This opinion will be unpublished and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

A05-588

 

State of Minnesota,
Respondent,

vs.

Gregory Cooper Fraction,
Appellant.

 

Filed July 18, 2006

Affirmed in part and reversed in part

Stoneburner, Judge

Concurring specially, Dietzen, Judge

 

Clay County District Court

File No. K8041794

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North Eleventh Street, Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his convictions of racketeering, conspiracy to commit a controlled-substance crime, and three counts of aiding and abetting the sale of a controlled-substance crime.  Appellant asserts that (1) the district court erred in failing to allow the jury to determine whether certain witnesses were accomplices and failing to give an accomplice instruction; (2) the evidence is insufficient to sustain the convictions; (3) the prosecutor engaged in misconduct; (4) the district court erroneously admitted evidence of acts in other states and evidence of edited audio and video recordings; (5) the district court’s assignment of a severity level to the racketeering conviction violated Blakely v. Washington; (6) the district court erred by submitting aggravating sentencing factors to a jury; and (7) his Sixth Amendment rights were violated when the district court denied his attorney’s request to withdraw and failed to instruct appellant of his right to self-representation.  We affirm in part and reverse in part.

FACTS

 

Moorhead police detective Toby Krone first began investigating appellant Gregory Cooper Fraction and his associates after Detective Krone received information that a large crack cocaine selling ring was operating in the Fargo-Moorhead area.  Working with confidential informants (CIs) and agents from other jurisdictions, Detective Krone conducted several controlled purchases of crack cocaine between October 2003 and September 2004.  On February 28, 2004, Detective Krone and CI Jimmie Calloway conducted a controlled purchase of crack cocaine from appellant at a residence in Moorhead.  Appellant sold crack cocaine in four subsequent controlled situations.  On July 26, 2004, North Dakota Bureau of Criminal Investigation agent Duane Stanley, working with Detective Krone and CI Bud Fontes, executed a controlled purchase of crack cocaine from appellant at a restaurant parking lot in Moorhead.  Agent Stanley, Detective Krone, and Fontes executed three more controlled purchases from appellant between July 28, 2004, and August 12, 2004, in Fargo, North Dakota. 

            On March 16, 2004, Detective Krone and Calloway executed two separate “buy-busts” of crack cocaine from people associated with appellant.  The first buy was from appellant’s cousin, Ferris Lee, in Moorhead.  Ferris Lee was arrested.  The second buy was from appellant’s brother, Marvin Fraction, in Moorhead.  Marvin Fraction was also arrested.  On the same day, Detective Krone, Agent Stanley, and another CI conducted a third buy-bust from appellant’s cousin, Charles Fraction.  This buy occurred outside of an apartment building where Charles Fraction and appellant’s associate, Kayla Disher, lived.  Charles Fraction was arrested.  Appellant, who was not present at any of these buy-busts, was charged with aiding and abetting all three of the sales that took place on March 16, 2004.  The district court later dismissed the charge relating to Ferris Lee. 

            On June 14, 2004, Cass County, North Dakota Sheriff’s Department investigator Anthony Krogh, using a CI, conducted another controlled purchase outside of Charles Fraction’s and Disher’s apartment building in Moorhead.  The CI set up the purchase by contacting Charles Fraction, but the exchange was completed by a man later identified as Ferris Lee’s juvenile cousin Christopher Lee.  Appellant, who was not present at this controlled purchase, was charged with aiding and abetting the sale.

            Appellant was arrested in Moorhead on outstanding warrants in early September 2004.  A few days later, Detective Krone and Agent Stanley executed search warrants on Disher’s apartment in Moorhead and arrested Disher, Charles Fraction, Marvin Fraction, and Christopher Lee.  A second search warrant was executed at the Fargo residence of appellant’s girlfriend Diana Gerard. 

            Following his arrest, Marvin Fraction agreed to provide information to law enforcement regarding the group’s drug-selling activities in exchange for less jail time.  He testified as a state witness at appellant’s trial.  A jury found appellant guilty of racketeering; conspiracy; the sale of a controlled substance on February 28, 2004; the sale of a controlled substance on July 26, 2004; aiding and abetting the March 16, 2004 drug sales made by Marvin Fraction and Charles Fraction; and aiding and abetting the June 14, 2004 sale by Christopher Lee. 

