This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-552

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Dwayne Greer,

Appellant.

 

 

Filed June 20, 2006

Affirmed in part, reversed in part, and remanded

Kevin G. Ross, Judge

 

Hennepin County District Court

File No. 04048286

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Dale D. Greer, OID 113819, MCF-Rush City, 7600 525^th Street, Rush City, MN 55069 (pro se appellant)

 

 

            Considered and decided by Toussaint, Chief Judge Presiding, Ross, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

ROSS, Judge

 

Appellant Dale Dwayne Greer challenges his conviction and sentence for being a felon in possession of a firearm, arguing that the district court (1) erred by denying his motion to dismiss for violation of his right to a speedy trial; (2) abused its discretion by ruling that, should he testify, the state would be allowed to introduce evidence of prior convictions to impeach his testimony; and (3) violated his constitutional rights by empanelling a sentencing jury to make additional findings justifying an upward durational sentencing departure.  He also argues that he is entitled to a new trial because he received ineffective assistance of counsel.  Because the district court lacked inherent authority to convene a sentencing jury, we reverse the sentence and remand to the district court for imposition of the presumptive guidelines sentence.  We affirm as to all other issues. 

 

FACTS

 

The state charged Dale Greer on July 28, 2004, with one count of felony prohibited person in possession of a firearm, in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2(b), 609.11 (2002), and two counts of felony terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002).  The complaint alleges that on July 26, 2004, Minneapolis police responded to a residence after a report of a domestic disturbance involving a gun.  Police arrived and spoke with Greer.  They also spoke with Greer’s ex-wife, Carolyn Greer, her daughter, Danyel Anderson, and Anderson’s cousin, Tekhola Trapps.  They told the officers that Greer had threatened Carolyn and Danyel with a small handgun in the course of an argument.  Officers arrested Greer.  They searched the house and discovered a loaded .22 caliber pistol on top of the refrigerator.

Greer appeared in court on July 29, 2004, in connection with an August 2003 charge of fleeing a police officer in a motor vehicle.  At that hearing, defense counsel and the court discussed Greer’s previous request for a speedy trial in the fleeing matter, but they did not discuss the July 2004 charges except to agree that Greer’s counsel would represent him in both matters.

Greer pleaded not guilty to the July 2004 charges on August 10, 2004, and requested a speedy trial.  The court set the trial for October 4, but defense counsel’s scheduling conflict forced a delay.  The parties appeared in court on October 14, when the prosecutor announced that, according to his notes, the matter currently set for trial was the August 2003 fleeing charge, not the July 2004 charges.  He explained that the state was not prepared to try the July 2004 charges.  Defense counsel re-asserted the demand for a speedy trial, but declared his immediate unavailability because of a prescheduled vacation.  The district court therefore continued the trial to November 9, 2004.

On the first day of trial, Greer moved to dismiss the charges on the ground that his constitutional right to a speedy trial had been violated.  The district court denied the motion.  It also ruled that the state would be allowed to introduce evidence of six prior convictions for impeachment purposes if Greer decided to testify.

Neither Greer nor his ex-wife, Carolyn, testified at trial.  Danyel Anderson testified that Greer had threatened her and her mother with the same gun that police found on the refrigerator.  In contrast, Danyel’s cousin, Tekhola Trapps, testified that the gun admitted into evidence was not the gun she had seen Greer holding on July 26.  A Minneapolis Police Department forensic scientist testified that the gun had no identifiable fingerprints.

The jury found Greer guilty of being a felon in possession of a firearm but not guilty of the terroristic-threats charges.  The district court then asked the jury to decide an additional question: “Is [Greer] a danger to the public safety?”  The court instructed the jury concerning the presumption of innocence and the state’s burden of proof, and it accepted into evidence certified copies of eight of Greer’s prior convictions.  The jury found that Greer was a danger to public safety.

