This opinion will be unpublished and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

A05-1613

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey F. Frank,

Appellant.

 

 

Filed October 3, 2006

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

 

Hennepin County District Court

File No. 05001296

 

 

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

 

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

 

John Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Jeffrey Frank pleaded guilty to theft of more than $2,500; waived his right to a jury determination of sentence-enhancement factors under the career-offender statute; and, based on a judicial determination of these factors, received an upward durational departure from the sentencing guidelines to be served consecutively to an unrelated charge.  In this sentencing appeal, Frank challenges the constitutional validity of the departure, the proportionality of the departure to the conviction offense, and the consecutive sentencing.  We conclude that Frank’s waiver was constitutionally valid, and the district court’s sentence was not unjustifiably disproportionate to the severity of Frank’s offense.  We, therefore, affirm the sentence duration.  But, consistent with the joint request of Frank and the state, we reverse and remand the district court’s consecutive-sentencing order.

F A C T S

The state charged Jeffrey Frank with theft of more than $35,000 for stealing approximately $60,000 worth of jewelry from an antique store.  Under a negotiated plea agreement, Frank entered a guilty plea to the lesser charge of theft of more than $2,500 and agreed to be sentenced as a career offender if the district court found that his present offense was committed as part of a pattern of criminal conduct.  Frank explicitly agreed to allow the district court judge to determine the sentence-enhancement factors in the career-offender statute, and waived his right under Blakely v. Washington, to have a jury make these findings.  542 U.S. 296, 124 S. Ct. 2531 (2004).  He also agreed to cooperate in the effort to recover the stolen jewelry.

At the sentencing hearing, the state submitted, without objection, Frank’s felony and gross misdemeanor conviction records, and presented evidence that established the value of the stolen property, linked Frank to another jewelry theft, and described Frank’s method of repackaging the jewelry and pricing it for sale.  The state advised the district court that more than ninety percent of the owner’s stolen property was still missing and that Frank had only minimally cooperated in the state’s effort to recover it.

The district court found beyond a reasonable doubt that Frank committed the current offense as part of a pattern of criminal conduct and that he had five or more felony convictions.  On these findings the district court concluded that Frank was a career offender.  Additionally, the court found that Frank had not been forthcoming about the extent of his criminal history or the distribution of the stolen jewelry.  The district court imposed an executed 110-month sentence and ordered Frank to pay restitution of $54,285.  Relying on the high relative worth of the stolen property and the evidence of repackaging and resale, the district court found that Frank had committed a major economic offense and ordered that the sentence be served consecutively to an unrelated sentence, which Frank was currently serving.

            Frank argues that his aggravated sentence must be vacated and his conviction remanded for imposition of a guidelines sentence because (1) his Blakely waiver to the unconstitutional career-offender statute is unenforceable, (2) the upward sentencing departure is disproportionate to the severity of the offense for which he was convicted, and (3) the district court’s basis for imposing a consecutive sentence is factually unsupported and constitutionally infirm.

D E C I S I O N

I

As a threshold issue, we reject the state’s contention that Frank failed to preserve the Blakely issue by not raising it in the district court.  The Minnesota Supreme Court has directly addressed this appealability issue in State v. Thompson, ___ N.W.2d ___ (Minn. Sept. 7, 2006).  “[A]n issue arose with respect to compliance with the Supreme Court’s Blakely decision,” at the sentencing hearing in Thompson. Thompson, ___N.W.2d at ___, 2006 WL 2564379, at *4.  As in this case, the sentencing-hearing issue was resolved by an “on-the-record waiver of [appellant’s] right to have a jury determine sentencing enhancement factors.”  Id.  The supreme court determined that the Blakely issue was “squarely before the district court” and “sufficiently preserved for appeal.”  Id. We therefore consider the merits of Frank’s appeal.

Frank was sentenced to 110 months as a career offender based on a judicial finding that he had at least five prior felony convictions and that his current offense for theft was committed “as part of a pattern of criminal conduct.”  See Minn. Stat. § 609.1095, subd. 4 (2004) (providing for aggravated durational departure on judicial findings when offender has five or more prior felony convictions and present felony offense was committed as part of pattern of criminal conduct). 

Frank acknowledges that he explicitly waived his Sixth Amendment right to a jury trial, and the record unequivocally confirms this waiver.  At his plea hearing, and again at his sentencing hearing, Frank waived his right to have a jury determine the facts supporting the application of the career-offender statute.  He testified that he understood that he was charged as a career offender and that he had a right to have a jury determine whether the present offense was committed as part of a pattern of criminal conduct for possible upward departure in his sentence.  He then expressly agreed that the judge could make those findings.  At his sentencing hearing, Frank reaffirmed his waiver of the right to have a jury determine the factors necessary to find him a career offender, specifically, whether he had exhibited a pattern of criminal conduct.  Frank acknowledged that he had waived his right to testify, to have prosecution witnesses testify, to question the prosecution witnesses, and to require any favorable witnesses to testify in his defense.  