            Immediately after the guilty verdicts were read and the jury was polled, the district court instructed the jury that

The laws of Minnesota provide for a separate sentencing proceeding.  When a defendant has been found guilty of a crime, and the state seeks an increase in the defendant’s sentence above the presumptive sentence provided by law, the trial jury shall consider aggravating factors relevant to the question of the sentence.

 

The district court instructed the jury on the guideline aggravating factor that the offense was a major controlled-substance offense and the statutory aggravating factor that appellant committed a violent crime.  A corrections agent testified during the sentencing phase of the trial, and the jury found that the offense was a major controlled-substance offense, that appellant committed a violent crime by selling controlled substances, that he had two or more prior convictions for violent crimes, and that he is a danger to public safety. 

            At sentencing, the district court assigned the unranked racketeering conviction a severity level of IX.  The district court sentenced appellant to 210 months in prison for racketeering (an upward departure), and concurrent sentences of 176 months for each of the two drug-sale convictions (also upward departures), 45 months for each of the three aiding-and-abetting convictions, and 51 months for the conspiracy conviction.  This appeal followed.

D E C I S I O N

 

I.          Determination of accomplices and accomplice instruction

            Appellant argues that the district court committed plain error by failing to give an accomplice testimony instruction regarding Marvin Fraction’s testimony and by failing to allow the jury to decide whether numerous other witnesses were accomplices whose testimony also had to be corroborated.[1]  The state concedes that, even though appellant did not request an accomplice instruction, the instruction should have been given.  See State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002) (stating that the duty to instruct on accomplice testimony remains regardless of whether counsel for the defendant requests the instruction).  But the state argues that failure to give the instruction was not plain error and that we should not exercise our discretion to review for plain error in this case.  The omission of a jury instruction on accomplice testimony, however, is reviewed for harmlesserror.[2] See State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (stating “[w]e evaluate the erroneous omission of a jury instruction under a harmless error analysis”). 

If the erroneous omission of the instruction “might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached, defendant must be awarded a new trial.”  If, however, beyond a reasonable doubt “the omission did not have a significant impact on the verdict, reversal is not warranted.” 

 

Id.(quoting State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989)). 

            In this case, Marvin Fraction testified that he had moved between St. Cloud; Sioux Falls, South Dakota; and the Fargo-Moorhead area with several members of a group to sell drugs.  He testified that the group, which included appellant, transported drugs from Chicago and Minneapolis by Greyhound bus and by having women associated with the group drive group members to and from those destinations.  Marvin Fraction testified that the members of the group kept their supplies of crack cocaine together and divided them into smaller quantities to sell.  He testified that one group member held all of the group’s money and that group members combined money to buy drugs.  Marvin Fraction testified that women associated with the group were called “slaves” because they would do “whatever we [told] them to do” to further the group’s business and that these women acted as drivers and stored drugs for the group.  He testified that the group would use “any means necessary” to bail members out of jail and to continue making sales for any group member who was in jail.  Marvin Fraction testified that the group was “always together,” that members were “in constant communication with each other,” and that members “always knew where each other was at, what they was doing.”  When a new member moved into the area, the group would provide a place to live.

            Marvin Fraction’s testimony was corroborated by law-enforcement officers who testified about controlled buys from group members and the results of search warrants executed on members of the group.  A detective testified that surveillance of telephone calls and visits to jailed group members revealed that the members cooperated to raise bail and had women members of the group give them rides to bring money to certain places.  Detective Krone testified that he learned through investigative interviews that group members traveled to Chicago and Minneapolis together; that during one attempted setup of a controlled buy, appellant told CI Calloway to contact another group member, Dana Cobbins; and that the information Krone received collectively from other law-enforcement departments led to a determination of “who was involved with one another, and that they were all operating together, working, selling crack cocaine.”  Agent Stanley testified that during a controlled purchase in Fargo in August 2004, appellant arrived in a car driven by one of the women in the group.  Detective Stuvland testified that the group used women to transport and conceal drugs and to conduct sales of drugs.

