This opinion will be unpublished and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

A05-2229

 

State of Minnesota,
Respondent,

vs.

Kong Mang Yang,
Appellant.

 

Filed December 26, 2006

Affirmed

Stoneburner, Judge

 

Sherburne County District Court

File No. K104640

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

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

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his sentence for conviction of two counts of second-degree assault, arguing that at the time of his trial, the district court did not have authority to submit sentencing interrogatories to the jury in order to impose an enhanced sentence under Minn. Stat. § 609.11, subd. 4 (2004).  Appellant also argues that the jury’s findings were insufficient to justify imposition of the statutory mandatory minimum sentence.  Because the supreme court has recently held that the district court had the inherent authority to allow a jury to make factual findings on aggravating sentencing factors before the legislature provided for sentencing juries, and because the jury’s findings in this case were sufficient to support the sentence imposed, we affirm.

D E C I S I O N

 

I.          Submission of sentencing enhancement factors to the jury

            The state first argues that because appellant Kong MangYang failed to object to the use of sentencing interrogatories, he has waived his right to appeal this issue.  We disagree.  A defendant’s right to appeal an illegal sentence cannot be waived.  Ballweber v. State, 457 N.W.2d 215, 218 (Minn. App. 1990).

            Yang was charged with two counts of second-degree assault in connection with an incident that occurred while he was incarcerated at the Minnesota Correctional Facility–Saint Cloud.  At the time of Yang’s trial in June 2005, Minn. Stat. § 609.11, subd. 4 (2004), provided, in relevant part, that a defendant who had a prior conviction for assault with a dangerous weapon and was convicted of a subsequent second-degree assault with a dangerous weapon, “shall be committed to the commissioner of corrections for not less than three years nor more than the maximum sentence provided by law.”  The statute also provided, in relevant part, that the question of whether the defendant used a dangerous weapon “shall be determined by the court . . . at the time of a verdict . . . .”  Id. at subd. 7.  It further stated that “[t]he court shall determine . . . at the time of sentencing whether the defendant has been convicted of a second or subsequent offense in which the defendant . . . used a . . . dangerous weapon.”  Id.  The state gave notice in its amended complaint that it would seek sentencing under Minn. Stat. § 609.11, subd. 4, based on Yang’s prior conviction of second-degree assault and his use of a “shank” made from a sharpened plastic table knife in the current assaults.

            Under Blakely v. Washington, however, enhanced sentencing based on judicial findings of fact constitutes a violation of a defendant’s Sixth Amendment rights.  542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004)  Although Blakely was released almost a year before Yang’s trial, it was not yet clear how Blakely would affect sentencing in Minnesota, and district courts were without guidance regarding the application of Blakely to sentencing statutes such as section 609.11.  In order to protect Yang’s Sixth Amendment rights, the district court, without objection from Yang, instructed the jury that if it found Yang guilty of second-degree assault, it must answer two questions: (1) “Is assault in the second degree, as found on the facts of this case, a person crime?” and (2) “At the time of the crime, did defendant possess or use, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon?”

            The jury found Yang guilty of second-degree assault on both counts and answered both special interrogatories “yes.”  The district court subsequently imposed concurrent sentences of 36 months under Minn. Stat. § 609.11, subd. 4, to run consecutively to the sentence for which Yang was incarcerated at the time of the assaults.

            In November 2005, after Yang was sentenced, the Minnesota Supreme Court held that “section 609.11 is unconstitutional to the extent that it authorizes the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.”[1]  State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005).  Barker was tried prior to the issuance of Blakely, and the district court in Barker’s trial did not submit interrogatories on section 609.11 factors to the jury.  Id.at 771.

            In determining the appropriate remedy in Barker, the supreme court stated that “engraft[ing] sentencing-jury or bifurcated-trial requirements onto . . . sentencing statutes would require rewriting them, something our severance jurisprudence does not permit.”  Id.at 775-76 (quoting State v. Shattuck, 704 N.W.2d 131, 147 (Minn. 2005) (quotation omitted)).  The supreme court remanded Barker’s case to the district court for imposition of a guidelines presumptive sentence, concluding that there was “no legislative authorization to impanel a resentencing jury for the purpose of imposing an upward departure from the presumptive sentence pursuant to Minn. Stat. § 609.11.”  Id. at 776.

            Yang argues he is entitled to the presumptive guidelines sentence because in Barker, the supreme court “rejected the notion that [district] courts can use their inherent power to submit [sentencing enhancement issues under section 609.11] to a jury because this would require rewriting the statute and be directly contrary to clear legislative intent.”  More recently, however, the supreme court held that a district court has inherent authority to impanel a jury on sentencing factors.  State v. Chauvin, 723 N.W.2d 20, 27 (Minn. 2006).

