This opinion will be unpublished and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

A05-2446

 

 

State of Minnesota,

Respondent,

 

vs.

 

Casey Roland Jones,

Appellant.

 

 

Filed December 5, 2006

Affirmed in part, reversed in part, and remanded
Crippen, Judge*

 

 

Sherburne County District Court

File No. KX-04-636

 

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

 

Kathleen Heaney, Sherburne County Attorney, Sean C. Dillon, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

John M. Stuart, State Public Defender, Tony G. Atwal, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Disputing his felony theft sentence, appellant argues that the district court’s upward departure must be reversed and the presumptive sentence imposed because the career-offender statute on which it was based is facially unconstitutional.  Although we reverse the sentence, we remand in a fashion dictated by the Minnesota Supreme Court decision in State v. Chauvin, concluding that the district court has the inherent authority to craft a sentencing procedure in conformance with Blakely v. Washington, 542 U.S. 2296, 124 S. Ct. 2531 (2004).  We affirm in part on appellant’s contention that his theft was part of a behavioral incident that prompted his conviction and sentence in another county for receiving stolen property.

FACTS

After being suspected of stealing several computers from an Elk River Wal-Mart, appellant Casey Jones was charged with theft in Sherburne County.  An investigator from the Mille Lacs County Sheriff’s Department informed Elk River police that appellant had pawned twelve computers at two different pawn shops in Mille Lacs County, and that several of the computers had Wal-Mart tags still attached.  Appellant was charged in Mille Lacs County with theft and receiving stolen property; in March 2005, he pleaded guilty to the receiving stolen property charge in Mille Lacs County and the court sentenced him to a presumptive sentence of 22 months executed.  In June 2004, appellant waived his right to a jury trial and pleaded guilty to theft in Sherburne County District Court.  The plea agreement called for dismissal of other charges, and appellant agreed to be sentenced to an enhanced 60-month term, based on his career offender status. 

            Later, when appellant appeared for sentencing on his Sherburne County theft conviction, the district court denied the motion to dismiss in which appellant claimed that his theft charge in Sherburne County was part of the same behavioral incident as the receiving stolen property conviction in Mille Lacs County.  Appellant then waived his right to a sentencing jury and the court sentenced him to an executed 60-month term under the career offender provisions of Minn. Stat. § 609.1095, subd. 4 (2004).  The sentence represented an upward departure from a presumptive sentence of 21 months.

D E C I S I O N

1.

            There is merit in appellant’s proposition, not challenged by the state, that he did not properly waive his rights to a lawful factual determination on his career-offender status.  See State v. Zulu, 706 N.W.2d 919, 926 (Minn. App. 2005) (holding that when a defendant is agreeing to a court determination of aggravating factors of a sentence enhancement, in order for a waiver of a jury trial to be knowing, voluntary, and intelligent “the defendant must specifically waive the right to testify, to have the witnesses testify in open court in the defendant’s presence, to cross-examine the witnesses, and to require any favorable witnesses to testify . . . .”). 

            Appellant asserts that the district court’s sentence, if his theft conviction is upheld, must be reduced to a presumptive guideline term because Minn. Stat. § 609.1095, subd. 4 (2004) is unconstitutional after Blakely. The career offender statute is unconstitutional as applied to appellant, but we remand for sentencing consistent with State v. Chauvin, 723 N.W.2d 20 (Minn. 2006). 

            When first examining the constitutionality of the statute, in State v. Adkins, this court held that Minn. Stat. § 609.1095, subd. 4, is unconstitutional to the extent that it authorizes a judicial finding that a pattern of criminal conduct exists and therefore the statute is “unconstitutional as applied to appellant’s sentence.”  706 N.W.2d 59, 64 (Minn. App. 2005).  While Adkins was pending, the Minnesota legislature amended Minn. Stat. § 609.1095, subd. 4, to include new requirements for sentencing departures, but this statute was effective for offenses after August 1, 2005, and does not affect appellant’s conviction.       

            Turning to appellant’s assertion that his sentence must be reduced to the presumptive sentence, we look to the recent supreme court decision in Chauvin.  The Chauvin court recognized inherent judicial authority to impanel a sentencing jury to make factual findings on aggravating sentencing factors, where the court, before the legislature had occasion to provide for an alternate process, could not otherwise effectuate the legislative policy to depart from the presumptive sentence in appropriate cases.  Id. at 21.  The court stated that in the time prior to the legislative changes, district courts had inherent judicial authority to empanel sentencing juries, since this process was necessary after Blakely to achieve a unique judicial function of setting forth a procedure for sentencing departures, and this was done in a fashion that effectuated rather than infringed on the legislative function.  Id.at 24.

            The supreme court noted that Chauvin was sentenced after Blakely was decided, but before the legislative changes, and he was given a jury trial on the aggravating factor.  Id. at 28.  Although previously the supreme court had declined to authorize the exercise of inherent judicial authority to impanel sentencing juries in State v. Shattuck II, 704 N.W.2d 131 (Minn. 2005) and State v. Barker, 705 N.W.2d 768 (Minn. 2005), the defendants in these cases were sentenced before Blakely.   “More important, the state in Shattuck II and Barker was asking us to recognize the district court’s inherent judicial authority to impanel a sentencing jury . . . , but we made a policy decision out of deference to the legislature to not exercise that power.”  Chauvin, 723 N.W.2d at 28.

            Since appellant’s sentencing occurred after Blakely and prior to the legislative changes, and because appellant waived a sentencing jury, we follow the rationale in Chauvin and agree with the state’s position that the district court’s exercise of its inherent authority to empanel a jury on sentencing was not precluded by Shattuck II or Barker or by reasons of comity to the legislature.  Thus we reverse and remand for the district court’s determination of whether to impose the presumptive sentence or to conduct proceedings, conforming with Blakely, on the question of an upward sentencing departure. 

2.

            Appellant also argues that he cannot be convicted for the theft charges in Sherburne County because Minn. Stat. § 609.035, subd. 1 (2004) prevents a court from imposing more than one sentence if a person’s conduct constitutes more than one offense and these offenses are part of the same behavioral incident.  A person may not be convicted of both theft and receiving stolen property with respect to property involved in the same transaction.  State v. Lawrence, 312 N.W.2d 251, 252 (Minn. 1981); see also Minn. Stat. § 609.04, subd. 1 (2004) (a defendant “may be convicted of either the crime charged or an included offense, but not both”).  The district court’s determination of whether multiple offenses are part of a single behavioral incident will not be overturned unless clearly erroneous.  State v. Carr, 692 N.W. 2d 98, 101 (Minn. App. 2005).

            The record indicates that the receiving stolen property offense from Mille Lacs County dealt with only one of the Sherburne County thefts for which appellant was charged.  The Sherburne County complaint was based on that theft and two additional thefts.  The district court correctly found that any two of the thefts clearly would total $500 or more, the minimum amount required for the theft conviction.  Minn. Stat. § 609.52, subd. 3(3)(a) (2004).  Thus, the record supports a finding that these were separate incidents for sentencing purposes.  Since the district court did not clearly err in determining that appellant’s theft offenses were separate behavioral incidents from the receiving offense, we affirm his convictions.  

            Affirmed in part, reversed in part, and remanded.