            Ashley Hunter, who admitted that he had once purchased marijuana and cocaine from appellant but who was not involved in selling or transporting drugs, testified that members of the group were “like partners,” that appellant and Dana Cobbins told other members “how they should do something different” and what quantity and where to sell drugs, and that group members obtained drugs from appellant and Cobbins to sell.

            CI Jimmie Calloway testified that appellant and Cobbins “were the best organized couple of guys that I had seen.”  He testified that appellant and Cobbins would send him to other group members to buy drugs when they were out of town.  Bud Fontes, another CI, testified that he once contacted appellant to buy crack cocaine and that appellant referred him to another dealer.

            Physical evidence also corroborated Marvin Fraction’s testimony.  Several audio and video recordings of controlled purchases and conversations between group members were played to the jury revealing that male group members were frequently driven to sales by women, that group members picked up “food” and “barbecue” (code words for drugs) from each other’s residences, and that members made their cell phones available to each other to conduct drug sales.

            From our review of the record, we conclude that the evidence that appellant was involved in and played a leadership role in a group whose business was to sell crack cocaine was overwhelming and that the evidence came from both accomplice or potential accomplice testimony and corroborating nonaccomplice testimony and physical evidence.  The record compels the conclusion, beyond a reasonable doubt, that the erroneous omission of an accomplice instruction did not have a significant impact on the verdict in this case and, therefore, constituted harmless error.  Likewise, any error in failing to submit to the jury a determination that witnesses other than Marvin Fraction could have been accomplices was harmless in light of the corroboration by testimony of the nonaccomplice witnesses and physical evidence.

II.        Aiding and abetting—sufficiency of evidence

            Appellant asserts that the evidence is insufficient as a matter of law to support his convictions of aiding and abetting two drug sales on March 16, 2004, and the sale on June 14, 2004.  When reviewing a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict that it did.  See State v. Webb, 440 N.W. 2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  See State v. Moore, 438 N.W. 2d 101, 108 (Minn. 1989).  The jury’s verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

            Appellant was not present for any of the sales he was charged with aiding and abetting, and he argues that there is no evidence that he did anything to promote two of the sales.  The state argues that because appellant does not challenge the sufficiency of the evidence to support the conviction of conspiracy to violate drug laws, which encompasses the period of time during which the sales took place, he is therefore guilty of aiding and abetting these sales.[3]  The state also asserts that appellant is guilty of aiding and abetting the sales because he supplied the drugs for these sales.

            “A person is criminally liable for a crime committed by another if the person intentionally aides, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2004).[4]  “Active participation in the overt act is not required” for accomplice liability.  State v. Williams, 415 N.W.2d 760, 761 (Minn. App. 1987).  But aiding and abetting in the sale of drugs “requires some active participation to reach the requisite intent.”  State v. Kessler, 470 N.W.2d 536, 542 (Minn. App. 1991).  Liability attaches when the defendant “plays some knowing role in the commission of the crime and takes no steps to thwart its completion.”  State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995). 

            In this case, there is evidence that appellant was the source of the crack cocaine involved in the sale by Marvin Fraction to CI Calloway, but there is no evidence directly linking appellant to the sale by Charles Fraction on March 16, 2004, or the sale on June 14, 2004.  Viewing the evidence in the light most favorable to verdict, as we must, we conclude that there is sufficient evidence to support appellant’s conviction of aiding and abetting the sale of crack cocaine by Marvin Fraction on March 16, 2004, but insufficient evidence to support appellant’s convictions of aiding and abetting the other two sales.  We therefore vacate the convictions of and sentences for aiding and abetting the sale by Charles Fraction on March 16, 2004, and the sale that occurred on June 14, 2004.

III.       Sufficiency of evidence—racketeering

            A racketeering conviction requires proof beyond a reasonable doubt that a person participated in “a pattern of criminal activity.”  Minn. Stat. § 609.903, subd. 1 (2004).  From the probable-cause hearing through this appeal, appellant has consistently asserted that the state failed to meet this burden of proof.  For purposes of racketeering, criminal activity is “conduct constituting, or a conspiracy or attempt to commit,” any one of the offenses listed at Minn. Stat. § 609.902, subd. 4 (2004).  A “pattern” means three or more predicate acts that

(1)       were committed within ten years of the commencement of the criminal proceeding;

(2)       are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and

(3)       were either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.

