This opinion will be unpublished and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

A06-7

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Edward Love, Sr.,

Appellant.

 

Filed May 15, 2007

Affirmed

Hudson, Judge

 

Ramsey County District Court

File No. K5-05-823

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

A jury convicted appellant Charles Edward Love, Sr., of one count of burglary in the second degree and four counts of burglary in the third degree.  Appellant challenges his sentence, which was an upward durational departure, arguing that the district court lacked inherent authority to submit aggravating factors to a jury during the sentencing phase of the trial and that subsequent legislative authorization is not applicable.  Appellant also contends that the district court violated the ex post facto clause by convening a jury for the sentencing phase of the trial.  Because the district court did not err in sentencing appellant, we affirm.

FACTS

Appellant was charged with two counts of burglary in the second degree and four counts of burglary in the third degree, in violation of Minn. Stat. §§ 609.582, subds. 2(d), 3, .1095, subd. 4 (2004).  The dates of the six alleged burglaries spanned from January 24, 2005, to February 25, 2005.

            The jury trial began on August 1, 2005, and the jury found appellant guilty on counts one, two, four, five, and six.  The jury acquitted appellant on count three, burglary in the second degree.  The trial was bifurcated.  Before the second phase began, the parties stipulated that appellant had at least five prior felony convictions for purposes of career-offender sentencing under Minn. Stat. § 609.1095.  During the sentencing phase, after hearing evidence regarding appellant’s prior robbery and theft-related convictions, the jury found beyond a reasonable doubt that appellant committed each of the five instant offenses as part of a pattern of criminal conduct. 

            The district court sentenced appellant on October 6, 2005.  Appellant objected to the bifurcated trial procedure and requested that presumptive sentences be imposed.  The district court denied the request and imposed aggravated durational departure sentences of 120 months for count one and 60 months for each of the other four counts, each sentence to run concurrently.

            This appeal follows.

D E C I S I O N

I

Appellant argues that the district court did not have the authority to convene a sentencing jury to determine aggravating sentencing factors.  Whether the district court has the authority to do so is a question of law that this court reviews de novo.  State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006) (resolving, in the affirmative, the issue of whether a district court has inherent judicial authority to empanel a sentencing jury).

Appellant was sentenced under the 2004 career-offender statute, which states:

Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a Sentencing Guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record 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 (2004) (emphasis added).  In 2005, the legislature amended the career-offender statute to comply with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and authorized the fact-finder, rather than the judge, to make the findings required for career-offender sentencing.  2005 Minn. Laws ch. 136, art. 16, § 12.  The 2005 amendment to the statute applies to crimes committed on or after August 1, 2005.  Id.  Because appellant committed his crimes from January 24, 2005 to February 25, 2005 (all before August 1, 2005), the 2005 amendment is inapplicable.  And because the 2004 statute did not authorize sentencing juries, appellant argues that the district court erred by bifurcating the trial and asking the jury to determine whether there was a pattern of criminal activity. 

We reject appellant’s argument because in Chauvin, the Minnesota Supreme Court determined that the district court possesses inherent authority to empanel a sentencing jury to find sentencing factors.  723 N.W.2d at 24.

Here, just as in Chauvin, the district court bifurcated the trial.  After phase one of the trial in which the jury found appellant guilty of five of the six counts with which he was charged, the district court submitted aggravating sentencing issues to the jury during phase two of the trial.  The jury found beyond a reasonable doubt that each of these offenses was committed as part of a pattern of criminal conduct.  Consequently, the district court imposed a sentence that was an upward durational departure.  The district court acted properly under its inherent authority to convene a sentencing jury. 

Appellant also argues that the 2004 career-offender statute is unconstitutional, because it allows judicial fact-finding to increase the presumptive sentence.  Minn. Stat. § 609.1095, subd. 4 (2004).  Appellant likens the career-offender statute to Minn. Stat. § 609.109, subd. 4 (2004), which the Minnesota Supreme Court held was unconstitutional, because the statute “authorize[d] the district court to make such an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury.”  State v. Shattuck, 704 N.W.2d 131, 142–43 (Minn. 2005) (Shattuck II). 

Appellant’s constitutional challenge was resolved in State v. Kendell, a case in which the Minnesota Supreme Court applied Chauvin.  723 N.W.2d 597 (Minn. 2006).  In Kendell, the supreme court held that the district court properly exercised its inherent judicial authority by seeking a jury determination on sentencing factors, even though the legislature had neither amended section 609.1095 to bring the unconstitutional judicial-fact-finding provision into compliance with Blakely’s mandate, nor provided guidance as to how a district court should proceed in light of the statute’s constitutional deficiency.  Kendell, 723 N.W.2d at 609–10.  We recognize, however, that the present case differs slightly because here, the legislature had amended the statute.  But the amendments were not applicable to the period during which the instant offenses occurred.

