This opinion will be unpublished and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
Edgar Earl Lenear,
Filed May 22, 2007
Reversed and remanded
Hennepin County District Court
File No. 02081050
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for appellant)
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant Public Defender,
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
After waiving his right to a jury trial, respondent Edgar Earl Lenear was convicted in April 2003 of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c)-(d) (1992), for acts that occurred in 1993. Respondent was sentenced to 344 months in prison based on the district court’s own finding of several aggravating factors. The sentence represents a quadruple upward durational departure from the presumptive sentencing range of 81-91 months.
appealed his conviction, challenging, among other things, the upward durational
sentence imposed by the district court.
While respondent’s appeal was pending, the United States Supreme Court
issued its decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holding that upward
departures in sentencing violate a defendant’s Sixth Amendment right to a jury
trial unless the factors supporting the departure have been found by a jury based
on proof beyond a reasonable doubt.
Therefore, this court “remand[ed] to the district court for a
consideration of the application . . . of Blakely
to [respondent’s] sentence.” State v. Lenear, No. A03-1309, 2004 WL
1878770, at *2 (Minn. App. Aug. 24, 2004), review
On remand, the state argued that the district court had the inherent judicial authority to impanel a sentencing jury to consider the aggravating factors. But respondent requested imposition of the presumptive sentence. The district court vacated respondent’s conviction and ordered sua sponte a new trial on the sentencing and the non-sentencing issues, concluding that a jury could not be impaneled solely to decide the appropriate sentence due to the double-jeopardy protection, among other things. The state appealed, and respondent moved to dismiss the appeal, arguing that the district court’s order was not appealable under Minn. R. Crim. P. 28.04. This court granted respondent’s motion to dismiss the state’s appeal, but noted that the state may have a remedy in a petition for prohibition. State v. Lenear, No. A05-749, at *2 (Minn. App. June 14, 2005) (order) (Lenear II).
subsequently filed a petition for a writ of prohibition seeking to prevent the
district court from enforcing its order directing that respondent be retried on
both sentencing and non-sentencing issues.
The state argued that the district court’s order was “beyond the scope
of this court’s remand to consider ‘the application, if any, of Blakely to [respondent’s sentence].’” This court held that, in light of the
Minnesota Supreme Court’s decision in State
v. Shattuck, 689 N.W.2d 785 (Minn. 2004), “[p]roperly litigating that issue
would not have been beyond the scope of the remand in this case.” State
v. Lenear, No. A05-1350, at *2 (Minn. App. July 26, 2005) (order) (Lenear III). We also rejected the state’s arguments that
res judicata or law of the case barred the district court’s order.
If respondent chooses to file a motion for a new trial on all issues, including guilt or innocence, the question could be adequately litigated and re-presented to this court in another petition for prohibition. Alternatively, if the district court orders imposition of the presumptive sentence, as it has indicated it would do, the state could appeal that sentence.
On remand, the district court stated that this court’s decision in Lenear III was law of the case as applied to the district court and that Lenear III provided the district court with only two options: (1) to grant a new trial on all issues, including respondent’s guilt, should respondent file a motion for a new trial on all issues, or (2) to impose the presumptive sentence. Because respondent did not request a new trial, the district court concluded that it must impose the presumptive guidelines sentence and thereby ordered a resentencing hearing for that purpose. The district court further commented that, even if this court’s order allowed the district court to convene a sentencing jury to consider aggravating factors, it would not do so, as any such trial would violate respondent’s double-jeopardy protection. The district court resentenced respondent to the presumptive prison term of 91 months. This appeal follows.
challenges the district court’s imposition of the presumptive guidelines
sentence, arguing that the district court erred by failing to recognize that it
possessed the inherent judicial authority to impanel a resentencing jury to
determine whether the aggravating factors are present in this case and in
determining that impaneling a resentencing jury would violate respondent’s protection
against double jeopardy. “These issues
present questions of law, which we review de novo.” State
v. Boehl, 726 N.W.2d 831, 835 (Minn. App. 2007) (citing State v. Chauvin, 723 N.W.2d 20, 23 (
Blakely v. Washington, 542
Jeopardy Clause of the United States Constitution provides that “nor shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Similarly, the Minnesota Constitution states
that “no person shall be put twice in jeopardy of punishment for the same
Respondent argues that impaneling a resentencing jury to consider aggravating factors would violate the protection against double jeopardy because the aggravating factors are elements of a greater offense. Indeed, the district court, itself, stated that even if it had the authority to impanel a resentencing jury to consider aggravating factors it would not do so for fear of violating respondent’s protection against double jeopardy.