The district court sentenced Greer to 120 months’ imprisonment, twice the presumptive sentence, based on the jury’s additional finding of danger.  See Minn. Stat. § 609.1095, subd. 2 (2002) (authorizing the district court to depart from the presumptive guidelines sentence if the defendant has two or more prior felonies and if the “court finds that the offender is a danger to public safety and specifies on the record the basis for the finding”).  This appeal followed.

 

D E C I S I O N

 

I

 

Greer argues that the 91-day delay between his speedy-trial request on August 10 and the start of trial on November 9, 2004, violated his right to a speedy trial.  Under the federal and state constitutions, criminal defendants are entitled to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6.  Whether a defendant’s constitutional right to a speedy trial was violated is a question of law, which we review de novo.  State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004), review denied (Minn. July 20, 2004).

The controlling procedural rule provides that a defendant shall be tried within 60 days from the date of a demand for a speedy trial unless good cause is shown by the prosecutor or the defendant why he should not be brought to trial within that period.  Minn. R. Crim. P. 6.06.  A delay that exceeds 60 days is “presumptively prejudicial” and requires the court to determine whether it rests on good cause.  State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989).  To determine whether a delay offends the right to a speedy trial, we consider: “(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant.”  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  “None of the factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial.  Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”  Id. (quotation omitted).  Greer asserted his right to a speedy trial, and the 91-day delay between that assertion and the first day of trial was presumptively prejudicial.  This requires further inquiry to determine whether there was good cause for the delay.  Friberg, 435 N.W.2d at 512.  The record demonstrates that there was.

When a delay results from circumstances over which the prosecutor has no control, “it weighs less heavily against the state than would deliberate attempts to delay trial.”  Friberg, 435 N.W.2d at 513.  The supreme court has pointed out that such circumstances have proven to be “good cause for delays up to fourteen months where the defendants suffered no unfair prejudice.”  Id. at 513-14 (listing cases).  Of the various reasons for the 91-day delay here, only one—the state’s mistaken belief that the August 2003 charge would be tried before the July 2004 charge—is attributable to the prosecutor.  The record does not suggest that the prosecutor deliberately attempted to delay the trial.  The reasons for the delay do not weigh in favor of a determination that the delay violated Greer’s right to a speedy trial.  That takes us to the most important factor.

We are even less persuaded by the “most  serious” consideration—whether the delay impaired the defense.  Windish, 590 N.W.2d at 318.  Greer’s trial counsel acknowledged that “we don’t have prejudice [because of the delay] in the sense that we are somehow handicapped in our ability to fight this charge, quite candidly.”  Nothing in the record casts doubt on that assessment.  Because the minimal delay here did not arise from the prosecutor’s conduct and did not prejudice Greer’s defense, the district court did not err by denying Greer’s motion to dismiss.

II

Greer argues that the district court abused its discretion by ruling that should he choose to testify, the state could introduce evidence of six prior convictions for impeachment purposes.  We review a district court’s ruling on admission of prior-conviction evidence for an abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). “[T]he appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Evidence of a prior conviction may be admitted to impeach the defendant’s testimony if the offense is less than ten years old, punishable by imprisonment for more than one year, and the district court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a)(1), (b).  To determine whether the probative value of the evidence outweighs its prejudicial effect, the district court should consider

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue. 

 

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

We will consider admission of Greer’s convictions under these factors.  At issue are six convictions between 1985 and 1997:  (1) theft from person, May 1985; (2) first-degree assault, October 1986; (3) felon in possession of a firearm, April 1993; (4) third-degree possession of controlled substance, June 1993; (5) second-degree assault, August 1997; and (6) terroristic threats, August 1997.  The conduct of the conviction now being appealed occurred on July 26, 2004.