 

Minn. Stat. § 609.902, subd. 6 (2004).  A person “participates” if the person engages in a predicate act or is criminally liable under the aiding-and-abetting statute “with respect to conduct constituting at least three of the criminal acts included in the pattern and two of the acts constitute felonies other than conspiracy.”  Minn. Stat. § 609.902, subds. 5, 6, and 8 (2004). 

            Appellant has continuously challenged the use of acts committed in North Dakota to constitute the three “criminal acts” required for racketeering.  But the state argues that it has met its burden of proof through evidence that appellant engaged in a sufficient number of predicate acts within Minnesota to qualify as a pattern.  We agree.

            Appellant does not challenge his convictions of two counts of sale of a controlled-substance crime under Minn. Stat. § 152.022, subd. 1(1), for sales appellant made on February 28, 2004, and July 26, 2004, in Clay County, Minnesota.  Each of these convictions is a “criminal act” under the racketeering statutes.  See Minn. Stat. § 609.902, subd. 4 (including “a felony violation of chapter 152” as a “criminal act”).  And we have already  rejected appellant’s pro se challenge to his conspiracy conviction under Minn. Stat. § 152.023, subd. 1(4), which constitutes the third “criminal act” for racketeering purposes.  Id.

            We also find no merit in appellant’s claim that the evidence is insufficient to prove that he participated in an “enterprise.”  An “enterprise” includes a “group of persons, associated in fact although not a legal entity.”  Minn. Stat. § 609.902, subd. 3 (2004).  Under Minnesota’s racketeering law, an “enterprise” is shown by

(1)       a common purpose among the individuals associated with the enterprise; where

(2)       the organization is ongoing and continuing; with its members functioning under some sort of decisionmaking arrangement or structure; and where

(3)       the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.

 

State v. Huynh, 519 N.W.2d 191, 196 (Minn. 1994) (footnote omitted).  “Isolated, sporadic criminal acts do not count.  The criminal acts must be related through a common plan or shared purpose, or alternatively, must be committed or promoted by persons associated with the enterprise.”  Id. 

            Appellant concedes that in this case, the group members had a common purpose, but he argues that the evidence is insufficient to show that the group was “ongoing and continuing,” that it had a decision-making structure, or that its activities extended beyond the commission of the underlying criminal acts.  We disagree. 

            The record contains evidence that members of the same group were investigated for similar activities in Sioux Falls, South Dakota, in 2001-2002.  Marvin Fraction testified that the group moved between Sioux Falls, St. Cloud, and Fargo-Moorhead to sell drugs over a period of years and that pressure from law enforcement caused the group to leave Sioux Falls and move to Fargo-Moorhead.  The evidence is sufficient to show the ongoing, continuing nature of the group.

            The record contains testimony that there was a structure to the group responsible for acquiring, and in some cases, manufacturing drugs; bailing members out of jail; continuing the business of jailed members; handling money; and providing transportation, lodging, and other necessary support to group members.  The evidence also demonstrates that appellant was one of the principals in the organization.  A “principal” is a person “who personally engages in conduct constituting a [criminal act] or who is criminally liable . . . [for aiding and abetting] the conduct of another constituting a [criminal act].”  Minn. Stat. § 609.902, subd. 8.  Marvin Fraction testified that appellant was primarily responsible for obtaining drugs in Chicago and Minneapolis and bringing them to the Fargo-Moorhead area.  There was testimony that appellant advised members about how to sell drugs and had a role in dividing drugs among group members. 

            The requirement that the activities extend beyond the commission of the predicate crimes “assures an entity distinct from the predicate crimes.”  Huynh, 519 N.W.2d at 196 n.7.  In this case, there is ample evidence that group members assisted and supported each other by providing places to live, transportation, bail, “banking,” and pooling of resources including money and drugs.  We conclude that there is sufficient evidence in the record of the ongoing nature and structure of the group and of the extent of its activities beyond commission of the predicate acts to support appellant’s racketeering conviction.

