A05-557

State of Minnesota,

Respondent,

vs.

Darrell Wood,

Appellant.

Filed April 3, 2007

Affirmed in part, reversed in part, and remanded

Willis, Judge

Ramsey County District Court

File No. K4-04-1788

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s denial of his petition for postconviction relief, alleging ineffective assistance of counsel, and also appeals from the sentences imposed for his convictions of possession of a firearm by an ineligible person and three counts of second-degree assault with a dangerous weapon. We affirm the district court’s denial of postconviction relief on appellant’s ineffective-assistance-of-counsel claim. We conclude, however, that the district court erred in sentencing appellant, and we remand for the correction of appellant’s sentences.

FACTS

A jury convicted appellant Darrell Wood of one count of possession of a firearm by an ineligible person, in violation of Minn. Stat. งง 624.713, subd. 1(b), 609.11, subd. 5(b) (2002); and three counts of second-degree assault with a dangerous weapon, in violation of Minn. Stat. งง 609.222, subd. 1, .11, subd. 5(a) (2002). At trial, Darlene Williams testified that five shots were fired through the second-story windows of a St. Paul apartment that she occupied with her ten-year-old child and her fiance, Allen Wheatley. Wheatley testified that immediately after the shots were fired, he looked out a window and saw a person whom he recognized as Wood running away from the scene. Wheatley later also identified Wood from a photo array. Outside the apartment building, police found two 9-mm shell casings, which testing showed were fired from a gun that was recovered from an apartment rented by a woman friend of Wood’s, Lanel Strowder.

Williams testified that earlier on the day of the assault, Wood had asked her to cash a check at a bank branch in a grocery store in Eagan. Wood drove Williams and Strowder in a van to the store. Williams testified that she failed in an attempt to cash the check but Wood believed that she was lying. She testified that Wood pulled her out of the van, hit her, and left her so that she had to take a taxi home.

Williams testified that when she arrived back at her apartment building, Wood and Strowder were outside in the van, and she began arguing with them. Wheatley, who was outside taking out the garbage, noticed the argument and began to fight physically with Wood. Williams also challenged Strowder to fight. Williams then went up to the apartment and brought back a knife sharpener, which she threw at the van, breaking its rear window. Wheatley testified that as the van drove off, he heard a male voice say that he would “be back” and that it was “not over.”

Williams gave the van’s license-plate number to police, who traced the van’s ownership to Wood and Strowder. They obtained a warrant to search an apartment in Chanhassen rented by Strowder. When police executed the search warrant, they found in the garage of the apartment a case containing a loaded 9-mm pistol; 9-mm ammunition; a scented sheet for use in a clothes dryer; $14,000 in cash; and four syringes and a spoon coated with an unidentified residue. Inside the apartment, police found two baggies containing marijuana and a Polaroid photograph of an unspecified amount of cash with the words “Cash and Diamond” written on the photograph. Williams testified that she knew Wood by the nickname “Cash” and Strowder by the nickname “Diamond.”

At trial, the state questioned a police witness regarding the significance of the clothes-dryer sheet, eliciting testimony that such sheets are often used to mask the scent of narcotics from detection by drug-sniffing dogs. Defense counsel did not object to the questioning. The state also introduced evidence, without objection, of the money found in the garage and the photograph of cash found in the apartment. A police officer testified that Wood denied knowledge of any items found in the search except the money in the garage, which Wood told police was sent to him by his family.

The state did not introduce evidence of the syringes, the spoon coated with residue, or the baggies containing marijuana. But on cross-examination, defense counsel elicited testimony on these items, asking police witnesses whether the substance on the spoon had been tested and whether the syringes or baggies had been dusted for fingerprints. Two officers testified that they did not know whether the items had been tested or dusted for fingerprints.

The jury convicted Wood on all four counts. The district court sentenced him to the mandatory-minimum 60-month term on the felon-in-possession conviction; concurrent terms of 51 and 60 months, respectively, on the first two assault convictions; and a mandatory-minimum term of 36 months on the third assault conviction to run consecutive to the sentences for the first three counts.

