This opinion will be unpublished and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

A05-2462

 

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Maurice Scissiom,

Appellant.

 

 

Filed May 1, 2007

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. K6-04-4091

 

 

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

 

James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal from a sentence for felony theft has been remanded by the supreme court for reconsideration in light of that court’s decision in State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  Based on the supreme court’s holding in Chauvin, we affirm.

D E C I S I O N

            Whether the district court had inherent authority to impanel a sentencing jury is a legal issue, which this court reviews de novo.  See State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  Moreover, the supreme court’s remand presents a question, involving the application of its Chauvin decision to this case, that was not before the district court.

Appellant Anthony Maurice Scissiom pleaded guilty to felony theft (value over $500) under a plea agreement allowing him to retain the right to a jury determination whether the state had proven grounds to enhance his sentence under the career-offender statute.  Scissiom stipulated that he had the five prior felony convictions required by the career-offender statute.  See Minn. Stat. § 609.1095, subd. 4 (2004).  A sentencing jury was impaneled and found that Scissiom’s current offense was committed as part of a pattern of criminal conduct.  The district court then sentenced Scissiom to 48 months, a double upward departure from the presumptive sentence of 24 months, under the career-offender statute.

The supreme court in Chauvin held that the district court in that case “had the inherent judicial authority to impanel a sentencing jury.”  723 N.W.2d at 24.  As Scissiom argues, however, the facts of this case are somewhat different.  In Chauvin, the trial court used a sentencing jury before the legislature had enacted any amendment on the subject.  Id. at 23-24.  The legislature in June 2005 enacted an amendment to the career-offender statute allowing jury sentencing determinations under that statute.  See Minn. Stat. § 244.10 (2006).  The district court here impaneled the sentencing jury on September 14, 2005, well after that June 2005 enactment.  Scissiom argues that, although the 2005 amendment did not apply to sentencing for his offense, its enactment prior to his sentencing is sufficient to distinguish this case from Chauvin. 

This court has recently addressed that argument in State v. Boehl, 726 N.W.2d 831 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007).  In Boehl, this court held that Chauvin provides inherent judicial authority to impanel a sentencing jury even after the legislature passed the 2005 amendments, as long as those amendments are not applicable to the case before the court, leaving the court without a statutory mechanism for sentencing in compliance with Blakely.  Id. at 841-42.

This court in Boehl noted that when Boehl’s resentencing came up on remand “the legislature had amended aspects of the Minnesota sentencing scheme in response to Blakely.”  726 N.W.2d at 838.  But those 2005 amendments did not apply to Boehl’s 1996 offense, therefore squarely raising the issue of the district court’s inherent judicial authority.  Id.  The Boehl court concentrates on the legislature’s failure to provide “a constitutional mechanism” to sentence in compliance with Blakely.  Id. at 839 (emphasis added).  It acknowledges the defense argument that, following the 2005 statutory amendments, the legislature was “no longer silent.”  Id.  But it rejects this argument, stating that “the legislature has remained silent regarding how a district court may fulfill this statutory mandate (to depart in appropriate patterned-sex-offender cases) in a constitutional manner” for pre-August 1, 2005 offenses.  Id. (emphasis added).

            The Boehl court extends Chauvin’s approval of inherent judicial authority to the time period after the 2005 statutory amendments by this emphasis on the lack of a constitutional sentencing mechanism.  Id. at 840.  Moreover, the Boehl court does not focus on the general question of whether there has been any legislative enactment; it requires an enactment applicable to a particular defendant in order to bar the use of inherent judicial authority.  Id.  Thus, it finds the situation for Boehl’s sentencing indistinguishable from that in Chauvin because “there [was] not a constitutionally sound mechanism for sentencing enhancement under the patterned-sex-offender statute applicable to Boehl.”  Id. (emphasis added).

Under Boehl’s reading of Chauvin, then, it was “necessary” for the district court in this case to impanel a sentencing jury on remand because, although the 2005 amendments had been enacted, they did not apply to Scissiom’s offense.

Finally, Scissiom argues that the 2005 statutory amendments reflected a legislative intent that pre-August 1, 2005 offenses should not be enhanced under the career-offender statute using a sentencing-jury mechanism.  But Boehl has rejected this argument that impaneling a sentencing jury conflicts with legislative intent, noting the 2005 legislature was concerned only with ex post facto problems, and the supreme court in Hankerson has held there are no such problems with retroactive application of the 2005 amendments.  See id. at 841 (citing Hankerson v. State, 723 N.W.2d 232, 242 (Minn. 2006)).

Thus, we conclude that the district court had inherent judicial authority to impanel a sentencing jury in this case to determine facts under the career-offender statute.  Therefore, the upward sentencing departure imposed on Scissiom must be affirmed.

Affirmed.