This opinion will be unpublished and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

A05-2117

 

State of Minnesota,

Respondent,

 

vs.

 

Allen T. Enger,

Appellant.

 

Filed June 5, 2007

Affirmed

Ross, Judge

 

Hennepin County District Court

File No. 04080840

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

This appeal from a sentence imposed for second-degree arson has been remanded by the supreme court for reconsideration in light of that court’s decisions in State v. Chauvin, 723 N.W.2d 20, 29 (Minn. 2006), and State v. Kendell, 723 N.W.2d  597, 610 (Minn. 2006).  We conclude that the district court, under those decisions, had authority to impanel a sentencing jury to vindicate the Blakely right to a jury determination of facts regarding sentencing issues.  Appellant Allen Enger’s Blakely waiver was therefore valid, and we affirm.

F A C T S

The criminal complaint alleged that Allen Enger intentionally set fire to a residence in December 2004, causing about $100,000 in damage.  Enger pleaded guilty to second-degree arson based on a plea agreement in which he waived his Blakely right to a jury determination of facts that might support an upward departure.  The agreement provided that the prosecutor could argue for an upward departure.  The prosecutor explained that, under the agreement, the state would seek an upward departure based on the dangerous-offender statute, Minnesota Statutes section 609.1095, subdivision 2.

The district court sentenced Enger to 120 months in prison—the statutory maximum—after finding on the record and beyond a reasonable doubt that he met the criteria set forth in section 609.1095, subdivision 2: Enger was over 18, he was guilty of the charged offense, he had two or more prior convictions for violent crimes, and he is a danger to public safety based on his past criminal behavior.

This court 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 dangerous-offender statute is unconstitutional because it specifically authorizes an enhanced sentence based on a judicial finding that the offender is a “danger to public safety.”  State v. Enger, No. A05-2117, 2006 WL 2348474, at *2 (Minn. App. Aug. 15, 2006), review granted and stayed (Minn. Oct. 25, 2006).  The supreme court granted further review and has now vacated this court’s opinion and remanded for reconsideration in light of Chauvin and Kendell, which were decided after we rendered our opinion.

D E C I S I O N

I

Enger challenges his sentence by indirectly challenging the district court’s authority to impanel a sentencing jury.  The district court’s inherent authority to impanel a sentencing jury is a legal issue, which this court reviews de novo.  See State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  On remand the supreme court has presented a question involving the application of its Chauvin decision to this case, a matter that was not before the district court.

Enger argues that although his sentence was not based on any facts found by a jury, his waiver of his Blakely right to jury sentencing determinations was invalid because the district court lacked authority to impanel a sentencing jury.  In other words, he contends that he could not, as a matter of law, have waived a right that he could not have exercised by virtue of the district court’s lack of procedural authority to afford him the right.  The supreme court held in Chauvin that the district court had inherent judicial authority to impanel a jury to determine facts relevant to sentencing before the legislature had enacted provisions to implement Blakely.  723 N.W.2d at 27.  Enger insists, however, that both Chauvin and Kendell, which applied Chauvin to departures under the dangerous-offender statute, are distinguishable.  We disagree.

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.  Id. 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.  723 N.W.2d 597, 604 (Minn. 2006).

Enger first contends that the legislature has not “properly” amended the dangerous-offender statute to comply with Blakely, and therefore State v. Barker, 705 N.W.2d 768 (Minn. 2005), applies rather than Chauvin or KendellBarker is a pre-Chauvin, pre-Kendell opinion in which the supreme court held that Blakely requires a jury determination of the enhancement factor of use of a firearm before an upward departure may be imposed under Minnesota Statutes section 609.11, subdivision 5(a).  Barker, 705 N.W.2d at 773.  In discussing the appropriate remedy, the Barker court rejected the state’s argument that a sentencing jury could be impaneled under the 2005 statutory amendments, noting that the legislature did not amend section 609.11 to comply with Blakely.  Id. at 776.  The issue of inherent authority to impanel a sentencing jury was not raised, and it had not yet been decided in Chauvin.  Barker therefore is not relevant in this case, and it is, on its face, materially different, because the legislature in 2005 did amend the dangerous-offender statute to comply with BlakelySee 2005 Minn. Laws ch. 136, art. 16, § 11, at 1118.

Enger’s argument that the legislature did not “properly” amend the dangerous-offender statute in 2005 has no bearing on his sentence.  It is undisputed that the 2005 amendments would not apply to Enger’s offense in any event.  See id. (making amendments applicable to crimes committed on or after August 1, 2005).  The validity of Enger’s waiver of his Blakely right to a jury determination depends on the inherent judicial authority discussed in Chauvin, not on statutory authority to impanel a sentencing jury.  We therefore need not address the 2005 amendments to the dangerous-offender statute.

Enger also argues that Chauvin’s holding is limited to situations in which the defendant was on notice that the departure was permissible.  Chauvin addressed the inherent-authority question as it existed before the legislature passed the 2005 amendments.  See Chauvin, 723 N.W.2d at 23 (“At the time of Chauvin’s trial and sentencing hearing, the legislature had not yet enacted legislation to specifically authorize the use of juries on sentencing”).  Enger notes that when he was sentenced the legislature had passed the 2005 amendments, although they were not applicable to his offense.  But this court has held that the inherent authority recognized in Chauvin existed even after the 2005 amendments were passed if those amendments did not apply to a particular defendant’s offense.  State v. Boehl, 726 N.W.2d 831, 841-42 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007).  And that is the same situation in which the district court found itself in sentencing Enger in July 2005.  It therefore had inherent judicial authority to impanel a sentencing jury under Chauvin, and it could have exercised that authority if Enger had not waived his right to a jury.