IV.       Prosecutorial misconduct

            Appellant argues that he was denied a fair trial because the prosecutor (1) repeatedly asked improper questions; (2) introduced irrelevant gang-related evidence; and (3) appealed to the passions and prejudices of the jury.  When reviewing a claim of prosecutorial misconduct, we will reverse only if the misconduct, when viewed in light of the trial as a whole, was so serious and prejudicial that it impaired the defendant’s right to a fair trial.  See State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is “harmless beyond a reasonable doubt.”  Ture v. State, 681 N.W.2d 9, 19 (Minn. 2004).  An error is harmless beyond a reasonable doubt if the verdict rendered was “surely unattributable to the error.”  State v. DeRosier, 695 N.W.2d 97, 106 (Minn. 2005).  A prosecutor must not speculate about events absent factual support in the record.  State v. Morton, 701 N.W.2d 225, 234 (Minn. 2005).

            Appellant first complains that the prosecutor asked improper questions.  Essentially appellant complains that after an objection to a question was sustained, the prosecutor repeated the same question.  But the record shows that the prosecutor often rephrased the question or that there was no objection to the follow-up question.  The questions that appellant complains about involved Trista Harris and Diana Girard, women involved with the group members, and Terrance Edwards, who “hung around” with the group.  None of these witnesses provided testimony critical to the state’s case that was not already provided by other witnesses.  Even if the prosecutor’s persistence in questioning could be considered misconduct, it is not possible that the verdict was attributable to the questioning of these three relatively minor and inconsequential witnesses.

            Appellant also contends that the state introduced irrelevant gang evidence.  Gang affiliation is admissible if relevant and if its probative value is not substantially outweighed by the danger of unfair prejudice.  State v. Carlson, 268 N.W.2d 553, 559 (Minn. 1978) (citing Minn. R. Evid. 403); see also State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990) (concluding that testimony of possible gang membership was admissible because it is relevant to bias), review denied (Minn. July 6, 1990).  Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). 

Marvin Fraction testified to the gang affiliation of several group members, and a detective pointed out gang signs in photographs that were admitted as exhibits.  The same detective testified that gang affiliation was not important because Moorhead “[does not] have areas that are controlled by a specific gang. . . .  We have gang members that are present in our community, that are about making money, selling drugs, and that’s how they – the associations occur.”  The gang evidence was limited, and the evidence was relevant to the state’s assertion that the goals of the group under investigation were stronger than individual gang affiliations, supporting the existence of an enterprise that the state was required to prove as part of its racketeering case.  We conclude that the district court did not abuse its discretion by permitting the limited evidence concerning gangs.

The prosecutor “must avoid inflaming the jury’s passions and prejudices against the defendant.”  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).  “While the state’s argument need not be ‘colorless,’ it must be based on the evidence produced at trial, or the reasonable inferences from that evidence.”  Morton, 701 N.W.2d at 237.  Appellant contends that the prosecutor improperly focused on his “moral failings” and implied that he was a “worthless human being” who “wast[ed] time.”  The prosecutor elicited testimony that appellant and other members of the group were unemployed, smoked marijuana, played video games, and gambled as circumstantial evidence that the group was dependent on drug sales to support its members and their habits.  We cannot conclude that the prosecutor committed misconduct or that the district court abused its discretion concerning this evidence.

Appellant also argues that the prosecutor improperly inflamed the jury’s prejudices and passions in its closing argument by stating: “Is it really so scary that you’re here, considering the charges against this defendant?  Or is this what’s scary?  This is what is scary.”  The district court overruled appellant’s objection on grounds of “passion and prejudice.”  After the jury left the courtroom, counsel for appellant told the district court that the state was “using the photographs that the state introduced showing my client and others with some friends, making gang signs” and that the state “was introducing evidence of gang affiliation or gang knowledge or gang friendship.”

It is unclear from the record which of the several photo exhibits the prosecutor was referring to.  Without a clear record, and considering the remarks in the context of the prosecutor’s entire closing argument, we cannot conclude that these remarks, even if inappropriate, deprived appellant of a fair trial or in any way affected the verdict.

