This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,


Willie Smith,



Filed February 13, 2007


Peterson, Judge



Hennepin County District Court

File No. 03033288


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, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N




            In this appeal from a sentence for first-degree aggravated robbery imposed on remand from this court for resentencing, appellant argues that the district court’s resentencing procedures were improper and that the sentence is unreasonable.  We affirm.


            Appellant Willie Smith was convicted of first-degree aggravated robbery and a lesser-included charge of simple robbery following a May 2003 incident.  The district court sentenced Smith to 240 months as a dangerous offender and career offender under Minn. Stat. § 609.1095, subds. 2, 4 (2002).  Smith appealed his conviction, and this court affirmed in part and remanded for resentencing consistent with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  State v. Smith, No. A03-1800, 2004 WL 2709993, at *3 (Minn. App. Nov. 30, 2004).  On remand, over Smith’s objection, the district court impaneled a second jury to determine whether Smith met the criteria for sentencing as a dangerous or career offender under section 609.1095.  The jury found that Smith had five or more prior felony convictions, that the May 2003 offense was a felony and a violent crime that was committed as part of a pattern of criminal conduct, that Smith had two or more prior convictions for violent crimes, and that Smith is a danger to public safety.  The district court again sentenced Smith to 240 months, which is an upward durational departure from the presumptive guidelines sentence.  This appeal followed.



            Smith argues that (1) the district court lacked authority to impanel a second jury to consider aggravating sentencing factors; (2) the district court’s resentencing procedure violated the double-jeopardy prohibition against serialized prosecutions and multiple punishments; (3) the changes to the sentencing guidelines made in 2005 do not apply to his case; (4) applying laws enacted in 2005 to him violates the Ex Post Facto Clause; (5) the district court’s resentencing procedure was riddled with errors, which denied him due process of law and his right to a fair trial; and (6) the greater-than-double upward departure exaggerated the severity of the offense and is unreasonable.

            Smith’s first four arguments raise issues of statutory interpretation and the constitutionality of the district court’s actions, which are subject to de novo review.  State v. Wolf, 605 N.W.2d 381, 386 (Minn. 2000).


            Smith argues that because Minn. Stat. § 609.1095, subds. 2, 4 (2002), the dangerous-offender and career-offender statutes in effect at the time he committed the 2003 offense, provided that a judge may impose an aggravated durational departure from a presumptive sentence based on its own findings and did not allow for jury fact-finding, the district court lacked authority to impanel a second jury to determine the existence of aggravating factors.  Smith contends that the 2005 amendment to the statute, which allows jury fact-finding, is prospective only.  See Minn. Stat. § 609.1095, subds. 2, 4 (Supp. 2005) (providing that judge may impose aggravated durational departure based on fact-finder’s determinations).  Smith further argues that the 2002 statute is facially unconstitutional because it allows judicial fact-finding, and that the district court had no inherent authority to submit aggravating factors to a second jury.  See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (holding that any fact other than prior conviction that increases penalty above statutory maximum must be submitted to jury and proved beyond a reasonable doubt); see also Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537 (holding that for Apprendi purposes, the statutory maximum is the maximum sentence that may be imposed based solely on facts reflected in jury verdict or admitted by defendant); State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005) (holding that imposition of enhanced sentence based on district court’s finding that defendant’s convictions formed pattern of criminal conduct under Minn. Stat. § 609.1095, subd. 4 (2004), violated Sixth Amendment right to jury trial under Blakely); State v. Barker, 705 N.W.2d 768, 775-76 (Minn. 2005) (concluding that absence of legislative authorization prevented court from authorizing sentencing jury on remand, noting that legislature did not amend Minn. Stat. § 609.11 (2004) in 2005 to provide for jury fact-finding as it had with a number of other statutes); State v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005) (holding that imposition of upward departure from presumptive guideline sentence is unconstitutional when district court based departure on its findings of aggravating factors without jury determining factors under reasonable-doubt standard) (Shattuck II).  

            Although in Shattuck, 704 N.W.2d at 148, and Barker, 705 N.W.2d at 776, the supreme court declined to authorize a district court to impanel a sentencing jury in the absence of legislative authority, in State v. Chauvin, 723 N.W.2d 20, 23-29 (Minn. 2006), the supreme court determined that the district court possesses such inherent authority and held that “the district court’s exercise of its inherent authority to impanel a jury on sentencing factors was not precluded by Shattuck II or Barker or by reasons of comity to the legislature.”  Chauvin, 723 N.W.2d at 29. 