A.        The impeachment value of the prior crimes

Greer’s prior convictions involved theft, assault, terroristic threats, felon in possession of a firearm, and possession of a controlled substance.  While only crimes of dishonesty are presumptively admissible for impeachment purposes, other crimes may also be admitted.  Minn. R. Evid. 609(a); State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (observing that “the fact that a prior conviction did not directly involve truth or falsity does not mean it has no impeachment value”).  Greer, without elaborating, contends that his prior convictions “lack impeachment value” and “show only the impermissible factor of a tendency to commit crimes.”  But the supreme court has repeatedly held that “a prior conviction can have impeachment value by helping the jury see the ‘whole person’ of the defendant and better evaluate his or her truthfulness.”  State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006) (quoting Gassler, 505 N.W.2d at 66-67).  Greer’s 1985 theft conviction—the oldest conviction here—is the only one directly relevant to his credibility.  The district court observed that the impeachment value of the other convictions would primarily serve to help the jury see Greer as a whole person and to evaluate his truthfulness.  We conclude that the impeachment value of the convictions does not weigh strongly in favor of or against admission.

B.        Date of conviction and subsequent history

We consider the timing of the convictions because, generally, “[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witnesses from the confinement imposed for that conviction, whichever is the later date.”  Minn. R. Evid. 609(b).  But convictions more than ten years old may be admissible if “the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”  Id.  Based on the timing of Greer’s convictions and release dates, only two of the convictions are stale under rule 609(b): the 1985 theft charge and the 1986 assault charge.

We consider the date of the conviction and the defendant’s subsequent history “to determine whether the prior offense has lost its relevance over the passage of time.”  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  Here, the district court determined that “special considerations” justified admission of the older convictions, observing that

[t]he [1985] offense was very shortly followed by one in 1986 that resulted in a prison commit, and very shortly after release from prison on that matter, a third offense in 1991 occurred [which the state did not seek to admit for impeachment purposes], which also resulted in a prison commit bringing us up to 1993.

 

Although Greer argues that “a stale conviction cannot be imbued with probative value where the only value found by the court is that the frequency and duration tend to show a propensity to commit crimes,” the supreme court has held that the probative value of an otherwise stale conviction may be enhanced by a “history of lawlessness and convictions.”  Ihnot, 575 N.W.2d at 586.  Greer’s history of lawlessness and convictions enhances the probative value of his older theft conviction.  We conclude that this factor tends slightly to favor admission of the prior convictions.

C.        Similarity of past and charged crimes

Greer’s prior crimes vary in similarity to the crime underlying his presently appealed conviction.  The supreme court has held that “the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.”  Jones, 271 N.W.2d at 538.  “[I]f the prior conviction is similar to the charged crime, there is a heightened danger that the jury will use the evidence not only for impeachment purposes, but also substantively.”  Gassler, 505 N.W.2d at 67.

The present appeal arises from conduct that prompted charges of terroristic threats and felon in possession of a firearm.  Greer’s history includes one conviction for terroristic threats and one for felon in possession.  The state maintains that because the jury did not convict Greer on the two 2004 terroristic-threats charges, their existence is “legally irrelevant” to the district court’s ruling on the admissibility of the impeachment evidence.  We need not address that argument because we believe the similarity of both the prior terroristic-threats and the felon-in-possession convictions to the current conviction of felon in possession weighs against their admission to impeach.

But had Greer chosen to testify, “a cautionary instruction would presumably have been given which directs the jury to consider the prior conviction[s] only as [they] relate to [Greer’s] credibility.”  State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979).  The district court, acknowledging the similarity of the two prior offenses, concluded that they were nonetheless probative because they would help the jury to see Greer as a “whole person.”  On balance, this factor does not clearly favor either excluding or admitting the prior terroristic-threats and felon-in-possession convictions.

D.        Importance of Greer’s testimony and centrality of credibility

We next consider the importance of a defendant’s testimony in light of how the district court’s decision to admit evidence of prior convictions will likely affect whether the defendant will choose to give that testimony.  The supreme court has applied this factor by considering that a defendant’s “version of the facts may be centrally important to the result reached by the jury.  If so, this fact would support exclusion of the impeachment evidence if by admitting it, [the defendant’s] account of events would not be heard by the jury.”  Gassler, 505 N.W.2d at 67.  But the Gassler court also reasoned that when

it is clear from the record that appellant’s version was presented to the jury via the testimony of other witnesses [and when] no offer of proof was made as to any additional testimony appellant would have added if he had taken the stand[, b]oth these factors support the trial court’s decision to admit the evidence for impeachment.

