This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed April 3, 2007
Hennepin County District Court
File No. 04084039
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin
County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government
John M. Stuart, State Public
Defender, Timothy Mulrooney and Jane E. Rydholm, Special Assistant State Public
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s aggravated durational departure from the presumptive sentence, arguing that it was improper for the court to use a jury to determine an aggravating factor under the career-offender statute. He also raises various issues in his pro se brief. Because the district court had the inherent authority to submit a departure factor to the jury, and because the pro se issues are without merit, we affirm.
Respondent State of Minnesota charged appellant David Royster with two counts of second-degree burglary and alleged in its complaint that Royster was a career offender under Minn. Stat. § 609.1095, subd. 4 (2004).
In a trial on only the burglary charges, a jury found Royster guilty of one count and not guilty of the other. The district court then determined that it would submit to the jury the issue of whether Royster’s current offense was part of a pattern of criminal conduct within the purview of the career-offender statute. Royster objected on the ground that the law did not permit a jury to make this determination. The court overruled the objection. Royster then moved to impanel a new jury for this proceeding, but the court denied the motion.
Royster stipulated that his current offense was a felony and that he had five or more prior felony convictions, as required by the career-offender statute. The state then presented evidence of the circumstances of Royster’s prior convictions which consisted of two burglaries, one attempted burglary, two receiving stolen goods, and one attempt to offer forged checks, all between 1995 and 2002.
Royster testified on his own behalf, indicating that he is an ordained minister, runs a prison ministry, and is the executive director of a nonprofit corporation that operates halfway houses.
The jury found that the current burglary had been committed as part of a pattern of criminal conduct. The court sentenced Royster under the career-offender statute to an executed term of 108 months, which was an aggravated durational departure from the presumptive sentence of 48 months. Contending that the departure was improper and the use of a jury to decide the departure factor was not authorized by law, Royster appealed.
D E C I S I O N
argues that the district court lacked inherent authority to impanel a jury to
make the findings required by Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), when the version of the
career-offender statute in effect at the time of his offense did not authorize
a sentencing jury. Whether the district
court has authority to implement a particular court procedure presents a
question of law, which this court reviews de novo. State
v. Kendell, 723 N.W.2d 597, 610 (
The Minnesota Supreme Court
has held that a district court had inherent authority to impanel a sentencing
jury before the legislature expressly authorized the use of sentencing
juries. State v. Chauvin, 723 N.W.2d 20, 24 (
Royster argues, however,
that even if the use of juries for aggravated sentencing was permissible prior
to legislative authorization, the district court lacked authority to impanel a
sentencing jury after the legislature
had acted to authorize sentencing juries, but when the amended version of the
statute was not effective for offenses committed at the time of appellant’s
offense. The version of the career-offender
statute under which appellant was sentenced allowed the district court to
impose an upward departure based on its finding that the offender “has five or
more felony convictions and that the present offense is a felony that was
committed as part of a pattern of criminal conduct.”
the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the factfinder determines 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.
This court has recently addressed this
issue in the context of the patterned-sex-offender statute, Minn. Stat.
§ 609.1352 (1996). State v. Boehl, 726 N.W.2d. 831, 833, (
We adopt the reasoning in Boehl as applied to Royster’s sentencing under the career-offender statute and conclude that the district court did not err by impaneling a sentencing jury to determine whether Royster’s crime was committed as part of a pattern of criminal conduct so as to support an aggravated sentence. Unlike the patterned-sex-offender statute in Boehl, the career-offender statute, Minn. Stat. § 609.1095, subd. 4, does not require, but only permits, the imposition of an upward durational departure on findings that the defendant has five or more felony convictions and that the present offense was committed as part of a pattern of criminal conduct. But this difference is not material, and we conclude that the legislative enactment of the career-offender statute, with its provision for aggravated sentencing, evinces a legislative intent to provide a mechanism for that sentencing. Following the reasoning in Boehl, we conclude that because the legislature had not provided a procedure for effectuating its intent in the period between the Blakely decision and the effective date of the 2005 statute as revised to include the jury’s fact-finding role in determining aggravating sentencing factors, the district court may impanel a sentencing jury to fulfill that intent. We also recognize, as noted in Boehl, that Minn. Stat. § 244.10, subd. 5, has been amended explicitly to apply to “‘the state’s request for an aggravated sentence under any sentencing enhancement statute . . . .’” Boehl, 726 N.W.2d at 840 n.4 (quoting Minn. Stat. § 244.10, subd. 5(a) (2006)). Although not determinative, this amendment additionally reflects legislative intent to allow impaneling a sentencing jury under the career-offender statute.
We therefore affirm the district court’s decision to impanel a sentencing jury to determine the aggravating factor of a pattern of criminal conduct under Minn. Stat. § 609.1095, subd. 4 (2004).
Pro Se Issues
The burglary of which Royster was convicted involved a house that was under renovation. Various materials and fixtures had been removed from the house. Witnesses testified to seeing Royster’s station wagon at various times in the vicinity of the house, and an antiques re-seller identified Royster as the driver of the station wagon and as a person who tried to sell architectural fixtures to him.
Royster contends in his pro se brief that one witness lied, that no evidence linked him to the burglary, and that his attorney was ineffective in assisting him with his defense.
The determination of the
“credibility of witnesses is generally the exclusive province of the
jury.” State v. Doppler, 590 N.W.2d 627, 635 (
Royster implies that his
conviction was based on circumstantial evidence and, therefore, cannot
stand. A conviction may be based on
circumstantial evidence, which is weighed the same as direct evidence. State
v. Webb, 440 N.W.2d 426, 430 (
Finally, Royster argues
that his trial counsel failed to provide effective assistance. A party alleging ineffective assistance of
counsel must show that counsel’s performance
“‘fell below an objective standard of reasonableness’ and ‘that there is
a reasonable probability that, but for counsel’s unprofessional errors, the
results of the proceeding would have been different.’” Gates
v. State, 398 N.W.2d 558, 561 (
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.