            Also, in State v. Kendell, the supreme court applied Chauvin and concluded that the district court has inherent judicial authority to submit a special interrogatory to the jury to determine whether the defendant is a danger to public safety under Minn. Stat. § 609.1095, subd. 2, even though the legislature had not amended that statute to remedy its constitutional deficiencies in light of BlakelyState v. Kendell, 723 N.W.2d 597, 610 (Minn. 2006).  Smith was resentenced after the legislature amended section 609.1095 to remedy its constitutional deficiencies, but the amendments apply only to offenses committed on or after August 1, 2005.  2005 Minn. Laws ch. 136, art. 16 § 11, 12, at 1118-19.  Consequently, the district court lacked legislative authority to convene a sentencing jury, but the district court was in the same position as the district court in Chauvin, and it relied on its inherent authority to impanel a sentencing jury.  Because, under Chauvin and Kendell, the district court has inherent authority to impanel a sentencing jury, we conclude that the district court’s decision to impanel a second jury to consider whether aggravating factors existed under section 609.1095, when it lacked legislative authority to do so, is not a basis for granting Smith relief.


            Smith argues that impaneling a second jury violated the Double Jeopardy Clause’s prohibition against serialized prosecutions and multiple punishments.  See Brown v. Ohio, 432 U.S. 161, 169-70, 97 S. Ct. 2221, 2227 (1977) (holding subsequent prosecution for greater offense after conviction of lesser-included offense violates Double Jeopardy Clause of Fifth and Fourteenth Amendments).  But a claim that a resentencing hearing amounts to a subsequent prosecution of a greater offense was recently rejected by the supreme court.  In Hankerson v. State, 723 N.W.2d 232, 237 (Minn. 2006), the supreme court explained that a resentencing hearing is not a second prosecution because a second prosecution can only occur after the first prosecution has terminated, and a defendant seeking resentencing cannot claim that the first prosecution has terminated.  Id. at 237-39.  Because Smith successfully challenged his first sentence on appeal, he cannot claim that he had “any justifiable expectation of finality,” which is “a fundamental jeopardy requirement” with respect to his sentence.   Id. at 240 (quotation omitted).

            Unless a defendant has affirmatively been acquitted of the aggravating factors, either because the state did not seek an aggravated sentence at the first sentencing hearing or the district court determined that the evidence was insufficient to support the aggravated sentence, a resentencing hearing on those factors is not a second prosecution.  Id. at 238-39.  Therefore, the district court’s use of a sentencing jury to consider aggravating factors at the resentencing hearing did not violate the Double Jeopardy Clause.  “[A]s a matter of judicial policy,” the second sentence cannot be more onerous than the first.  Id. at 241.  The district court did not violate this policy when it imposed the same 240-month sentence it had imposed at the initial sentencing.

            Smith argues that the state’s failure to include the aggravating factors in the complaint deprived him of notice and an opportunity to prepare his defense.  But this argument was rejected in Chauvin, in which the supreme court acknowledged that the due-process and notice requirements in the Sixth and Fourteenth Amendments require that the state inform a defendant of the nature of the charges to enable the defendant to prepare a defense but concluded that aggravating factors need not be alleged in the complaint, and due-process rights are not violated, as long as the defendant is on notice of the maximum sentence that could be imposed.  723 N.W.2d at 29-30.  The complaint charging Smith with aggravated first-degree robbery informed him that the penalty is “0-20 YEARS AND/OR $35,000,” and the state provided Smith with notice that it was seeking an upward durational departure before his first sentencing.  Therefore, the failure to include the aggravating factors in the complaint did not violate constitutional due-process or notice requirements.


            Smith argues that the 2005 amendments to the sentencing guidelines, which authorize a district court to impose an upward departure based on jury findings, do not apply to his 2003 offense, and, therefore, the district court’s resentencing decision, which was based on the sentencing jury’s findings, must be reversed. 

