This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2325

 

State of Minnesota,

Respondent,

 

vs.

 

David Royster,

Appellant.

 

Filed April 3, 2007

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 04084039

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Timothy Mulrooney and Jane E. Rydholm, Special Assistant State Public Defenders, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant).

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Collins, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges the district court’s aggravated durational departure from the presumptive sentence, arguing that it was improper for the court to use a jury to determine an aggravating factor under the career-offender statute.  He also raises various issues in his pro se brief.  Because the district court had the inherent authority to submit a departure factor to the jury, and because the pro se issues are without merit, we affirm.

FACTS

            Respondent State of Minnesota charged appellant David Royster with two counts of second-degree burglary and alleged in its complaint that Royster was a career offender under Minn. Stat. § 609.1095, subd. 4 (2004).

            In a trial on only the burglary charges, a jury found Royster guilty of one count and not guilty of the other.  The district court then determined that it would submit to the jury the issue of whether Royster’s current offense was part of a pattern of criminal conduct within the purview of the career-offender statute.  Royster objected on the ground that the law did not permit a jury to make this determination.  The court overruled the objection.  Royster then moved to impanel a new jury for this proceeding, but the court denied the motion.

            Royster stipulated that his current offense was a felony and that he had five or more prior felony convictions, as required by the career-offender statute.  The state then presented evidence of the circumstances of Royster’s prior convictions which consisted of two burglaries, one attempted burglary, two receiving stolen goods, and one attempt to offer forged checks, all between 1995 and 2002.

            Royster testified on his own behalf, indicating that he is an ordained minister, runs a prison ministry, and is the executive director of a nonprofit corporation that operates halfway houses.

            The jury found that the current burglary had been committed as part of a pattern of criminal conduct.  The court sentenced Royster under the career-offender statute to an executed term of 108 months, which was an aggravated durational departure from the presumptive sentence of 48 months.  Contending that the departure was improper and the use of a jury to decide the departure factor was not authorized by law, Royster appealed.

D E C I S I O N

 

Sentencing Departure

            Royster argues that the district court lacked inherent authority to impanel a jury to make the findings required by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),  when the version of the career-offender statute in effect at the time of his offense did not authorize a sentencing jury.  Whether the district court has authority to implement a particular court procedure presents a question of law, which this court reviews de novo.  State v. Kendell, 723 N.W.2d 597, 610 (Minn. 2006). 

            The Minnesota Supreme Court has held that a district court had inherent authority to impanel a sentencing jury before the legislature expressly authorized the use of sentencing juries.  State v. Chauvin, 723 N.W.2d 20, 24 (Minn. 2006); see also State v. Kendell, 723 N.W.2d at 610 (citing Chauvin for the holding “that a district court had inherent judicial authority to respond to Blakely by impaneling a jury to make factual findings on aggravating sentencing factors when the legislature had not yet amended the unconstitutional judicial-fact-finding portions of the Minnesota Sentencing Guidelines in response to Blakely.”).  In Kendell, the supreme court held that following Blakely, the district court properly submitted a special interrogatory to a jury for findings that the defendant met the requirements for enhanced sentencing under the dangerous-offender statute, Minn. Stat. § 609.1095, subd. 2 (2004).  Kendell, 723 N.W.2d at 610. 

            Royster argues, however, that even if the use of juries for aggravated sentencing was permissible prior to legislative authorization, the district court lacked authority to impanel a sentencing jury after the legislature had acted to authorize sentencing juries, but when the amended version of the statute was not effective for offenses committed at the time of appellant’s offense.  The version of the career-offender statute under which appellant was sentenced allowed the district court to impose an upward departure based on its finding that the offender “has five or more felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1035, subd. 4 (2004).  In 2005, the Minnesota legislature amended the career-offender statute to provide that

the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the factfinder determines that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct. 

 

Minn. Stat. § 609.1095, subd. 4 (Supp. 2005) (emphasis added).  This version of the statute, however, applies to crimes committed on or after August 1, 2005.  See 2005 Minn. laws ch. 136, art. 16, at 1118.  Because appellant’s crime was committed in September 2004, the amended version of the statute did not apply to sentencing for his offense. 

