This opinion will be unpublished and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
Anthony Maurice Scissiom,
Filed May 1, 2007
Toussaint, Chief Judge
Lori Swanson, Attorney
James C. Backstrom,
John M. Stuart, State
Public Defender, F. Richard Gallo, Jr., Assistant Public Defender,
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
This appeal from a sentence for felony theft has been remanded by the supreme court for reconsideration in light of that court’s decision in State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006). Based on the supreme court’s holding in Chauvin, we affirm.
Whether the district court had inherent
authority to impanel a sentencing jury is a legal issue, which this court
reviews de novo.
Appellant Anthony Maurice Scissiom pleaded guilty to felony theft (value over $500) under a plea agreement allowing him to retain the right to a jury determination whether the state had proven grounds to enhance his sentence under the career-offender statute. Scissiom stipulated that he had the five prior felony convictions required by the career-offender statute. See Minn. Stat. § 609.1095, subd. 4 (2004). A sentencing jury was impaneled and found that Scissiom’s current offense was committed as part of a pattern of criminal conduct. The district court then sentenced Scissiom to 48 months, a double upward departure from the presumptive sentence of 24 months, under the career-offender statute.
The supreme court in Chauvin held that the district court in that case “had the inherent
judicial authority to impanel a sentencing jury.” 723 N.W.2d at 24. As Scissiom argues, however, the facts of
this case are somewhat different. In Chauvin, the trial court used a
sentencing jury before the legislature had enacted any amendment on the
This court has recently addressed that
argument in State v. Boehl, 726
N.W.2d 831 (
This court in Boehl noted that when Boehl’s resentencing came up on remand “the
legislature had amended aspects of the
The Boehl court extends Chauvin’s
approval of inherent judicial authority to the time period after the 2005
statutory amendments by this emphasis on the lack of a constitutional sentencing mechanism.
Under Boehl’s reading of Chauvin, then, it was “necessary” for the district court in this case to impanel a sentencing jury on remand because, although the 2005 amendments had been enacted, they did not apply to Scissiom’s offense.
Finally, Scissiom argues that the 2005
statutory amendments reflected a legislative intent that pre-August 1, 2005
offenses should not be enhanced under the career-offender statute using a
sentencing-jury mechanism. But Boehl has rejected this argument that
impaneling a sentencing jury conflicts with legislative intent, noting the 2005
legislature was concerned only with ex post facto problems, and the supreme
court in Hankerson has held there are
no such problems with retroactive application of the 2005 amendments. See id.
at 841 (citing Hankerson v. State,
723 N.W.2d 232, 242 (
Thus, we conclude that the district court had inherent judicial authority to impanel a sentencing jury in this case to determine facts under the career-offender statute. Therefore, the upward sentencing departure imposed on Scissiom must be affirmed.