            Following Blakely, the legislature amended Minn. Stat. § 244.10, subd. 5(a) (2004), which governs sentencing hearings, to authorize district courts to convene sentencing juries to make findings on factors in support of a sentencing departure.  2005 Minn. Laws ch. 136, art. 16, § 4, at 1115.  Also in 2005, Minn. Sent. Guidelines II.D was amended to authorize district courts to rely on jury findings when imposing aggravated sentences.  The 2005 amendments to the sentencing guidelines were prospective only.  Shattuck, 704 N.W.2d at 147 n.16.  Smith argues that although the amendments to Minn. Stat. § 244.10, subd. 5(a), applied to his resentencing hearing, without the amendments to the sentencing guidelines, the district court lacked the authority to convene a sentencing jury. 

            But the supreme court rejected this argument in Hankerson, where it stated:

When read together, the 2005 amendments to section 244.10, subd. 5(a), and the former version of Minn. Sent. Guidelines II.D authorize a district court to impanel a sentencing jury on resentencing of a conviction obtained before the act’s effective date and to use the jury’s findings to impose a new sentence, including, where appropriate, an aggravated sentence.


723 N.W.2d at 236. 


            Smith argues that even though the 2005 amendments to Minn. Stat. § 244.10, subd. 5(a), apply to resentencing hearings, applying the 2005 amendments to section 244.10 and the sentencing guidelines to his 2003 offense violates the Ex Post Facto Clause of the state and federal constitutions.  This argument was also rejected in Hankerson, in which the supreme court held that retroactively applying the 2005 amendments does not violate the Ex Post Facto Clause and explained that   

[t]he effect of the 2005 amendments to section 244.10 was to change the roles of the judge and jury.  This is a procedural change that did not add aggravating factors, or increase the duration of the sentence authorized by a finding of aggravating factors.  Both at the time [defendant] committed the offense and after the 2005 amendments to section 244.10, [the offense] with aggravating factors was punishable as a crime and carried with it the possibility of [the sentence the district court imposed].  The amendments only changed the procedure used to establish the aggravating factors.


723 N.W.2d at 242.  The supreme court explained further that even if the 2005 amendments are not procedural, they are still not ex post facto laws because they do not work to the defendant’s disadvantage; are not more onerous than the prior law; and actually serve to vindicate, not violate, the defendant’s constitutional rights.  Id.  Smith was on notice in 2003 that the conduct that he was about to engage in was illegal and carried a possible punishment of 240 months, and that notice satisfied the Ex Post Facto Clause.  See id. at 243. 


            Smith argues that even if the district court could convene a sentencing jury, the sentencing procedure was riddled with irregularities and errors and denied him due process of law and his right to a fair trial.

            First, Smith argues that it was improper for the district court to instruct the jury during voir dire:  “you will consider today whether any aggravating factors exist, and your findings will aid the court in determining the proper sentence.”  The district court later stated that the jury’s answers to the verdict questions “will assist the court in determining the sentence which is most appropriate.”  After the jury was sworn, the district court reminded the jurors what they were there to determine and stated that their answers “will assist the court in determining Mr. Smith’s sentence.”  Smith contends that a reasonable juror would infer from these statements that answering the verdict questions in the affirmative would get Smith a longer sentence.  Smith argues that it was error for the district court to focus the jury on punishment when that is the court’s duty.  See State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999) (stating jury’s role is to determine whether state met its burden of proof, not to consider sentence). 

Because Smith failed to object to any of these instructions, he has waived his right to challenge them on appeal, unless the instructions constitute plain error.  See State v. Charles, 634 N.W.2d 425, 433 (Minn. App. 2001) (stating failure to object to jury instructions waives right to appeal unless it constitutes plain error); see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (stating only unobjected-to error that was plain and affected substantial rights is grounds for reversal).  The district court specifically stated that the jury’s findings would assist the court in determining Smith’s sentence, which indicated to the jury that determining the sentence was the court’s role.  Furthermore, the instructions are consistent with 10 Minnesota Practice, CRIMJIG 8.01 (2006), which is to be used in sentencing proceedings.  Therefore, we conclude that giving the instructions was not plain error. 