 

Id.  Here, defense counsel cross-examined the state’s witness and presented Greer’s version of events in closing argument.  Greer did not make an offer of proof as to the substance of his testimony.  This presents a situation similar to the one this court considered in State v. Heidelberger, 353 N.W.2d 582 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). In Heidelberger, the defendant’s theory of victim fabrication was presented to the jury through the cross-examination of the victim, and there was no offer of proof that the defendant had any testimony to present concerning the alleged fabrication.  Id. at 590.  As in Heidelberger, the record here demonstrates that through cross-examination and argument, Greer was able to present his version to the jury.

If a defendant’s credibility is the central issue, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.”  Ihnot, 575 N.W.2d at 587 (quotation omitted).  Greer maintains that his credibility was not a central issue.  But the primary evidence presented at trial that Greer threatened his ex-wife and her daughter with a gun was the daughter’s testimony; her cousin countered that the gun was not the weapon involved in the July 2004 dispute.  Had Greer testified, the jury’s determination of witness credibility would have been critical, calling for the state to impeach his testimony.  See Heidelberger, 353 N.W.2d at 590-91 (observing that because “the jury would have had to decide whether to believe [Heidelberger’s] testimony or [another witness’s,] . . . there was a strong need for evidence of the prior convictions for impeachment purposes”).  As the district court observed, if Greer testified, “[h]e would be the only one testifying as to his version of the facts, which would then make credibility a central issue in the case.” 

The district court noted that of the Jones factors, only the last—the centrality of Greer’s credibility—clearly favors admitting evidence of the six prior convictions.  But the district court recognized that the credibility factor outweighs the others in importance, particularly because the others do not clearly favor admission or exclusion.  We agree, and we conclude that the district court did not abuse its discretion by ruling that should Greer choose to testify, the state could introduce evidence of his six prior convictions to impeach his testimony.

III

Greer argues that the district court had neither inherent nor statutory authority to bifurcate the proceedings after the verdict and to ask the jury to make a separate factual determination as to whether he is a “danger to public safety,” for the purpose of deciding the propriety of an enhanced sentence under Minn. Stat. § 609.1095, subd. 2 (2002).  Greer acknowledges that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), requires that a jury determine aggravating sentencing factors as a matter of constitutional principle, but he contends that the district court’s sentencing-jury proceeding requires reversal because it was not authorized by any rule or statute.

The district court imposed an enhanced sentence under Minn. Stat. § 609.1095, subd. 2, which provides:

Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:

(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and

(2) the court finds that the offender is a danger to public safety.

 

Greer’s challenge does not require us to directly apply Blakely, but understanding Blakely’seffect will frame the question before us.  In Blakely, the United States Supreme Court held that a defendant’s Sixth Amendment right to a jury trial is violated when an upward durational departure increases a presumptive sentence based on findings of fact not made by a jury.  542 U.S. at 303-05, 124 S. Ct. at 2537-38; State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005) (holding that a departure from the presumptive sentence may not be imposed when “the court finds facts beyond the elements of the offense [or when] the verdict or guilty plea alone does not authorize the enhanced sentence”).  In State v. Henderson, the Minnesota Supreme Court held that under Blakely, the imposition of an enhanced sentence under Minn. Stat. § 609.1095, subd. 4, based on the district court’s finding of a pattern of criminal conduct violated appellant’s Sixth Amendment right to trial by jury.  706 N.W.2d 758, 762 (Minn. 2005).[1]

Responding to this constitutional problem, the legislature amended Minn. Stat. § 609.1095, subd. 2, in 2005 to include new requirements for sentencing departures, and Minn. Stat. § 244.10, subd. 5, to specifically authorize sentencing juries and bifurcated trials.  See 2005 Minn. Laws, ch. 136, art. 16, §§2, 11, at 1115, 1118.  The amended dangerous-offender statute allows a district court judge to enhance a defendant’s sentence if “the factfinder”—as opposed to “the court”—determines that the defendant is a danger to public safety.  Minn. Stat. § 609.1095, subd. 2(2) (2005).  But because the legislature specifically limits the amended statute’s application to “crimes committed on or after [August 1, 2005],” the amendment is not applicable to Greer’s July 2004 offense.  2005 Minn. Laws ch. 136, art. 16, § 11, at 1118.

