This opinion will be unpublished and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
Dale Dwayne Greer,
Filed June 5, 2007
Hennepin County District Court
File No. 04048286
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public
Defender, Leslie J. Rosenberg, Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
This appeal from a conviction and sentence for felon in possession of a firearm has been remanded in part by the supreme court for reconsideration of appellant Dale Greer’s sentence in light of State v. Chauvin, 723 N.W.2d 20, 29 (Minn. 2006), and State v. Kendell, 723 N.W.2d 597, 610 (Minn. 2006). Because we conclude that the district court had inherent authority to submit a factual sentencing question to the jury, we affirm.
The district court’s inherent authority to employ
a sentencing jury is a legal issue, which this court reviews de novo.
The state charged Greer with being a felon in possession of a firearm and two counts of terroristic threats. A jury found Greer guilty of being a felon in possession of a firearm but not guilty of the other two counts. The court then submitted to the jury a sentencing issue under the dangerous-offender statute: “Is [Greer] a danger to the public safety?”
The prosecutor introduced certified copies of Greer’s prior convictions, showing that Greer had committed theft from a person in 1984, first-degree assault in 1986, fifth-degree controlled substance offense in 1991, felon in possession in 1992, third-degree controlled substance offense in 1992, second-degree assault and terroristic threats in 1997, and fifth-degree controlled substance offense in 2002. The jury found that Greer was a danger to public safety. Based on this finding, the district court imposed a sentence of 120 months’ incarceration, a double upward departure under the dangerous-offender statute.
court affirmed the conviction but reversed and remanded the sentence in an
unpublished opinion, holding that, under Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and State v. Shattuck, 704 N.W.2d 131 (Minn.
2005), the district court did not have authority to submit to the jury the
question of whether Greer was a “danger to public safety.” State v. Greer, No. A05-552, 2006 WL
1704059, at *10 (Minn. App. June 20, 2006), review
granted and stayed (
The supreme court in Chauvin held that the district court has inherent judicial
authority to sentence a defendant in accord with Blakely by submitting a sentencing question to a jury. 723 N.W.2d at 29. In Kendell,
the supreme court applied this holding to a case in which the district court,
based on special interrogatories submitted to the jury, imposed a departure
under the dangerous-offender statute. State v. Kendall, 723 N.W.2d 597, 609-10 (
Greer concedes that under Chauvin and Kendell the district court had inherent authority to present the sentencing issue to a jury. But he challenges the trial court’s failure to define “danger to public safety,” the critical term in the dangerous-offender statute, for the jury. We will not address the merits of this challenge.
As the state points out, Greer did not
request further instructions by the district court to define “danger to public
safety.” This issue also was not raised
in his initial brief, nor is it part of the remand ordered by the supreme
court. An issue that is not briefed is
considered waived. State v. Meldrum, 724 N.W.2d 15, 22 (