this argument was recently rejected by the Minnesota Supreme Court in Hankerson v. State, 723 N.W.2d 232 (
appeal, defendant argued, in part, that use of a sentencing jury to consider
aggravating factors in resentencing violated his double-jeopardy protection
because a resentencing hearing would amount to a reprosecution of the greater
offense of criminal sexual conduct with aggravating factors when defendant had
already been convicted of the lesser offense of criminal sexual conduct.
if the state in the first trial had not sought an aggravated sentence or if the district court had “acquitted” [defendant] of the aggravating factors, double jeopardy might prevent the retrial of those factors to a sentencing jury on resentencing . . . . But the state did seek an aggravated sentence in the first trial. And the district court did determine, in the first sentencing hearing, that the aggravating factors had been proven by the state.
As in Hankerson, the state sought an aggravated sentence in respondent’s first trial in this matter, and the district court determined that the aggravating factors had been proven by the state. Therefore, respondent cannot claim that he had “any justifiable expectation of finality” with respect to his sentence. See id. at 240 (quotation omitted). Accordingly, we conclude that the district court’s exercise of its inherent judicial authority to impanel a resentencing jury to consider and make findings with regard to the aggravating factors would not have violated respondent’s double-jeopardy protection.
But just because the district court possesses the inherent judicial authority to impanel a resentencing jury does not necessarily mean that the district court erred when it instead sentenced respondent to the presumptive sentence. Thus, we next consider whether the district court was required to exercise its inherent judicial authority to impanel a resentencing jury.
As a general rule,
“[i]n those cases in which the supreme court has concluded that a district
court may properly exercise its inherent judicial authority to impanel a
sentencing or resentencing jury, the supreme court has not compelled the
district court to do so.” Boehl, 726 N.W.2d at 842. In Boehl,
this court recognized that rather than “mandating the exercise of inherent
judicial authority in other contexts, the supreme court has recognized the
discretionary nature of this decision.”
Boehl, a jury found defendant guilty
of first- and second-degree criminal sexual conduct. 726 N.W.2d at 833. The state moved the district court to impose
an enhanced sentence under the patterned-sex-offender statute based on several
aggravating factors, and the district court agreed.
appeal, this court first determined that, on remand, “the district court could
have properly exercised its inherent judicial authority to impanel a
resentencing jury,” as impaneling a resentencing jury “was necessary to achieve
a unique judicial function without infringing on equally important legislative
or executive functions.”
The facts here are similar. Respondent was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c)-(d) (1992), and was sentenced by the district court to 344 months in prison. The sentence, a quadruple upward durational departure from the presumptive sentence, was based on the district court’s finding of several aggravating factors. Respondent appealed to this court, challenging the upward durational departure, and we remanded for consideration of the application of Blakely to appellant’s sentence. Lenear I. On remand, the district court vacated respondent’s conviction and ordered a new trial on both sentencing and non-sentencing issues, concluding that impaneling a jury to consider only sentencing would violate respondent’s protection against double jeopardy. Lenear II. The state appealed, and this court concluded that the district court could not order a new trial because respondent had not requested a new trial nor asserted his double-jeopardy protection. Lenear III. On remand, the district court imposed the presumptive sentence, reasoning that because respondent did not move for a new trial and because impaneling a sentencing jury would violate respondent’s protection against double jeopardy, it had no other option. Therefore, as in Boehl, the district court did not recognize that it possesses the authority to impanel a resentencing jury and that doing so would not violate double jeopardy. Accordingly, we reverse and remand for the district court’s discretionary determination of whether to exercise that authority. See Boehl, 726 N.W.2d at 842.
Reversed and remanded.
 Respondent also argues that the “law of the case” doctrine precluded the district court from impaneling a sentencing jury to consider the aggravating factors because this court’s decision in Lenear III allegedly provided the district court with only two options: (1) to grant a new trial on all issues, including respondent’s guilt, should respondent file a motion for a new trial on all issues, or (2) to impose the presumptive sentence. But this court’s decision should not be read in such a narrow fashion. The order did not direct the district court to proceed in any particular fashion except generally in a manner “not inconsistent with” the order. In addition, even if this court did offer the district court only two alternatives with regard to how it should proceed on remand, subsequent decisions such as Chauvin, Boehl, and Hankerson, clearly hold that district courts have the inherent judicial authority to impanel a sentencing jury on remand.