Before Blakely (which has no retroactive effect, see State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005)), a district court sentencing a defendant in Greer’s situation would have made its own enhancement determination.  And after the 2005 amendments to section 609.1095 (which also has no retroactive effect, see 2005 Minn. Laws, ch. 136, art. 16, § 11, at 1118), a district court sentencing a defendant in Greer’s situation would make the enhancement determination upon a jury’s finding in a bifurcated proceeding, just as the district court did in this case.  The date of Greer’s offensive conduct and sentence, however, puts the district court’s sentencing determination between the Blakely problem and the legislative solution.  Put another way, the district court found itself somewhere between Scylla and Charybdis, having to choose between offending Greer’s rights under Blakely or giving Greer what amounts to arbitrary immunity from a sentencing enhancement, occasioned only by dumb luck in the timing of his criminal conduct.  The district court reasonably chose to navigate between these two obvious hazards; it honored Blakely’s constitutional requirement that Greer’s sentence enhancement be determined by a jury, even though no Minnesota rule or statute authorized a jury determination of a factual issue relating solely to sentencing.  It is in this context that Greer challenges his sentence.  The issue before us, then, is whether the district court, in attempting to protect Greer’s recently announced constitutional right, had the inherent authority to bridge the divide between Blakely’s limitation on the district court determining facts in an enhancement and the extant statutory requirement that “the court” determine an enhancement.

Recent supreme court jurisprudence that developed after Greer’s sentencing leads us to conclude that it did not.  In State v. Shattuck, the supreme court announced that it “has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process” to remedy Blakely violations.  704 N.W.2d at 147.  The Shattuck court concluded that it would nonetheless “proceed cautiously in exercising that authority in order to respect the equally unique authority of the executive and legislative branches of government over their constitutionally authorized functions.”  Id. at 147-48.  The court then deferred to the legislature:

While this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentencing in Minnesota, we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.  It is the legislature that created the Sentencing Guidelines system and retains authority over its development.  For us to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines and sentencing statutes would require rewriting them, something our severance jurisprudence does not permit.

 

Id. at 148.

Shattuck’s cautious restraint concerning the exercise of inherent judicial authority over sentencing might be read either narrowly or expansively.  Reading narrowly, one might conclude that although Shattuck precludes requiring a district court to submit a sentencing question to a jury in a bifurcated trial, it does not necessarily prohibit a district court from doing so.  This is the position recently taken by this court in State v. Lushenko, which concludes that Shattuck’s reluctance to engraft mandatory sentencing-jury requirements onto the guidelines does not restrict—or compromise—the district court’s inherent authority to craft sentencing procedures following Blakely.  ____ N.W. 2d ____, ____ 2006 WL 1460585, at *5 (Minn. App. May 30, 2006).  Or, reading expansively, as this court did recently in State v. Hobbs, one might conclude that despite its acknowledgement of the inherent judicial authority to craft sentencing procedures, Shattuck neither requires nor permits courts to exercise that authority in order to satisfy a defendant’s Blakely rights.  ____ N.W. 2d ____, ____ 2006 WL 1320019, at *5 (Minn. App. May 16, 2006).  Although there are plausible arguments for both readings (as indicated by this court’s divergent positions), we believe that the expansive reading finds stronger support both in Shattuck itself and in subsequent controlling case law holding that Shattuck should not be read to authorize district courts to act on their inherent authority to improvise procedures to vindicate defendants’ Blakely rights.

The Shattuck court was reluctant to act on its inherent authority and to craft a remedy.  704 N.W.2d at 148.  Instead, it deferred and urged the legislature to correct the statutory scheme to comport with Blakely.  Id.  This reluctance and deference argues against the district court’s exercise of its inherent authority.