            Chauvin, like Yang, was tried after Blakely was issued but prior to any statutory amendments designed to accommodate a defendant’s Sixth Amendment rights as announced in Blakely and carry out the legislative policy to enhance sentences in some cases.  Id. at 22.  As in Yang’s case, the prosecutor in Chauvin sought a sentencing enhancement.[2]  Id.  The district court in Chauvin notified the parties of its intent, in the event the jury found Chauvin guilty, to reconvene the jury to hear evidence on and make findings about the existence of sentencing factors.  Id. at 22-23.  The jury found Chauvin guilty, and the district court then reconvened the jury for a finding on victim vulnerability.  Id. at 23.  No new evidence was presented, but the attorneys argued the issue to the jury.  Id.  The jury found that the victims were vulnerable adults, and the district court imposed a double upward departure sentence from the guidelines.  Id.  The supreme court affirmed the sentence, noting that “a court has inherent judicial authority to engage in activities that are (1) necessary (2) to achieve a unique judicial function (3) without infringing on equally important legislative or executive functions.”  Id. at 24.  Regarding necessity, the supreme court stated:

Without a constitutional mechanism for imposing an upward sentencing departure and without legislative guidance on how to proceed, impaneling a sentencing jury was necessary (1) to carry out the legislative sentencing scheme . . . and (2) to vindicate Chauvin’s Sixth Amendment right to a jury determination of aggravating sentencing factors . . . .

 

Id.  The supreme court also held that use of a sentencing jury is a “unique judicial function” and that the process did not infringe on the legislative function, but rather effectuated legislative policy.  Id. at 25-27.

            In Yang’s case, the district court did not separately impanel a sentencing jury, but instructed the jury to answer the questions about the sentencing factors only in the event that it determined guilt on the charges of second-degree assault.  We have previously sanctioned the use of special interrogatories concerning sentencing.  State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997).  Because the facts of Chauvin are strikingly similar to the facts in this case, we conclude that under Chauvin, the district court in Yang’s case properly exercised its inherent authority by submitting section 609.11 enhancement factors, other than factors related solely to criminal history, to the jury, thereby honoring Yang’s Sixth Amendment rights and the legislative policy to depart from the presumptive sentence in appropriate cases defined in section 609.11.

            Yang’s reliance on the remedy imposed in Barker is misplaced because Barker involved the issue of whether the district court had inherent authority to impanel a resentencing jury.  705 N.W.2d at 775-76.  In Barker, the supreme court interpreted the legislature’s failure to provide for sentencing juries for resentencing to “indicate[] a legislative intent that sentencing juries not be available to implement this mandatory minimum sentence in a resentencing hearing on remand . . . .”  Chauvin, 723 N.W.2d at 28.  But distinguishing Barker in Chauvin, the supreme court noted that the state in Barker was asking the supreme court “to recognize the district court’s inherent judicial authority to impanel a sentencing jury on remand of an unconstitutional sentence, and [the supreme court] made the policy decision to not recognize that authority after . . . the legislature had already omitted [section 609.11] from the authorization to use sentencing juries on resentencing.”  Id.  As in Chauvin, that policy decision is not involved in the case before us.

II.        Sufficiency of the jury’s findings to support imposition of mandatory      minimum sentence under Minn. Stat. § 609.11, subd. 4

 

            Yang’s argument concerning sufficiency of the jury’s finding to support imposition of the mandatory minimum sentence under Minn. Stat. § 609.11 is based on the wording of the jury instruction on this issue.  The statute defines the offenses in which the mandatory minimum is to be imposed with reference to “an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon . . . .”  Minn. Stat. § 609.11, subd. 4.  The question submitted to the jury was: “At the time of the crime, did defendant possess or use, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon?”  Yang argues that because the interrogatory was not limited to “use” of a dangerous weapon, the finding is insufficient to trigger sentencing under the statute.  We disagree.

            Because Yang did not object to the wording of the special interrogatories at trial, this court reviews his challenge under the three-prong test for plain error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (noting the United States Supreme Court requirement that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) that affects substantial rights).

            Generally, district courts are afforded broad discretion in choosing the language of jury instructions.  Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  A jury instruction that materially misstates the law is erroneous.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  This also applies to special interrogatories.  State v. Schmitz, 559 N.W.2d 701, 705-06 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).

            In this case, the words “use or possess” were specifically defined in the interrogatory to require that the weapon be somehow “employed” at the time of the commission of the crime.  Therefore, inclusion of “possess” did not materially misstate the law and was not erroneous.  Additionally, we conclude that even if the wording of the special interrogatory could be considered erroneous, Yang has failed to meet his burden to show that the wording affected his substantial rights, the third prong of the test for plain error.  See Griller, 583 N.W.2d at 740.  For the interrogatory to have affected Yang’s substantial rights, the record would have to have contained evidence to support a jury determination that Yang possessed the shank without employing it in some manner in commission of the crime.  Based on the eyewitness testimony concerning the assault, the record would not support such a determination.  Yang has failed to establish that the wording of the special interrogatory constituted plain error.

            Affirmed.