Enger urges a distinction, highlighting that when the defendant in Chauvin committed his offense, “he was on notice that enhanced sentencing was permissible under Minnesota’s pre-Blakely sentencing scheme,” and no ex post facto issue was raised.  The distinction is unpersuasive.  It is true that the defendant in Chauvin committed his offense in March 2004, before the release of Blakely, and that Enger committed his offense in December 2004, afterthe release of Blakely.  But Enger cites no caselaw or other authority holding that a defendant must be on notice as to the current state of sentencing law at the time he commits his offense.  Even at the time of charging, due process requires only that the defendant be informed of the elements and “essential facts” necessary to constitute the offense charged against him.  See State v. Serstock, 402 N.W.2d 514, 518 (Minn. 1987).  And “an indictment need not specify the sentencing statute that will govern a defendant’s sentence in order to satisfy due process.”  Kendell, 723 N.W.2d at 611.  Enger also cites no legal authority holding that due process requires that he be informed of the permissibility of sentencing departures at the time he commits the offense.

The notion that jury sentencing factfinding here would have violated the Ex Post Facto Clause is without merit.  By its terms, the Ex Post Facto Clause applies to legislation, not to court decisions.  See U.S. Const. art. I, § 10 (“[n]o State shall . . . pass any . . . ex post facto Law.”).  The state made no claim, either at sentencing or on appeal, that the 2005 amendments apply to Enger’s sentence.  As noted, the district court had authority to submit sentencing questions to a jury as recognized in Chauvin.  The Ex Post Facto Clause does not apply to that judicial decision, which is presumed to have retroactive effect.  See Baker v. State, 590 N.W.2d 636, 640 (Minn. 1999) (“Generally, court rulings are given retroactive effect.”).

II

Finally, Enger argues that his 120-month imprisonment sentence, the statutory maximum, is disproportionate to the seriousness of his offense.  The state counters that Enger has waived this argument by pleading guilty and by receiving “the deal that he bargained for.”  But the plea agreement did not provide for a 120-month sentence; it provided only that the state would argue for an upward departure under the dangerous-offender statute and that it would likely argue for the 120-month statutory maximum.  Enger did not waive his present proportionality argument by pleading guilty.  Enger also briefed the issue of disproportionate sentencing in his original brief in this appeal.

And although the supreme court remanded this appeal for reconsideration in light of Chauvin and Kendell, neither of which discusses disproportional sentencing, Enger’s unwaived argument that his statutory-maximum sentence was disproportionate to the severity of his conduct has never been addressed.  While it is not expressly within the terms of the remand, it is not implicitly excluded by the remand either.  Cf. State v. Greer, 662 N.W.2d 121, 125 (Minn. 2003) (stating that “when a case returns to an appellate court after remand” to the district court “any claims that were known but not raised in the original appeal” will not be considered).  We choose to address Enger’s argument on the merits.

The complaint alleged that Enger set fire to a vacant residence a block away from his house, after he had been drinking beer.  The state’s sentencing memorandum noted that Enger “has been convicted of four acts of felony arson, and a robbery,” and it argued that he was “an uncontrollable, serial arsonist and repeat offender.”  The upward departure was imposed based on this history, as is authorized by the dangerous-offender statute, and not because the present offense was of a particularly aggravated nature.

The supreme court has cautioned courts concerning upward departures under the dangerous-offender statute, stating:

While we conclude that the dangerous-offender statute authorizes upward departures without a finding of severe aggravating circumstances, we stress that the statute does not envision the imposition of the statutory maximum in every case.

 

Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003).  The court explained that the statute authorizes sentences that rely on the offender’s criminal history and that, therefore, “may be disproportionate to the severity of the convicted offense.”  Id.  The court noted that because the statute relies on criminal history, after that history has already been considered in determining the presumptive sentence, a greater-than-double departure under the statute “may artificially exaggerate the defendant’s criminality because the defendant’s criminal record is considered twice.”  Id.

According to the state’s sentencing memorandum, Enger had prior convictions for three arson offenses (1981, 1985, and 2000), as well as a 1984 conviction for simple robbery, along with various non-felony convictions for fifth-degree assault, driving while intoxicated, obstructing legal process, and disorderly conduct.  This history includes four prior convictions for “violent crimes,” or two more than the two prior convictions required by the statute.  See Minn. Stat. § 609.1095, subd. 3 (2004).

This court has held that a defendant’s long involvement in crime, or a nearly continuous history of some form of custody due to criminal offenses, will support departures under the dangerous-offender statute.  State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995) (affirming departure to statutory maximum for attempted kidnapping and other offenses committed by a 39-year-old defendant who had three prior violent-crime convictions over an 18-year period of criminal activity), review denied (Minn. Apr. 18, 1995); State v. Kimmons, 502 N.W.2d 391, 396-97 (Minn. App. 1995) (affirming upward departure for defendant who had a record of eight prior felonies), review denied (Minn. Aug. 16, 1993).  Branson and Kimmons pre-date Neal, and therefore do not reflect the caution expressed in Neal regarding upward departures under the dangerous-offender statute.  But we conclude that the record supports the upward departure in this case.

Enger committed three prior arsons, and one of them was the first-degree arson of an occupied building.  He also has a prior simple-robbery conviction.  These offenses occurred over an extended period from 1981 to the current offense in 2004.  This court reviews a finding that a defendant is a danger to public safety only to determine whether the finding is supported by the record.  Branson, 529 N.W.2d at 4.  Enger’s criminal behavior supports the finding.  Because he has four “violent crimes,” which is twice the minimum required, and because they occurred over a 23-year period, the 120-month sentence is not disproportional to the seriousness of his conduct.

Affirmed.