This opinion will be unpublished and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
Charles Edward Love, Sr.,
Filed May 15, 2007
Ramsey County District Court
File No. K5-05-823
Lori Swanson, Attorney General,
John M. Stuart, State Public
Defender, Davi E. Axelson, Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was charged with two counts of burglary in the second degree and four counts of burglary in the third degree, in violation of Minn. Stat. §§ 609.582, subds. 2(d), 3, .1095, subd. 4 (2004). The dates of the six alleged burglaries spanned from January 24, 2005, to February 25, 2005.
The jury trial began on August 1, 2005, and the jury found appellant guilty on counts one, two, four, five, and six. The jury acquitted appellant on count three, burglary in the second degree. The trial was bifurcated. Before the second phase began, the parties stipulated that appellant had at least five prior felony convictions for purposes of career-offender sentencing under Minn. Stat. § 609.1095. During the sentencing phase, after hearing evidence regarding appellant’s prior robbery and theft-related convictions, the jury found beyond a reasonable doubt that appellant committed each of the five instant offenses as part of a pattern of criminal conduct.
The district court sentenced appellant on October 6, 2005. Appellant objected to the bifurcated trial procedure and requested that presumptive sentences be imposed. The district court denied the request and imposed aggravated durational departure sentences of 120 months for count one and 60 months for each of the other four counts, each sentence to run concurrently.
This appeal follows.
D E C I S I O N
argues that the district court did not have the authority to convene a
sentencing jury to determine aggravating sentencing factors. Whether the district court has the authority
to do so is a question of law that this court reviews de novo. State
v. Chauvin, 723 N.W.2d 20, 23 (
Appellant was sentenced under the 2004 career-offender statute, which states:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a Sentencing Guidelines presumptive imprisonment sentence, 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.
§ 609.1095, subd. 4 (2004) (emphasis added). In 2005, the legislature amended the
career-offender statute to comply with Blakely
v. Washington, 542
We reject appellant’s argument because in Chauvin, the Minnesota Supreme Court determined that the district court possesses inherent authority to empanel a sentencing jury to find sentencing factors. 723 N.W.2d at 24.
Here, just as in Chauvin, the district court bifurcated the trial. After phase one of the trial in which the jury found appellant guilty of five of the six counts with which he was charged, the district court submitted aggravating sentencing issues to the jury during phase two of the trial. The jury found beyond a reasonable doubt that each of these offenses was committed as part of a pattern of criminal conduct. Consequently, the district court imposed a sentence that was an upward durational departure. The district court acted properly under its inherent authority to convene a sentencing jury.
also argues that the 2004 career-offender statute is unconstitutional, because
it allows judicial fact-finding to increase the presumptive sentence. Minn. Stat. § 609.1095, subd. 4
(2004). Appellant likens the career-offender
statute to Minn. Stat. § 609.109, subd. 4 (2004), which the Minnesota
Supreme Court held was unconstitutional, because the statute “authorize[d] the
district court to make such an unconstitutional upward durational departure
upon finding an aggravating factor without the aid of a jury.” State
v. Shattuck, 704 N.W.2d 131, 142–43 (
constitutional challenge was resolved in State
v. Kendell, a case in which the Minnesota Supreme Court applied Chauvin.
723 N.W.2d 597 (
this factual scenario was recently addressed in State v. Boehl, 726 N.W.2d 831 (Minn. App. 2007). Here, as in Boehl, the legislature had already amended aspects of the
argues that the district court’s application of the 2005 amendments in
conjunction with amendments to Minn. Stat. § 244.10
to convene a sentencing jury, violated the ex post facto clause of the
The 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 232,
Appellant was on notice that the conduct he was about to engage in was illegal and carried possible punishments of 120 months for burglary in the second degree and 60 months for burglary in the third degree. Minn. Stat. § 609.582, subds. 2, 3 (2004). That notice satisfies the ex post facto clause. Hankerson, 723 N.W.2d at 243.
his pro se supplemental and reply briefs, appellant argues that by empaneling a
sentencing jury, the district court violated the double jeopardy clause’s
prohibition against serialized prosecutions and multiple punishments. See
Brown v. Ohio, 432
Appellant also contends that the
state “never gave notice or charge in the complaint.” Appellant argues that he was not given
adequate notice that the state would seek to sentence him as a career offender,
citing Apprendi v.
Furthermore, Chauvin rejected this notice argument, concluding that aggravating factors need not be alleged in the complaint and that, as long as the defendant is on notice of the maximum sentence that could be imposed, his due-process rights are not violated. 723 N.W.2d at 29–30. Here, the amended complaint did indicate the state’s intention to pursue a more severe sentence. The complaint cited Minn. Stat. § 609.1095, subd. 4, and it stated that appellant had “seven previous felony convictions, including two for burglary, one for theft, and two for aggravated robbery. Complainant believes the current offenses were committed as part of a pattern of criminal conduct.” Appellant’s constitutional due-process rights were not violated.
Because the district court possessed the authority to convene a sentencing jury to determine aggravating factors and because the sentence did not violate the ex post facto clause, we affirm.
 We conclude that our analysis is unaffected by the fact that the present case involved a sentencing jury, whereas Boehl involved a re-sentencing jury.