Other developments also discourage such an exercise.  Shortly after the release of Shattuck, a panel of this court issued an unpublished opinion holding that a district court does not exceed its authority by submitting an aggravating sentencing factor to the jury in a bifurcated trial after the jury has rendered its verdict on the issue of guilt.  State v. Chauvin, No. A05-726, 2005 WL 2979382, at *5 (Minn. App. Nov. 8, 2005), review granted (Minn. Jan. 17, 2006).  Chauvin had argued that the sentencing-jury proceeding initiated by the trial court was extra-legal in that it was not authorized in practice by any rule or statute.  Id. at *2.  A panel of this court rejected that argument, relying on the language in Shattuck that recognized the district court’s authority to establish procedures in conformance with Blakely and noting, “It would be curious indeed if a court, responding to a constitutional holding mandating a particular procedure, particularly one as familiar as a jury determination of a factual issue, could not implement that procedure until the legislature or a rules committee had cleared the way.”  Id. at *3-4.

Curious or not, in State v. Barker the supreme court concluded that the district court lacks authority to empanel a sentencing jury in the absence of explicit legislative authority to do so.  705 N.W.2d 768, 776 (Minn. 2005).  The Barker court held that the imposition of the mandatory-minimum sentence based on a judicial finding that the defendant used or possessed a firearm during the commission of a drug offense violates the defendant’s right to a jury trial under Blakely.  Id. at 773.  More important to our analysis here, the supreme court rejected the state’s suggestion to “remand to the district court for resentencing, with directions that the district court empanel a jury to determine the [statutory enhanced-] sentencing factors.”  Id. at 775.  Instead, the court remanded for imposition of a sentence within the presumptive range, clarifying, “In Shattuck, we rejected the suggestion that the district court should use its inherent power to empanel a resentencing jury.”  Id. at 775-76.  The court determined that there was no legislative authorization to empanel a sentencing jury for the purpose of imposing an upward departure from the presumptive sentence pursuant to section 609.11, and, therefore, the district court could not empanel a jury to determine the departure factors.  Id. at 776.

We recognize that the district court’s submission of the sentencing factor to the convicting jury arguably might be distinguished from the empanelling of a sentencing jury to determine the sentencing factor.  Indeed, the Chauvin court partly relied on that distinction and described submitting the sentencing factor to the convicting jury as tantamount to submitting special interrogatories on sentencing issues to an existing jury—a practice the Chauvin court considered to be within the district court’s authority.  Chauvin, 2005 WL 2979382, at *3-4 (citing cases).  But while Barker considered empanelling a jury on remand and the district court here simply submitted the question of whether Greer is a danger to public safety to the already-empanelled jury that had determined his guilt, the reasoning in Barker is expressly applicable to judicially crafted bifurcated sentencing procedures as well.  See Barker, 705 N.W.2d at 775-76 (quoting Shattuck’s “requirement” restriction on either process, “sentencing-jury or bifurcated trial”).  And in Hobbs, we followed Shattuck to preclude a district court from submitting sentencing factors to the convicting jury.  ____ N.W.2d at ____, 2006 WL 1320019, at *5.  Although “[t]he 2005 legislative amendments do not authoritatively determine whether the courts had authority before their enactment to submit sentencing questions to a jury,” Chauvin, 2005 WL 2979382, at *4, Barker holds that they did not.  Barker, 705 N.W.2d at 776.