V.        Instruction concerning evidence of acts committed in other states

            Appellant concedes that the district court admitted evidence of acts committed in other states for purposes other than proving the criminal-acts requirement of racketeering but argues that the district court erred by failing to instruct the jury about how it could use this evidence.  But the state points out that the district court properly instructed the jury that the only evidence it could consider for determining the criminal-acts element of racketeering was evidence of the crimes committed in Minnesota and that evidence from acts in other states was properly admitted to support the enterprise requirement. 

            We assume that the jury followed the district court’s instructions.  See State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).  In this case, the district court specifically instructed the jury that in order to convict appellant of selling drugs, it had to find that the sales took place in Clay County, Minnesota.  The district court instructed the jury that in order to convict appellant of aiding and abetting the sale of drugs, it had to find that “the defendant’s act took place . . . in Clay County.”  The jury instruction for conspiracy similarly stated that one of the elements of the offense was that “the defendant entered the agreement or an overt act took place . . . in Clay County.”  The racketeering instruction stated that an element of the offense was that “the defendant’s acts . . . took place on or about November 11, 2001, and continued through September 9, 2004, in Clay County.”  The jury was clearly instructed that it could find appellant guilty only for his acts in Minnesota.  Appellant did not request an instruction on how the jury could use the evidence of acts committed in North Dakota, which was introduced by the state as relevant to the continuity and distinct-structure requirements of a racketeering enterprise, and we find no error in the district court’s failure to sua sponte provide such an instruction.

VI.       Assignment of severity level for racketeering

            Appellant argues that Blakely v. Washington, 542 US. 296, 124 S. Ct. 2531 (2004), prohibits the assignment of a severity level based on judicial fact-finding and that his sentence for racketeering—an unranked offense in the sentencing guidelines—should either comport with the highest severity-level crime of which he was convicted, or, under the reasoning of In re Acron, 95 P. 3d 1272 (Wash. App. 2004),[5] be one year and one day, the lowest sentence for any felony.  The state argues that because appellant failed to raise this issue in the district court and failed to claim plain error, he has waived the right to have this issue addressed on appeal.  In the interests of justice, we will briefly address this issue.

            A Blakely issue arises only when the district court imposes a longer sentence than the prescribed statutory maximum on the basis of judicial findings.  Blakely, 542 U.S. at 301, 124 S. Ct. at 2536.  The racketeering statute provides for a sentence of “not more than 20 years.”  Minn. Stat. § 609.904, subd. 1 (2004).  The sentencing guidelines do not contain a presumptive sentence for racketeering because the crime is unranked.  The district court assigned severity level IX, which, even with a maximum criminal-history score, carries a presumptive guidelines sentence of less than the statutory maximum sentence for racketeering.  There is no merit in appellant’s challenge to the severity level assigned to racketeering as a violation of Blakely because he did not receive a sentence greater than the statutory maximum based on judicial findings.

VII.     Use of sentencing jury to determine aggravating factors to support upward sentencing departure

 

            Appellant argues that the district court was without authority to submit the determination of aggravating factors to support an upward sentencing departure to a jury and that his sentence must be reduced to the presumptive guidelines sentence.  Appellant’s trial occurred after the release of Blakely but before the Minnesota Supreme Court ruled on Blakely’s impact on the Minnesota sentencing guidelines.  After appellant was convicted, the state moved for an upward sentencing departure.  The district court submitted the issue of the existence of aggravating factors to the jury over appellant’s objection that it lacked authority to do so. 

            After appellant was sentenced, the supreme court held that, under Blakely, the upward departure provisions in the Minnesota sentencing guidelines were unconstitutional to the extent that they permitted upward durational departures based solely on judicial findings.  State v. Shattuck, 704 N.W.2d 131, 144 (Minn. 2005).  The supreme court has also held

that the determination of a pattern of criminal conduct under [Minn. Stat. § 609.1095, subd. 4 (2004)], goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court’s finding of a pattern of criminal conduct violated Henderson’s Sixth Amendment right to trial by jury.