            This court has recently addressed this issue in the context of the patterned-sex-offender statute, Minn. Stat. § 609.1352 (1996).  State v. Boehl, 726 N.W.2d. 831, 833, (Minn. App. 2007).  In Boehl, this court held that the district court had inherent judicial authority to impanel a sentencing jury under the patterned-sex-offender statute when the legislature subsequently amended the statute to provide for a sentencing jury.  Id.at 840.  According to Boehl, when the legislature remains silent on how a district court may fulfill the statutory mandate of requiring an enhanced sentence for patterned sex offenders because it has not provided guidance on the proper sentencing procedure for patterned sex offenders who committed their offenses before August 1, 2005 (the effective date of the amendment), the district court may impanel a sentencing jury to fulfill the legislature’s intent.  Id.at 841-42.  This court in Boehl determined that because no legislative lawful fact-finding procedure existed to which the district court could have given deference, impaneling a sentencing jury does not infringe on the legislative function of creating a sentencing scheme to comport with the United States Constitution.  Id. at 840 (citing Chauvin, 723 N.W.2d at 28-29).  The Boehl court also observed that the legislature has included the patterned-sex-offender statute in the legislative authorization to use sentencing juries when the state requests an aggravated departure from the Minnesota Sentencing Guidelines.  See id. at 840 (citing Minn. Stat. § 244.10, subd. 5 (as amended 2006)).  Finally, the court cited legislative intent, as gleaned from the 2005 amendment to the patterned-sex-offender statute requiring the fact-finder to make findings requiring the requisite aggravating factors, see Minn. Stat. § 609.108, subd. 1 (Supp. 2005), and legislative history, to support its decision.  Id.at 840-41.

            We adopt the reasoning in Boehl as applied to Royster’s sentencing under the career-offender statute and conclude that the district court did not err by impaneling a sentencing jury to determine whether Royster’s crime was committed as part of a pattern of criminal conduct so as to support an aggravated sentence.  Unlike the patterned-sex-offender statute in Boehl, the career-offender statute, Minn. Stat. § 609.1095, subd. 4, does not require, but only permits, the imposition of an upward durational departure on findings that the defendant has five or more felony convictions and that the present offense was committed as part of a pattern of criminal conduct.  But this difference is not material, and we conclude that the legislative enactment of the career-offender statute, with its provision for aggravated sentencing, evinces a legislative intent to provide a mechanism for that sentencing.  Following the reasoning in Boehl, we conclude that because the legislature had not provided a procedure for effectuating its intent in the period between the Blakely decision and the effective date of the 2005 statute as revised to include the jury’s fact-finding role in determining aggravating sentencing factors, the district court may impanel a sentencing jury to fulfill that intent.  We also recognize, as noted in Boehl, that Minn. Stat. § 244.10, subd. 5, has been amended explicitly to apply to “‘the state’s request for an aggravated sentence under any sentencing enhancement statute . . . .’”  Boehl, 726 N.W.2d at 840 n.4 (quoting Minn. Stat. § 244.10, subd. 5(a) (2006)).  Although not determinative, this amendment additionally reflects legislative intent to allow impaneling a sentencing jury under the career-offender statute.

            We therefore affirm the district court’s decision to impanel a sentencing jury to determine the aggravating factor of a pattern of criminal conduct under Minn. Stat. § 609.1095, subd. 4 (2004). 

Pro Se Issues

 

            The burglary of which Royster was convicted involved a house that was under renovation.  Various materials and fixtures had been removed from the house.  Witnesses testified to seeing Royster’s station wagon at various times in the vicinity of the house, and an antiques re-seller identified Royster as the driver of the station wagon and as a person who tried to sell architectural fixtures to him.

            Royster contends in his pro se brief that one witness lied, that no evidence linked him to the burglary, and that his attorney was ineffective in assisting him with his defense.

            The determination of the “credibility of witnesses is generally the exclusive province of the jury.”  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  Inconsistencies in testimony do not mandate a reversal.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  Royster’s bare assertion that a witness lied is insufficient to overcome the deference we must give to the jury’s determination of credibility.

            Royster implies that his conviction was based on circumstantial evidence and, therefore, cannot stand.  A conviction may be based on circumstantial evidence, which is weighed the same as direct evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is only when the evidence is entirely circumstantial and is consistent with a rational hypothesis other than guilt that the conviction may be overturned.  Robinson, 604 N.W.2d at 366.  The evidence linked Royster’s car to the scene and to materials taken from the burglarized building.  The evidence showed the identity of the car’s driver as being Royster.  He has not demonstrated that there is a rational hypothesis other than guilt.

            Finally, Royster argues that his trial counsel failed to provide effective assistance.  A party alleging ineffective assistance of counsel must show that counsel’s performance   “‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 94, 104 S. Ct. 2052, 2064, 2068 (1984)).  The record provides no indication that the performance of defense counsel, who argued successfully for suppressing Spreigl evidence, moved for a judgment of acquittal, and challenged the district court’s decision to impanel a sentencing jury, was objectively unreasonable.  We affirm Royster’s conviction. 

            Affirmed.