This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Frank Anthony Loprete, Sr.,
Filed April 3, 2007
Dakota County District Court
File No. K9-04-293
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Thomas Lockhart, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Frank Anthony Loprete, Sr., challenges the revocation of his probation imposed for felony theft, arguing that (1) the district court abused its discretion by revoking his probation without making adequate Austin/Modtland findings; and (2) his sentence unconstitutionally violates his jury-trial rights. We affirm.
D E C I S I O N
Appellant argues that the district court abused its discretion by revoking his probation without making adequate Austin/Modtland findings. We disagree.
A district court has “broad
discretion in determining if there is sufficient evidence to revoke probation
and should be reversed only if there is a clear abuse of that discretion.” State
Generally, the district court must
consider three factors on the record before revoking probation.
Prior to Modtland, we upheld a revocation decision if the record provided
sufficient evidence to support the district court’s decision. Modtland,
695 N.W.2d at 606. Modtland announced that this “sufficient evidence exception” was a
[t]he requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation. . . . [I]n making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon.
Here, the district court did not
expressly recite either the second or third
In Modtland, the defendant admitted that his actions were a violation
of his probation, but argued that the violation should not result in probation
Appellant challenges his sentence under the career-offender statute, arguing that it violates his Sixth Amendment jury-trial rights. We disagree.
The United States Supreme Court has
held that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi
The career-offender statute provides
enhanced sentences for offenders who commit a sixth crime as part of a pattern
of criminal conduct. Under the 2004
version of the career-offender statute, a “judge may impose an aggravated
durational departure . . . up to the statutory maximum sentence if the judge
finds . . . 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
But a defendant may waive his
constitutional right to a jury trial as long as the waiver is knowing,
voluntary, and intelligent. Blakely, 542
At appellant’s plea and sentencing hearing, appellant answered “yes” when asked by his attorney if he understood that by pleading guilty he was giving up the right to a trial by jury. Appellant also waived his right to any Blakely issues in the following open-court exchange with his attorney:
Q. [D]id we talk today . . . about this issue as relates to the case that I talked to you about from the United States Supreme Court [?]
. . .
Q. The Blakely case?
Q. And I advised you that kind of the state of the law is in flux, that being that there’s not any real set of guidelines as to how the decision from the United States Supreme Court is being dealt with in Minnesota Courts, right?
A. That’s correct.
Q. And I’ve advised you that there have
been cases that are kind of pending before the courts in
A. That’s correct.
Q. But, if you accept the plea agreement from the state, do you understand that you give up your right to claim any constitutional violations . . . if the Judge imposes the 60 months?
A. That’s correct.
Q. In other words, you’re not going to be able to come back later and say, well, he shouldn’t have given me 60 months because I had a right to a trial under this issue or the other issue?
A. I understand.
Q. You understand that you’re agreeing that based on your prior record that you are a career criminal?
Q. Okay. And you understand that you’re giving up the right to a formal hearing as it relates to the issue of whether or not your prior offenses could be considered as part of a pattern?
A. That’s correct.
Despite this exchange, appellant now argues that his waiver of a jury trial is invalid because, under the applicable career-offender statute, a right to a jury determination of aggravating sentencing factors did not exist and therefore could not be waived. We disagree.
The Minnesota Supreme Court recently declared that district courts have
inherent judicial authority to empanel sentencing juries where the judicial
fact-finding portion of the Minnesota Sentencing Guidelines violates the Sixth
Amendment and the legislature has not provided for an alternative process to
effectuate the intent of the guidelines.
State v. Chauvin, 723 N.W.2d
20, 27 (