 

State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005).  This court recently held that a district court erred by submitting interrogatories to the jury for findings required for an upward durational departure under Minn. Stat. § 609.1095, subd. 2 (2002), because the specific requirement in the statute that the findings be made by a judge precluded submission of the issues to a jury.  State v. Hobbs, ___N.W.2d ___, 2006 WL 1320019, at *4-5 (Minn. App. May 16, 2006).

            Minn. Stat. § 244.10, subd. 5, which provides for sentencing hearings, was amended in 2005 to provide for sentencing juries.  The legislative changes became effective on June 3, 2005, and apply to sentencing hearings, resentencing hearings, and sentencing departures sought on or after that date.  See Minn. Laws ch. 136, art. 16, §§ 3-6.  Minn. Stat. § 609.1095 was also amended in 2005 to provide that specific factors other than criminal history are determinations for the fact-finder rather than the judge.  But those amendments became effective August 1, 2005, and apply only to crimes committed on or after that date.  See Minn. Laws ch. 136, art. 16, §§ 11-12.

            In Shattuck, the supreme court declined to direct the district court to empanel a sentencing jury on remand, stating that “[f]or 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.”  704 N.W.2d at 148.  But the Shattuck court explicitly stated that it did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.”  Id.at 148 n.17.  In State v. Barker, 705 N.W.2d 769 (Minn. 2005), the supreme court declined the invitation of the state to direct the district court on remand to empanel a sentencing jury based on its inherent power.  The supreme court stated:

In Shattuck,we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury.  We noted that although “[t]he authority to regulate matters of court procedure arises from the court’s inherent judicial powers,” this “authority extends only to its unique judicial functions.” Shattuck, 704 N.W.2d at 147.  And while imposing a sentence within the limits of punishment for criminal acts is a judicial function, we observed that the power to fix these limits lies with the legislature and we ultimately left to the legislature the task of amending the Minnesota sentencing scheme to comport with the requirements of Blakely  and Apprendi.  Shattuck, 704 N.W.2d at 147. . . .

 

The state also asks us to find authority to empanel a sentencing jury on remand based on the 2005 amendments to Minn. Stat. § 244.10.  The amendments authorize the district court to “impanel a resentencing jury” to determine “the existence of factors in support of an aggravated departure.”  [Citation omitted.]  But that section . . . applies solely to situations where the state seeks an aggravated departure under the sentencing guidelines, and not to mandatory minimum sentences.

 

Id. at 775-76.  Noting that the legislature had not amended Minn. Stat. § 609.11, the statute under which Barker’s sentence was enhanced, the supreme court found no legislative authorization to empanel a sentencing jury on resentencing and remanded to the district court for imposition of a sentence within the presumptive range.

            This court is currently divided on the issue of whether the district court has inherent authority to empanel a sentencing jury to determine guideline or statutory aggravating factors as occurred in this case.  The majority on this panel reads Shattuck and Barker as directing the district courts to rely on statutory authority constitutionally available and not to rely on inherent power to empanel sentencing juries.  We agree with the reasoning in Hobbs that the plain language of Minn. Stat. § 609.1095, as it existed at the time of appellant’s sentence, which provided for enhanced sentences based on judicial findings of specific factors, precluded the district court from submitting those aggravating factors to a jury.  Therefore, the district court in this case erred by submitting the statutory factors to a jury and erred by imposing an upward departure on appellant under Minn. Stat § 609.1095.  Furthermore, because amendments to the statute are not applicable to appellant’s case, there is no authority for the district court to empanel a sentencing jury to determine the existence of the statutory aggravating factors on resentencing.

            But, in this case, the enhancement of appellant’s sentence was based on guidelines aggravating factors as well as statutory aggravating factors, and the 2005 amendments authorizing sentencing juries for guideline aggravating factors apply to resentencing.  If the district court can constitutionally empanel a sentencing jury on remand for resentencing under the guidelines, we conclude that any error in empaneling a jury to determine guidelines aggravating factors in appellant’s case was harmless. 