Wood filed a direct appeal from his convictions, which was stayed to allow him to file a postconviction petition. After an evidentiary hearing, the postconviction court denied Wood’s ineffective-assistance claim, and this court lifted the stay of Wood’s direct appeal.

D E C I S I O N

Wood challenges the postconviction court’s determination that Wood was not denied the effective assistance of counsel. An appellate court reviews postconviction decisions regarding ineffective-assistance-of-counsel claims de novo because they involve mixed questions of law and fact. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

The right to effective assistance of counsel is a part of the Sixth Amendment right to a fair trial under the United States Constitution. U.S. Const. amend. VI; State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64 (1984)). A party alleging ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness and that a reasonable probability exists that, but for counsel’s unprofessional errors, the proceeding would have had a different result. Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068; Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). There is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). A party seeking to establish the prejudice prong of Strickland must prove, by a preponderance of the evidence, that he suffered actual prejudice. State v. Blanche, 696 N.W.2d 351, 376 (Minn. 2005).

“To allow counsel flexibility to represent a client to the fullest extent possible,” this court’s review of an attorney’s performance “does not include reviewing attacks on counsel’s trial strategy.” Id. (quotations omitted). A decision regarding what evidence to present to the jury is a matter of trial strategy. Id. (citing State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003)). Similarly, counsel’s failure to object to properly admitted evidence does not constitute unreasonable performance. Id. (citing State v. Asfeld, 662 N.W.2d 534, 546 (Minn. 2003)).

Wood argues that his trial counsel made objectively unreasonable errors prejudicial to Wood by failing to challenge evidence and by eliciting testimony that permitted an inference that Wood was using or distributing illegal drugs. He argues that his counsel’s decisions did not reflect a trial strategy and were irrelevant to determining Wood’s guilt on the charges against him. Specifically, Wood argues that counsel had no strategic reason not to challenge the state’s evidence of the clothes-dryer sheet found with the gun, the $14,000 in cash found in the garage, and the photograph of the cash with Wood’s alias written on the photograph. Wood also challenges his counsel’s decision to elicit police testimony regarding the spoon with residue, the syringes, and the baggies containing marijuana that were found at the Chanhassen apartment.

After a hearing, the postconviction court found that defense counsel’s testimony showed that he had reasonable explanations for not objecting to the state’s evidence and for eliciting the testimony. The postconviction court found that Wood’s trial counsel “attempted to raise doubt about [Wood’s] participation in the shooting by asking questions that may lead jurors to infer that others having access to the Chanhassen residence were responsible for the crimes charged.” Additionally, the postconviction court determined that Wood failed to demonstrate that there was a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different.

Because the record does not show that Wood was involved in drug activity, it supports the postconviction court’s finding that defense counsel’s introduction of drug-related testimony represented a trial strategy designed to create an inference that another person was involved in that activity and may also have been responsible for the crime. And counsel’s failure to object to properly admitted evidence of cash found at the Chanhassen residence similarly reflects trial strategy and does not constitute ineffective assistance. See Asfeld, 662 N.W.2d at 546. Further, even if we were to assume that counsel made objectively unreasonable errors, Wood has failed to establish that these errors affected the result of the proceeding. See Gates, 398 N.W.2d at 561. Ample evidence in the record supports Wood’s conviction, including Wheatley’s positive identification of Wood from a photo array and expert testimony that the gun found at the Chanhassen apartment fired the shells whose casings were found at the scene of the assault. We therefore conclude that the postconviction court did not err by denying Wood’s ineffective-assistance claim.

II.

Wood alleges several sentencing errors on count one, the felon-in-possession conviction, as well as on counts two through four, the convictions of second-degree assault with a dangerous weapon involving each of the three people who were in the apartment at which shots were fired.

We conclude, and the state concedes, that the district court erred in the manner in which it applied the sentencing method described in State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). Hernandez permits sentencing on the same day for multiple offenses that are not part of the same behavioral incident; the court may increase the defendant’s criminal-history score for each successive current conviction as sentencing progresses. Id. at 481. This sentencing method does not apply, however, if the offenses are part of the same behavioral incident. State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997). The district court applied Hernandez to increase Wood’s criminal-history score in sentencing on the count-two assault conviction based on the sentence previously imposed for the felon-in-possession offense. But as Wood points out, the firearms offense was part of the same behavioral incident as the count-two assault charge. Therefore, the district court erred by increasing Wood’s criminal-history score to 5.5 for the purpose of sentencing on count two. Based on a corrected criminal-history score of 4, the presumptive sentence for Wood’s count-two assault conviction should have been 45 months, rather than 51 months. For the same reason, the presumptive sentence for the count-three assault conviction, which was part of the same behavioral incident, should have been 45 months, rather than 60 months.