Second, Smith argues that the district court improperly limited his voir dire questioning when it sustained the state’s objection to this question to a juror:  “Do you feel like the punishment should fit the crime?”  The right to an impartial jury includes the right to conduct adequate voir dire to determine whether a juror may be unqualified.  State v. Ritter, 719 N.W.2d 216, 219-20 (Minn. App. 2006); see Minn. R. Crim. P. 26.02 (governing jury selection and providing procedure for voir dire examination and for-cause and peremptory challenges).  A district court’s decisions on the conduct of voir dire are reviewed for an abuse of discretion.  Ritter, 719 N.W.2d at 220.  It is an abuse of discretion for a district court to frustrate the purposes of voir dire by limiting a defendant’s ability to discover a basis for a challenge for cause or to make an informed choice regarding the exercise of a peremptory challenge.  Id. 

            In the context of this argument, Smith presumes that the defendant should be able to ask a juror about his or her views on punishment, even though the court is responsible for making sentencing decisions.  Because sentencing is the province of the district court, the district court did not abuse its discretion in sustaining the state’s objection to the question. 

            Third, Smith contends that the evidence was insufficient to support the finding that he committed the aggravated robbery as part of a pattern of criminal conduct.  See Minn. Stat. § 609.1095, subd. 4 (providing that judge may impose aggravated durational departure from presumptive felony sentence up to statutory maximum sentence if fact-finder determines defendant has five or more prior felony convictions and present offense was committed as part of pattern of criminal conduct).  When considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The verdict will not be disturbed if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably reach the verdict that it did.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            “A pattern of criminal conduct refers to acts related to one another through a common scheme or plan or shared criminal purpose.”  State v. Mitchell, 687 N.W.2d 393, 399 (Minn. App. 2004) (quotation omitted), review granted (Minn. Dec. 22, 2004), review denied (Minn. Dec. 13, 2005).  “The pattern may be shown by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.”  Id. (quoting State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996)).

            Determining whether a conviction is part of a “pattern of criminal conduct” involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar with respect to any of the characteristics listed in Gorman.  This determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right.


Id. at 399-400.  The mere fact that a defendant has a prior conviction “does not establish the motive behind the crime, its purpose, results, participants, or victims.”  Id. at 400.

            Smith argues that the evidence offered at the resentencing hearing was limited to a list of his prior convictions, and without evidence establishing a similar motive, purpose, results, participants, or victims, the evidence was insufficient to allow the jury to find that the offenses were committed as part of a pattern of criminal conduct.  Smith’s parole agent testified about the offenses of which Smith had been convicted, but offered no testimony about the motive, purpose, results, participants, victims, or other circumstances of the offenses.  Thus, the evidence was insufficient to support the finding that the current offense was committed as part of a pattern of criminal conduct.  But, by itself, this is not a basis for reversing Smith’s sentence because the district court sentenced him as both a career offender and as a dangerous offender, and a pattern of criminal conduct is required only for sentencing as a career offender.

            Fourth, Smith argues that the district court erred in allowing the parole agent to testify that Smith’s felony convictions were violent crimes under the dangerous-offender statute, which, Smith contends, is a legal conclusion.  See Minn. Stat. § 609.1095, subd. 1(d) (2002) (providing list of statutes that constitute violent crimes); State v. Moore, 699 N.W.2d 733, 739-40 (Minn. 2005) (determining district court committed reversible error by permitting doctor to testify that loss of tooth constituted serious bodily injury under charging statute).  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). 

            Smith’s argument fails for three reasons.  One, although the district court instructed the jury to determine whether Smith had prior convictions for violent crimes, it is the district court that is to determine “on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes.”  Minn. Stat. § 609.1095, subd. 2(1); see also Mitchell, 687 N.W.2d at 400 (noting that under Apprendi fact of prior conviction need not be found by jury).  Two, because Minn. Stat. § 609.1095, subd. 1(d), includes a list of statutory citations and defines “violent crime” as a violation of any of the statutes cited on the list, the parole agent’s testimony that Smith’s felony convictions were violent crimes under the dangerous-offender statute was really just a statement that the convictions were for violating statutes that are on the list; it does not express a legal conclusion drawn by the parole agent.  And three, even though the parole agent might have incorrectly characterized some of Smith’s convictions as violent crimes when they were not, the record demonstrates that Smith had the required “two or more prior convictions for violent crimes.”  Minn. Stat. § 609.1095, subd. 2(1).  The district court correctly stated during sentencing that Smith had four prior violent-crime convictions:  two felony third-degree controlled-substance convictions, one felony simple-robbery conviction, and one felony third-degree-assault conviction, all of which qualify as violent crimes under Minn. Stat. § 609.1095, subd. 1(d).  Therefore, even if the district court abused its discretion in admitting the parole agent’s testimony, the testimony did not affect the ultimately correct finding by the district court that Smith has the required number of prior violent-crime convictions to permit sentencing as a dangerous offender.   

