This opinion will be unpublished and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
Terrell A. Berry,
Filed September 4, 2007
Hennepin County District Court
File No. 03061085
Lori Swanson, Attorney General,
Michael O. Freeman,
John M. Stuart, State Public
Defender, Benjamin Butler, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his sentences for two first-degree-burglary convictions. Appellant argues that (1) the district court lacked authority to empanel a sentencing jury and (2) there were no severe aggravating factors justifying a greater-than-double durational departure from the sentencing guidelines’ presumptive sentence. Because the district court properly applied the law and did not abuse its discretion, we affirm.
On March 21, 2003, appellant Terrell A. Berry gained entry into the apartment of the victim—an 81-year-old man—by posing as a female employee of the apartment complex where the victim lived. The victim was blind, hearing-impaired, and communicated through a specially-equipped television monitor. Appellant used the monitor to ask the victim for money; the victim gave him two dollars. Appellant also entered the victim’s bedroom and stole an additional $420.
On July 17, 2003, appellant entered the victim’s apartment again, this time gaining entry by posing as a package deliverer. Appellant stole the victim’s checks, which he fraudulently cashed for approximately $1,056.
Appellant argues that the district
court did not have the authority to empanel a sentencing jury because the 2005
amendments to the sentencing guidelines authorizing sentencing juries only
apply to convictions entered after the 2005 effective date. This court reviews legal issues de novo. State
v. Chauvin, 723 N.W.2d 20, 23 (
Appellant also argues that the
retroactive application of section 244.10 is unconstitutional because it
violates the ex post facto clause of the
next argues that his sentence should be reversed because section 609.1095, the
dangerous-offender statute, was unconstitutional at the time of his sentencing
because it permitted judicial fact-finding.
But the supreme court rejected this argument in State v. Boehl, 726 N.W.2d 831 (
Appellant next argues that a re-sentencing hearing, which permits a jury to find aggravating factors, violates the Double Jeopardy Clause. This court “reviews de novo the constitutional issue of double jeopardy.” State v. Large, 607 N.W.2d 774, 778 (Minn. 2000).
Appellant contends that a re-sentencing hearing to determine aggravating factors is equivalent to a re-prosecution for the greater offense of burglary with aggravating factors. Again, we find appellant’s argument meritless. In Hankerson, the supreme court rejected this argument, stating that “the use of a sentencing jury to consider aggravating factors in [a] resentencing hearing does not violate the Double Jeopardy Clause.” 723 N.W.2d at 240–41.
Appellant also argues that his
sentence unconstitutionally violates his Sixth Amendment right to a jury trial. This court reviews sentencing challenges
based on legal issues de novo. State v. DeRosier, 719 N.W.2d 900, 903 (
In Blakely v. Washington, the Supreme Court held that a sentence
violates a defendant’s Sixth Amendment right to a jury trial when it exceeds
the statutory maximum and is based on judicially determined facts that the
defendant did not admit or the jury did not find beyond a reasonable
accordance with Blakely, “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt.” State v. Shattuck, 704 N.W.2d 131, 135 (
However, a district court has
discretion to upwardly depart from the guidelines’ presumptive sentence if
aggravating factors are present.
Appellant argues that because “a finding of severe aggravating factors is essential to the imposition of a greater-than-double departure” under Blakely, the state must prove severity to a jury beyond a reasonable doubt. Appellant relies on State v. DeRosier for the proposition that “the Sixth and Fourteenth Amendments guarantee . . . a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.” 719 N.W.2d at 903 (quotation omitted). According to appellant, the severity of aggravating factors is a “disputed fact.”
DeRosier, a jury convicted the
defendant of criminal sexual conduct in the first degree for sexual encounters
with the victim that occurred over the months of June, July, and August of
2000. Id. at 901. The jury did
not, however, determine the specific date or dates of the offenses. Id. On August 1, 2000, the presumptive sentence
for first-degree criminal sexual conduct changed from 86 months to 144 months
in prison. Using the presumptive
sentence applicable after August 1, 2000, the district court sentenced DeRosier
to 144 months in prison. Id.
In effect, the district court—rather than the jury—found that one of the
sexual encounters occurred in August 2000, which allowed the court to impose
the higher presumptive sentence. Id. at 903. The supreme court held that the district
court’s independent determination of the date of DeRosier’s offense is a Blakely violation.
reliance on DeRosier is misplaced,
primarily because of the procedural posture of this case. On remand from this court, the district court
empaneled a sentencing jury pursuant to Minn. Stat. § 244.10, subd. 5 (Supp.
2005). Appellant then waived his right
to a sentencing jury and agreed that the existence of aggravating factors could
be tried to the court. By virtue of this
waiver, we conclude that appellant also granted the district court the
authority to make the “severity” finding with respect to those aggravating
factors. See State v. Spain, 590 N.W.2d 85, 89 (
Appellant also argues that even if the district court had the authority to make the “severity” findings, it did not make those findings beyond a reasonable doubt. We disagree. Before making its findings regarding whether there were “severe aggravating factors” justifying an upward departure, the district court specifically stated on the record that it had “considered the burden of proof.” This clearly demonstrates that the district court found that respondent had proven the presence of severe aggravating factors beyond a reasonable doubt.
Appellant’s final assignment of error challenges the district court’s decision to upwardly depart from the presumptive sentence. Appellate courts review a district court’s departure from the guidelines’ presumptive sentence for an abuse of discretion. Shattuck, 704 N.W.2d at 140.
A district court has discretion to
upwardly depart from the guidelines’ presumptive sentence if the case “involves
substantial and compelling circumstances.”
appellant argues that the district court abused its discretion because appellant
did not use violence to perpetrate his crime.
Appellant offers no authority to support his contention that violence is
a necessary predicate for an upward departure on a burglary conviction. Generally, arguments not supported by
authority are waived. State v. Modern Recycling, Inc.,558 N.W.2d 770, 772 (
Finally, appellant argues that the district court abused its discretion because to base its decision to depart on re-victimization the district court impermissibly considered facts which supported one conviction as a basis for an upward departure for a different conviction. There is some merit to appellant’s position because re-victimization—while not an element of burglary—is a fact here that is only associated with the second burglary. But given the district court’s wide discretion in sentencing and the presence of the remaining aggravating factors, we conclude that the district court did not abuse its discretion by imposing a departure on both counts.