We also conclude, and the state concedes, that the district court erred by sentencing the count-four assault conviction consecutively to the firearms conviction. Because the firearms offense is not an offense against a person, it is not an offense for which permissive consecutive sentencing is authorized without a departure, and the district court did not indicate its intention to depart or a basis for departure. See Minn. Sent. Guidelines II.F.2. Therefore, the sentence for the count-four assault conviction should run concurrently with the sentence for the firearms conviction.

Because of these errors, Wood’s sentence must be corrected to reflect a mandatory-minimum sentence of 60 months on count one, the firearms conviction; concurrent sentences of 45 and 45 months, respectively, on counts two and three, the first two assault convictions, to be served concurrently with the sentence for the firearms conviction and with one another; and a mandatory-minimum sentence of 36 months on count four, the third assault conviction, to be served consecutively to the first two assault sentences. Wood’s aggregate sentencing thus would be 60 months on the firearms conviction and 36 months on the last assault conviction to run consecutive to the first two assault convictions. We remand to the district court for the correction of Wood’s sentences.

III.

Wood also contests the duration of the sentence imposed on count four, the last assault conviction. He argues that the district court’s imposition of the 36-month mandatory-minimum sentence under Minn. Stat. ง 609.11, subd. 5(a) (2002), without a jury finding that he possessed or used a firearm in the commission of the assault violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Wood also alleges that the district court committed a Blakely violation by basing its sentencing enhancement for the count-four assault on a finding that Wood committed the firearms offense. Whether a Blakely error occurred is a legal question, which this court reviews de novo. State v. Dettman, 719 N.W.2d 644, 648-49 (Minn. 2006).

In Blakely, the United States Supreme Court held that a sentencing judge may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S. Ct. at 2537. Blakely applies to upward departures from the presumptive sentence under the Minnesota Sentencing Guidelines. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).

The state argues that Wood failed to raise a Blakely issue before the district court and therefore may not raise it on appeal. But the record shows that Wood did raise the application of Blakely at sentencing and thus properly preserved the issue for appellate review. Further, even if the objection had not been raised in the district court, the Minnesota Supreme Court has determined “that a defendant’s failure to object on Blakely grounds at the district court does not forfeit appellate review of an alleged Blakely error.” Dettman, 719 N.W.2d at 648 (citing State v. Osborne, 715 N.W.2d 436, 446 (Minn. 2006)).

After Blakely, the Minnesota Supreme Court held that the imposition of a mandatory-minimum sentence under Minn. Stat. ง 609.11 based on the district court’s determination that a firearm was used or possessed during the commission of an offense violated a defendant’s right to a jury trial on that sentencing factor. State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005). Therefore, under Barker, for the district court to impose the 36-month mandatory-minimum sentence on the count-four assault conviction, a jury was required to find that Wood, “at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm . . . .” Minn. Stat. ง 609.11, subd. 5(a).

The state maintains that “a finding that [Wood] was in possession of a firearm while committing the assaults constituted a finding that [Wood] possessed a firearm for purposes of the factual findings supporting a sentence on the assault charges.” But the jury did not specifically determine that Wood possessed a firearm when he committed the assaults. Rather, the jury found Wood guilty of count one, possession of a firearm by an ineligible person, and also guilty of counts two through four, second-degree assaults with a dangerous weapon. Although the jury instructions for the assault counts state that a firearm is a dangerous weapon, it is logically possible that another dangerous weapon could have been used to commit the assaults. Thus, the jury’s verdict does not conclusively establish that it found that Wood possessed or used a firearm in committing the assaults. We conclude, therefore, that the district court erred by failing to submit the aggravating factor of use of a firearm during a crime to a jury to support the imposition of the mandatory-minimum sentence for that offense under Minn. Stat. ง 609.11, subd. 5(a).

