This opinion will be unpublished and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
Allen T. Enger,
Filed June 5, 2007
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,
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
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remanded the sentence in an unpublished opinion, holding that, under Blakely v. Washington, 542
D E C I S I O N
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.
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.
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 (
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 (
Enger urges a distinction, highlighting that
when the defendant in Chauvin
committed his offense, “he was on notice that enhanced sentencing was
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.
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.
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 (
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 (
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
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 (
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.