Nonetheless, Frank contends that his waiver is unenforceable because the career-offender statute is facially unconstitutional, and no statutory authority exists that would provide a basis for his upward departure.  We reject this argument for two reasons.

First, Blakely expressly permits a defendant to waive his Sixth Amendment right to a jury and to consent to judicial factfinding of sentence-enhancement factors.  Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 2541 (2004).  “When a defendant pleads guilty, the state is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.  If appropriate waivers are procured, states may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.”  Id. (citations omitted).  In Thompson the supreme court specifically determined that an on-the-record waiver of a right to have a jury determine the existence of sentence-enhancement factors to support an upward sentencing departure is valid.  See Thompson, ___ N.W.2d at ___, 2006 WL 2564379, at *6 (applying sentence-enhancement factors based on waiver of jury-trial rights).

Second, Frank’s argument of facial unconstitutionality rests on a very narrow reading of the supreme court’s opinion in  State v. Shattuck, 704 N.W.2d 131 (Minn. 2005) (Shattuck II).  In Shattuck II, the supreme court held that another sentence-enhancement statute, Minn. Stat. § 609.109, was facially unconstitutional.  Id. at 142-43.  This statement, when read in the context of the entire opinion, apparently means that the statute as written, without a waiver of a sentencing jury or a stipulation to the relevant facts, would invariably result in an unconstitutional sentence.  This reading of Shattuck II is confirmed by its express acknowledgment that the United States Supreme Court held in Blakely that judicial fact-finding does not violate the Sixth Amendment so long as the defendant has consented to judicial fact-finding.  Id. at 142 (“We note that Blakely expressly permits a defendant to either stipulate to relevant facts or consent to judicial fact-finding regarding sentencing factors.”).  This reading is also consistent with our previous holding that the career-offender statute is only “unconstitutional to the extent that it authorizes a judicial finding that a pattern of criminal conduct exists.”  State v. Adkins, 706 N.W.2d 59, 64 (Minn. App. 2005).

Frank validly waived his constitutional right to a jury determination of sentence-enhancement factors and consented to judicial decision-making.

II

Frank alternatively argues that his sentence must be reduced because it is disproportionate to the severity of the offense for which he was convicted and unfairly exaggerates the criminality of his conduct.  He contends that the district court found no legitimate aggravating factors sufficient to support the aggravated sentence of 110 months. 

We review a district court’s departure from the sentencing guidelines for abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  Generally, we will not interfere with the district court’s discretion in sentencing unless the sentence is disproportionate to the offense.  State v. Blanche, 696 N.W.2d 351, 378 (Minn. 2005).

The record fully supports the district court’s finding beyond a reasonable doubt that Frank is a career offender.  It is undisputed that he had five or more prior felony convictions.  The district court considered a number of facts in concluding that Frank’s history shows a pattern of criminal conduct.  Although his conviction was for theft of more than $2,500, Frank admitted that he stole antique jewelry from the Hopkins Antique Mall consisting of about 240 rings with a combined value of approximately $60,000.  Evidence linked Frank to another theft of jewelry from an antique store in Osceola, Wisconsin about a year earlier.  The owner of the Hopkins Antique Mall testified to the amount of her loss and to the ongoing, detrimental impact Frank’s theft has had on her business and her family life.  Evidence showed that Frank had repackaged the rings and priced them for sale.  Frank’s prior convictions for theft crimes and evidence of a marketing operation in which he resold stolen items, justifies the district court’s determination that Frank was a career offender within the meaning of Minn. Stat. § 609.1095, subd. 4.

In addition, Frank acknowledged that he understood that the district court’s sentence would vary depending on the degree of his cooperation in recovering the stolen items.  Law enforcement recovered only twenty-three rings out of 248 stolen from the Hopkins Antique Mall.  The district court found that Frank had failed to cooperate in locating the remaining ninety percent of the stolen items.

The career-offender statute provides that the district court may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence, which in this case is 120 months.  See Minn. Stat. § 609.52, subd. 3(2) (2004) (if value of stolen property exceeds $2,500, sentence is imprisonment for not more than ten years or payment of fine of not more than $20,000, or both).  The court did not abuse its discretion by sentencing Frank to 110 months as a career offender.

III

Finally, Frank contends that the district court erred in ordering that his sentence be served consecutively to an existing unrelated sentence because he did not waive his right to have a jury determine whether he is a major economic offender, and the record does not support the categorization of a major economic offense. 

The state acknowledges that Frank’s waiver of his right to have the jury determine facts supporting an enhanced sentence under the career-offender statute did not extend to a judicial determination on the aggravating factor that Frank was a major economic offender under Minn. Sent. Guidelines II.D.2.b.(4).  The record supports this acknowledgement.  Consistent with the joint request by Frank and the state, we remand the consecutive sentencing order to the district court for further proceedings.

            Affirmed in part, reversed in part, and remanded.