             Finally, Smith argues that the cumulative effect of these errors deprived him of a fair trial and, therefore, he is entitled to a new sentencing trial.  However, for the reasons we have stated, none of the alleged errors, alone or cumulatively, establishes a basis for relief.  Because Smith does not challenge the jury’s finding that he is a danger to public safety and he has not shown that the jury or district court erred in finding that he had been convicted of two or more prior violent crimes, the district court was authorized to sentence him to an aggravated durational departure as a dangerous offender under Minn. Stat. § 609.1095, subd. 2.


            Smith argues that the 240-month sentence, which was the statutory maximum, exaggerated the severity of the offense of conviction and was unreasonable.  On appeal, a reviewing court “may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  Minn. Stat. § 244.11, subd. 2(b) (2004).  This court reviews the district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  

            Generally, “a sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  And while the dangerous-offender statute authorizes the district court to impose an upward departure without making separate findings regarding aggravating circumstances, to ensure sentence proportionality, district courts must use caution when imposing sentences at or near the statutory maximum.  Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003).  The reason why district courts need to be cautious is that the defendant’s criminal history, which is the reason for the upward departure under the dangerous-offender statute, has already been factored in when calculating the presumptive sentence.  Id.  “Thus, when severe aggravating circumstances are not present, imposing more than a double durational departure under the dangerous-offender statute may artificially exaggerate the defendant’s criminality because the defendant’s criminal record is considered twice.”  Id. 

            Smith argues that the facts in his case do not warrant the 240-month sentence.  The facts of the 2003 incident, as detailed in Smith’s first appeal, are that Smith took money from a woman as she was leaving a convenience store, and when the victim tried to get the money back, Smith hit her in the face several times, causing her to fall to the ground.  Smith, 2004 WL 2709993, at *1.  Smith contends that his conduct pales in comparison to the conduct in Neal,in which the supreme court determined that a 480-month, statutory-maximum sentence for kidnapping was excessive and unreasonable.  See Neal, 658 N.W.2d at 548.  Smith argues that if the long history of serious personal offenses in Neal did not justify a statutory maximum sentence, neither do his prior convictions under the facts of this case. 

            But in Neal, the supreme court did not reverse the sentence for the kidnapping offense because it was not justified by the long history of serious personal offenses; the supreme court reversed the sentence because it was not commensurate with the gravity of the kidnapping offense.  Id. The defendant in Neal was sentenced under the dangerous-offender statute for aggravated robbery and for a kidnapping that occurred within the context of the aggravated robbery.  Id. at 547.  The supreme court explained that

the impetus of the [kidnapping] offense was the aggravated robbery of the store.  It appears that Neal committed the offense of kidnapping to facilitate the robbery of the store.  The statutory maximum sentence for first-degree aggravated robbery is 240 months.  Minn. Stat. § 609.245, subd. 1.  In essence, Neal was sentenced to an additional 240 months for the act of transporting [the victim] from the front of the store to the bathroom in the back of the store, and confining her for approximately 10 minutes. 


Id.  The supreme court then compared the 480-month sentence to sentencing departures imposed in other kidnapping cases and concluded that it was excessive and unreasonable.  Id. at 548.

            Smith’s current offense may not include severe aggravating factors, but as the supreme court explained in Neal, the dangerous-offender statute authorizes “sentences that may be disproportionate to the severity of the convicted offense.  Under the dangerous-offender statute, the primary factor for imposing a durational departure is the offender’s criminal history.”  Id. at 546.  While seven of Smith’s prior convictions were already factored in when determining the presumptive sentence, the district court at sentencing also noted “no less than 18 convictions between the ages of 18 and 31, including numerous violent felonies, in addition to other felonies and numerous misdemeanors.”  These facts of conviction need not be found by a jury to support an upward departure.  Smith has not shown that in light of this history of offenses, the district court abused its discretion when it sentenced him to the statutory maximum sentence of 240 months.


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