Recently, however, the United States Supreme Court has held that Blakely errors are not structural and are subject to harmless-error analysis. Washington v. Recuenco, ___U.S.___, 126 S. Ct. 2546, 2553 (2006); see also State v. Chauvin, 723 N.W.2d 20, 30 (Minn. 2006). “An error is harmless beyond a reasonable doubt if the verdict was surely unattributable to the error.” Chauvin, 723 N.W.2d at 30-31 (quotation omitted).

Wood argues that the sentencing error was not harmless because it increased his sentence to a 36-month executed sentence from a 21-month stayed sentence, the presumptive guidelines sentence for the count-four assault conviction if it were sentenced consecutively to assault counts two and three only. See Minn. Sent. Guidelines cmt. II.F.02. But undisputed evidence establishes that several shots were fired through the windows of an apartment occupied by three people. There was no evidence that any weapon other than a firearm was used to commit the assaults. Thus, the only reasonable inference from the jury’s verdicts that Wood committed three assaults with a dangerous weapon is that Wood used a firearm to commit the assaults, and it appears certain that the jury would have found the aggravating factor of firearm use. We conclude, therefore, that this error was harmless beyond a reasonable doubt. Cf. Dettman, 719 N.W.2d at 655 (concluding that Blakely error was not harmless when a sentencing error increased the length of the defendant’s sentence by 72 months, and the supreme court could not “say with certainty that a jury would have found the aggravating factors used to enhance [the defendant’s] sentence”).

Wood also alleges that the district court committed an additional Blakely violation by using the conduct underlying Wood’s conviction of the firearms offense to support the finding required to impose the mandatory-minimum sentence on the count-four assault conviction. “[C]onduct underlying one conviction for which a defendant was sentenced cannot be used to support an upward sentencing departure for a separate conviction.” Osborne, 715 N.W.2d at 446. The district court, at sentencing, referred to the jury’s finding that Wood possessed a gun in Ramsey County on the date of the incident as supporting the jury verdicts “on each count.” But the specific finding of possession of a firearm was made only on the firearms offense, not on the assault offenses. The district court therefore erred by using the finding on the firearms offense to support its imposition of an aggravated sentence on the count-four assault conviction. We conclude, however, that this error was also harmless beyond a reasonable doubt because, as we have noted above, it appears certain that, on this record, a jury would have found the aggravating factor of firearm use in the commission of the assault.

Wood argues finally that the district court’s findings do not meet the requirements of the applicable version of Minn. Stat. ง 609.11, subd. 7, that required the court to “determine[] . . . on the record at the time of the verdict” the issue “of whether the defendant . . . at the time of commission of an offense . . . used a firearm . . . or had in possession a firearm . . . .” Cf. 2006 Minn. Laws ch. 260, ง 13, at 717-18 (amending statute, following Barker, to provide that “factfinder” rather than “district court” must make finding of firearm use, as applied to crimes committed on or after August 1, 2006). Wood argues that the district court’s findings were insufficient because (1) they were made at the time of sentencing, rather than at the time of the verdict, and (2) they did not constitute findings made specifically by the court, but only referred to the jury verdicts.

Because the district court stated a belief that its findings satisfied Blakely, it is unclear whether the district court based its imposition of the mandatory-minimum sentence on its entry of findings under Minn. Stat. ง 609.11, subd. 7. But even if Wood is correct, absent prejudice to him, the timing of the district court’s findings is a technical error, which does not require reversal. See State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 393 (1954). Wood has failed to show that the entry of the findings at the time of sentencing prejudiced him. Further, the district court stated at sentencing that (1) Wood “was charged specifically with assault in the second degree with a firearm” and (2) the jury instructions for the assault charges did not include any “other kind of dangerous weapon . . . because there wasn’t any other relevant dangerous weapon to consider in this particular case, and all of the evidence that was submitted was totally pertaining to the use of a firearm.” We conclude that these remarks sufficiently constitute a finding that Wood used a firearm at the time of the assaults.

Affirmed in part, reversed in part, and remanded.