota,





Steven Julio Hernandez,




Filed February 20, 2007


Toussaint, Chief Judge


Hennepin County District Court

File No. 05044979



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


Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Steven Julio Hernandez challenges his sentence as a career offender for second-degree burglary, arguing that his waiver of his right to a jury determination of the career-offender factors was not valid because the district court then lacked authority to submit a sentencing issue to a jury.  Because we conclude that the district court had that authority, we affirm.


            When appellant committed second-degree burglary, the career-offender statute provided that

the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.


Minn. Stat. § 609.1095, subd. 4 (2004) (emphasis added).  A 2005 amendment replaced the italicized words with “the factfinder determines” in accord with the requirement imposed by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), that factors used to enhance a sentence be either found by a jury or admitted by the defendant.  Minn. Stat. § 609.1095, subd. 4 (Supp. 2005).  “But [the 2005] amendment became effective on August 1, 2005, and applies only to crimes committed on or after that date.”   State v. Adkins, 706 N.W.2d 59, 64 n.3 (Minn. App. 2005) (quotation omitted). 

            Because of an incident that occurred in February 2005, appellant in October 2005 pleaded guilty to second-degree burglary.  At the hearing, he also admitted that he had five or more prior felony convictions that were “a pattern of criminal behavior” and waived his right to a jury finding that he was a career offender.   In November 2005, appellant was sentenced as a career offender under Minn. Stat. § 609.1095, subd. 4 (Supp. 2005). 

Appellant argues that his waiver of a jury finding on the career-offender factors was invalid because the district court lacked authority to impanel a jury for finding career-offender factors for crimes committed prior to August 1, 2005.   But this court has addressed “whether the district court possessed inherent authority to bifurcate [a] trial and submit the issue of pattern [of criminal behavior to establish career-offender status] to the jury” in State v. Lushenko, 714 N.W.2d 729, 734 (Minn. App. 2006), review denied (Minn. Dec. 12, 2006).  Lushenko concluded that “because the legislature amended Minn. Stat. § 609.1095, on remand, the district court would be free to . . . impanel a sentencing jury.”  Id. at 736. 

Similarly, a district court has the right to submit a special interrogatory asking whether a defendant is “a danger to public safety” under Minn. Stat. § 609.1095, subd. 2(2) (Supp. 2005).  State v. Kendell, 723 N.W.2d. 597, 610 (Minn. 2006).  “[T]he special interrogatory used at Kendell’s trial was necessary to achieve a unique judicial function and did not infringe on the legislature’s function of setting the limits on penalties for criminal offenses.”  Id.  A district court also has the right to bifurcate a trial so that the jury, after determining a defendant’s guilt, can determine the existence of aggravating factors under the sentencing guidelines.  State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  “[B]ecause the procedures used by the district court were consistent with those later specified by the legislature, principles of comity no longer discourage the use of inherent judicial authority.” Id. at 29.     

Appellant attempts to distinguish Kendell and Chauvin on the ground that, in those cases, sentencing occurred prior to the 2005 amendments.  See Kendell, 723 N.W.2d at 610 (“As in Chauvin, at the time of Kendell’s trial, the legislature had not yet amended the dangerous offender statute, Minn. Stat. § 609.1095, to remedy its constitutional deficiencies in light of Blakely.”); Chauvin, 723 N.W.2d at 21 (“[T]he legislature had not yet provided for an alternate process, and . . . the court could not otherwise effectuate the legislative policy to depart from the presumptive sentence in appropriate cases.”).  Appellant claims that, between June 2, 2005, when the legislature adopted the amendment, and August 1, 2005, its effective date, see 2005 Minn. Laws ch. 136, courts had no authority, inherent or legislative, to depart from the presumptive sentence.  But “[sentencing] departures . . . always have existed in the realm of inherent judicial authority.  And although the legislature has, in some statutes, provided for sentencing departures, it has never purported to exclusively control the realm of sentencing departures.”  Lushenko, 714 N.W.2d at 737 (Shumaker, J., concurring).

Because the district court had inherent authority to impanel a jury to find career-offender factors at the time appellant waived his right to such a jury, that waiver was not invalid, and there is no basis to reverse appellant’s career-offender sentence.