However, this factual scenario was recently addressed in State v. Boehl, 726 N.W.2d 831 (Minn. App. 2007).  Here, as in Boehl, the legislature had already amended aspects of the Minnesota sentencing scheme in response to Blakely.  Id. at 838 (citing Minn. Stat. § 609.108, subd. 1 (Supp. 2005)); see Minn. Stat. § 609.1095, subd. 4 (Supp. 2005).  And, in both cases, the amendments applied only to offenders who committed offenses on or after August 1, 2005.  Boehl, 726 N.W.2d at 838; see e.g., 2005 Minn. Laws ch. 136, art. 16, § 12.  In Boehl, the effective date of the amendment deprived the district court of statutory authority to empanel a sentencing jury, but this court analyzed the question of whether the district court could exercise its inherent judicial authority to empanel a re-sentencing jury under those circumstances.  726 N.W.2d at 838.  Central to this court’s analysis was whether empaneling a re-sentencing jury was “(1) necessary (2) to achieve a unique judicial function (3) without infringing on equally important legislative or executive functions.”  Id. at 838–39 (quoting Chauvin, 723 N.W.2d at 24).  Boehl concluded that the district court had properly exercised its inherent judicial authority in such a situation.  Id. at 839–42.  In accordance with Boehl, we likewise conclude that the district court properly exercised its inherent judicial authority to empanel a sentencing jury.[1]

II

            Appellant argues that the district court’s application of the 2005 amendments in conjunction with amendments to Minn. Stat. § 244.10[2] to convene a sentencing jury, violated the ex post facto clause of the Minnesota and federal constitutions.  The Minnesota Supreme Court, in Hankerson v. State, rejected this argument, concluding that retroactively applying the 2005 amendments does not violate the ex post facto clause, because the amendments were procedural:

The effect of the 2005 amendments to section 244.10 was to change the roles of the judge and jury.  This is a procedural change that did not add aggravating factors, or increase the duration of the sentence authorized by a finding of aggravating factors.  Both at the time [defendant] committed the offense and after the 2005 amendments to section 244.10, [the offense] with aggravating factors was punishable as a crime and carried with it the possibility of [the sentence the district court imposed].  The amendments only changed the procedure used to establish the aggravating factors.

 

723 N.W.2d 232, 242 (Minn. 2006).  Furthermore, the supreme court explained that even if the section 244.10 amendments were not procedural, they still would not constitute ex post facto laws, as they do not serve as a disadvantage to the defendant, are not more onerous than the previous law, and actually serve to “vindicate, not violate,” the defendant’s “constitutional rights.”  Id. 

Appellant was on notice that the conduct he was about to engage in was illegal and carried possible punishments of 120 months for burglary in the second degree and 60 months for burglary in the third degree.  Minn. Stat. § 609.582, subds. 2, 3 (2004).  That notice satisfies the ex post facto clause.  Hankerson, 723 N.W.2d at 243.

III

In his pro se supplemental and reply briefs, appellant argues that by empaneling a sentencing jury, the district court violated the double jeopardy clause’s prohibition against serialized prosecutions and multiple punishments.  See Brown v. Ohio, 432 U.S. 161, 168–70, 97 S. Ct. 2221, 2226-27 (1977) (holding subsequent prosecution for greater offense after conviction of lesser-included offense violates double jeopardy clause).  “[A] ‘second prosecution’ can only occur after jeopardy from the first prosecution has terminated.”  Hankerson, 723 N.W.2d at 237.  In Hankerson, the court determined that a re-sentencing hearing is not a second prosecution.  Id. at 237.  Here, we are not even dealing with a re-sentencing hearing; instead, at issue is the original sentencing hearing.  The first prosecution certainly had not been concluded because the sentencing phase was not yet complete. 

            Appellant also contends that the state “never gave notice or charge in the complaint.”  Appellant argues that he was not given adequate notice that the state would seek to sentence him as a career offender, citing Apprendi v. New Jersey to support his position.  530 U.S. 466, 120 S. Ct. 2348 (2000).  However, the record shows that the amended complaint did cite the career-offender statute, and it referred to appellant’s prior convictions for theft, burglary, and robbery.  Even if the amended complaint had not indicated that respondent was seeking an aggravated sentence, the result would be the same; Apprendi does not require that the charging instrument provide notice of intent to seek an aggravated sentence.  Apprendi, 530 U.S. at 477, 120 S. Ct. at 2355 n.3. 

Furthermore, Chauvin rejected this notice argument, concluding that aggravating factors need not be alleged in the complaint and that, as long as the defendant is on notice of the maximum sentence that could be imposed, his due-process rights are not violated.  723 N.W.2d at 29–30.  Here, the amended complaint did indicate the state’s intention to pursue a more severe sentence.  The complaint cited Minn. Stat. § 609.1095, subd. 4, and it stated that appellant had “seven previous felony convictions, including two for burglary, one for theft, and two for aggravated robbery.  Complainant believes the current offenses were committed as part of a pattern of criminal conduct.”  Appellant’s constitutional due-process rights were not violated.

Because the district court possessed the authority to convene a sentencing jury to determine aggravating factors and because the sentence did not violate the ex post facto clause, we affirm. 

Affirmed.