Barker’s analysis of the court’s inherent authority also demonstrates that this issue does not hang on whether the district court merely has the authority to regulate—and improvise—court sentencing procedures, but on whether the district court may, as a practical matter, exercise that authority to remedy the facial infirmity identified by Blakely.  Applying Barker, district courts seeking to impose enhanced sentences under Minn. Stat. § 609.1095, subd. 2 in the period between Blakely and the 2005 legislative enactments are prohibited from exercising this inherent authority.  Although the Shattuck and Barker acknowledgement of the existence of inherent judicial authority and their simultaneous reservation of the exercise of that authority suggest that the surrender to the legislature was discretionary rather than mandatory, we are bound to follow the supreme court’s guidance.  Consequently, we conclude that the district court erred by imposing an enhanced sentence under Minn. Stat. § 609.1095, subd. 2, and by resting that departure on the additional question submitted to the jury in the sentencing phase.  Despite the district court’s careful attempt to avoid a constitutional error on the one hand and an inappropriately light sentence on the other, we must reverse the enhanced sentence and remand for a sentence within the presumptive range.

IV

In his pro se supplemental brief, Greer argues that he received ineffective assistance of counsel because his attorney (1) refused to call Carolyn Greer, Greer’s ex-wife, as a witness, and (2) refused to investigate statements made by Danyel Anderson to defense counsel before trial recanting her July 26, 2004 assertion to the police that Greer had threatened her with a handgun.

We observe that the preferred method for raising an ineffective-assistance-of-counsel claim is through a petition for postconviction relief.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  But when the claim can be resolved on the basis of the trial record and the appellate briefs, it is properly brought on direct appeal.  Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004) (holding that “[a] claim of ineffective assistance of trial counsel that can be decided on the basis of the trial court record must be brought on direct appeal”).  At trial, defense counsel here discussed and explained his decision not to call Carolyn Greer.  And at an October 14, 2004 pre-trial hearing, defense counsel explained his refusal to investigate Danyel Anderson’s alleged attempt to recant her earlier statement.  We therefore conclude that no additional evidence is necessary to resolve Greer’s ineffective-assistance claim, which is wholly concerned with his counsel’s trial strategy.  We will therefore consider the claim on this direct appeal.

A claim of ineffective assistance of counsel raises a constitutional issue, which appellate courts review de novo.  State v. Blom, 682 N.W.2d 578, 623 (Minn. 2004).  To succeed on this claim, Greer must affirmatively prove that: (1) “his counsel’s representation ‘fell below an objective standard of reasonableness’” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)).  A disagreement over trial strategy does not constitute ineffective assistance of counsel.  State v. Gobely, 366 N.W.2d 600, 603 (Minn. 1985).  Determining which witnesses to call at trial is a tactical decision that appellant courts should not scrutinize.  See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (noting that trial counsel has discretion to decide scope of evidence to present and which witnesses to call at trial).

The complaint charging Greer alleges that both Carolyn Greer and Danyel Anderson told police that Greer had threatened them with a gun.  At the October 14, 2004 hearing, defense counsel stated that Carolyn Greer had later contacted him to say that statements attributed to her by the police concerning Greer’s guilt were false.  At the same hearing, defense counsel also stated that Danyel Anderson had told him that she wished to give his investigator a statement asserting Greer’s innocence with respect to the July 2004 incident.

At trial, defense counsel made what he called a “tactical” decision not to call Carolyn Greer to testify.  Greer then asserted his own right to call her, and the district court denied his request, observing that the decision to call witnesses is a tactical choice ultimately reserved for defense counsel.  The court also opined that the decision not to call Carolyn Greer appeared to be a “very good tactical decision” in light of the uncertainty about whether her testimony would help or hinder Greer’s case.  When Danyel Anderson was called by the state to testify, she affirmed the version of events contained in the complaint.

Greer contends that defense counsel should have taken Danyel Anderson’s statement of his innocence and used it to impeach her testimony.  He also contends that, if called, Carolyn Greer would have asserted his innocence.  Greer’s claims about the alleged lost opportunity to impeach Danyel Anderson with her own prior statement raise only theoretical questions about the thoroughness of his attorney’s performance, because any expectation that Anderson would have given an exculpatory statement is offset by her statements to the police, and to the jury, that Greer possessed a gun.  Regarding Carolyn Greer’s potential testimony, decisions about which evidence to present and which witnesses to call remain well within defense counsel’s strategic discretion.  Greer has not established that his counsel’s representation was constitutionally deficient.

Affirmed in part, reversed in part, and remanded.