            Appellant argues that application of the 2005 amendments to Minn. Stat. § 244.10 to him would violate the constitutional proscription against ex post facto laws.  He cites Miller v. Florida, 482 U.S. 423, 435-36, 107 S. Ct. 2446, 2453-54 (1987), for the proposition that retroactive application of revised sentencing guidelines violates the ex post facto provision of the federal constitution.  The revision at issue in Miller, however, involved an increase in the presumptive sentence for Miller’s offense from a range of between three and one-half and four years to five and one-half and seven years.  Id. at 423, 107 S. Ct. at 2447.  In Miller, the United States Supreme Court stated that

even if the law operates to the defendant’s detriment, the ex post facto prohibition does not restrict legislative control of remedies and modes of procedure which do not affect matters of substance.  Hence, no ex post facto violation occurs if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.

 

Id. at 433, 107 S. Ct. at 2452-53 (quotations and citation omitted).

            Because the 2005 amendments to Minn. Stat. § 244.10 are merely procedural, we reject appellant’s argument that application of the amendments on resentencing would be unconstitutional.  Appellant does not complain that the sentencing jury was improperly instructed concerning the guidelines aggravating factors or that use of the sentencing jury violated rights other than the constitutional proscription against ex post facto laws.  We conclude that on resentencing, the district court may constitutionally empanel a sentencing jury to determine the guidelines aggravating factors.  Because it would waste judicial resources to require the district court to do again what has already been done, we conclude that any error in the use of a sentencing jury in appellant’s case to determine guidelines aggravating factors was harmless.  The jury’s finding of guidelines aggravating factors supports the upward sentencing departure imposed, and, therefore, we affirm the upward departure despite the district court’s error in submitting the statutory aggravating factors to the sentencing jury. 

VIII.    Appellant’s pro se arguments

            Appellant argues in his supplemental pro se brief that he was denied a fair trial by the district court’s admission of “innumerable edited recordings” that were “extremely prejudicial.”  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the 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) (citation omitted).  The district court admitted edited audio and video recordings of controlled purchases and of telephone conversations between group members when one of the members was in jail.  The recordings were edited by law-enforcement agents to remove “dead space” and irrelevant matters.  The full recordings were disclosed to appellant before trial, and he could have requested that the full recordings be played or that additional portions of the recordings be played.  Appellant has failed to disclose any relevant portion of a tape that was not played to the jury and has failed to show that the portions of the tapes played distorted the evidence or were improperly altered.  We find no merit in this argument.

            Appellant also argues that the district court abused its discretion by not allowing his public defender to withdraw because of a perceived conflict of interest and by not giving appellant the option of proceeding pro se.  The district court made a determination that the public defender’s perceived conflict of interest was not prejudicial to appellant and that there was no benefit in appellant having a different attorney.  From our review of the record, we conclude that the district court did not err in its determination that there was no conflict of interest that would prejudice appellant.  And appellant has not shown that an actual conflict existed or that he was in any way prejudiced by counsel’s perceived conflict of interest.  Appellant never unequivocally requested the right to represent himself; therefore, the district court did not deny such a right or otherwise err by not instructing appellant on the right to self-representation.  See State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) (requiring that a defendant make a clear, unequivocal, and timely request to represent himself).

            Affirmed in part and reversed in part.

DIETZEN, Judge (concurring specially)

            I agree and fully support the reasoning and analysis of the majority in sections I-VI, and VIII of this opinion.  I write separately because I do not agree with the majority’s reasoning and analysis in section VII, which addresses whether, in light of the constitutional principles of Blakely, the district court had the inherent authority to submit to the jury the determination of aggravating factors to support an upward sentencing departure through post-verdict special interrogatories, for the reasons set forth in State v. Albertson, No. A04-2277, 2006 WL 466454, at *8 (Minn. App. Feb. 28, 2006), review granted (Minn. May 16, 2006), and State v. Chauvin,No. A05-726, 2005 WL 2979382, at *4-5 (Minn. App. Nov. 8, 2005), review granted (Minn. Jan. 17, 2006).  In Chauvin, we stated, “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.”  2005 WL 2979382, at *4.  Consequently, I would conclude that, under the unique circumstances of this case, the district court had the inherent authority to submit to the jury the factual determination of aggravating factors to support an upward departure.  Because I agree with the result reached by the majority in section VII, I concur.