This opinion will be unpublished and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

A06-1725

 

 

State of Minnesota,

Appellant,

 

vs.

 

Edgar Earl Lenear,

Respondent.

 

 

Filed May 22, 2007

Reversed and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 02081050

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for appellant)

 

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for appellant)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for respondent)

 

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant State of Minnesota challenges the district court’s imposition of the presumptive guidelines sentence, arguing that the district court erred by failing to recognize that it possessed the inherent judicial authority to impanel a resentencing jury to determine whether aggravating factors are present in this case and by determining that impaneling a resentencing jury would constitute double jeopardy.  Because we conclude that the district court possesses the inherent authority to impanel a resentencing jury, we reverse and remand for its discretionary determination of whether to exercise that authority. 

FACTS

After waiving his right to a jury trial, respondent Edgar Earl Lenear was convicted in April 2003 of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c)-(d) (1992), for acts that occurred in 1993.  Respondent was sentenced to 344 months in prison based on the district court’s own finding of several aggravating factors.  The sentence represents a quadruple upward durational departure from the presumptive sentencing range of 81-91 months. 

            Respondent appealed his conviction, challenging, among other things, the upward durational sentence imposed by the district court.  While respondent’s appeal was pending, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holding that upward departures in sentencing violate a defendant’s Sixth Amendment right to a jury trial unless the factors supporting the departure have been found by a jury based on proof beyond a reasonable doubt.  Therefore, this court “remand[ed] to the district court for a consideration of the application . . . of Blakely to [respondent’s] sentence.”  State v. Lenear, No. A03-1309, 2004 WL 1878770, at *2 (Minn. App. Aug. 24, 2004), review denied (Minn. Nov. 16, 2004) (Lenear I). 

            On remand, the state argued that the district court had the inherent judicial authority to impanel a sentencing jury to consider the aggravating factors.  But respondent requested imposition of the presumptive sentence.  The district court vacated respondent’s conviction and ordered sua sponte a new trial on the sentencing and the non-sentencing issues, concluding that a jury could not be impaneled solely to decide the appropriate sentence due to the double-jeopardy protection, among other things.  The state appealed, and respondent moved to dismiss the appeal, arguing that the district court’s order was not appealable under Minn. R. Crim. P. 28.04.  This court granted respondent’s motion to dismiss the state’s appeal, but noted that the state may have a remedy in a petition for prohibition.  State v. Lenear, No. A05-749, at *2 (Minn. App. June 14, 2005) (order) (Lenear II). 

The state subsequently filed a petition for a writ of prohibition seeking to prevent the district court from enforcing its order directing that respondent be retried on both sentencing and non-sentencing issues.  The state argued that the district court’s order was “beyond the scope of this court’s remand to consider ‘the application, if any, of Blakely to [respondent’s sentence].’”  This court held that, in light of the Minnesota Supreme Court’s decision in State v. Shattuck, 689 N.W.2d 785 (Minn. 2004), “[p]roperly litigating that issue would not have been beyond the scope of the remand in this case.”  State v. Lenear, No. A05-1350, at *2 (Minn. App. July 26, 2005) (order) (Lenear III).  We also rejected the state’s arguments that res judicata or law of the case barred the district court’s order.  Id.  But this court ultimately concluded that the district court mistakenly ordered a jury trial on the issue of respondent’s guilt because respondent had not asserted his double-jeopardy protection.  Id. at *3.  This court stated that “[t]he double-jeopardy issue posed by a Blakely resentencing proceeding has not been adequately litigated in the district court or briefed before this court.”  Id.  This court further stated:

If respondent chooses to file a motion for a new trial on all issues, including guilt or innocence, the question could be adequately litigated and re-presented to this court in another petition for prohibition.  Alternatively, if the district court orders imposition of the presumptive sentence, as it has indicated it would do, the state could appeal that sentence.

 

Id.  Accordingly, this court granted in part the petition for a writ of prohibition, vacated the district court’s order, and “remanded to the district court for further proceedings not inconsistent with this order and with the previous remand.”  Id.         

            On remand, the district court stated that this court’s decision in Lenear III was law of the case as applied to the district court and that Lenear III provided the district court with only two options: (1) to grant a new trial on all issues, including respondent’s guilt, should respondent file a motion for a new trial on all issues, or (2) to impose the presumptive sentence.  Because respondent did not request a new trial, the district court concluded that it must impose the presumptive guidelines sentence and thereby ordered a resentencing hearing for that purpose.  The district court further commented that, even if this court’s order allowed the district court to convene a sentencing jury to consider aggravating factors, it would not do so, as any such trial would violate respondent’s double-jeopardy protection.  The district court resentenced respondent to the presumptive prison term of 91 months.  This appeal follows. 

D E C I S I O N

The state challenges the district court’s imposition of the presumptive guidelines sentence, arguing that the district court erred by failing to recognize that it possessed the inherent judicial authority to impanel a resentencing jury to determine whether the aggravating factors are present in this case and in determining that impaneling a resentencing jury would violate respondent’s protection against double jeopardy.  “These issues present questions of law, which we review de novo.”  State v. Boehl, 726 N.W.2d 831, 835 (Minn. App. 2007) (citing State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006)).   

            Under Blakely v. Washington, 542 U.S. 296, 301-03, 124 S. Ct. 2531, 2536-37 (2004), any fact supporting an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt.  In Chauvin, the Minnesota Supreme Court held that district courts possess the inherent judicial authority to impanel a sentencing jury to make findings regarding aggravating factors because the use of a sentencing jury is necessary to carry out the sentencing scheme and to vindicate a defendant’s Sixth Amendment right to a jury determination of facts that could result in an upward durational departure from the presumptive guidelines sentence.  723 N.W.2d at 27-30.  Furthermore, in Boehl, this court, relying on Chauvin, concluded that impaneling a sentencing jury to make findings and to impose enhanced sentences for patterned sex offenders who committed their offenses prior to August 1, 2005 (the date on which the legislature statutorily provided for sentencing juries), was also within the district court’s inherent judicial authority.  726 N.W.2d at 840-42. 

The Double Jeopardy Clause of the United States Constitution provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  U.S. Const. amend. V.  Similarly, the Minnesota Constitution states that “no person shall be put twice in jeopardy of punishment for the same offense.”  Minn. Const. art. I, § 7.  Accordingly, both clauses protect a criminal defendant against “a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.”  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998) (footnote omitted); see also Brown v. Ohio, 432 U.S. 161, 169-70, 97 S. Ct. 2221, 2227 (1977) (holding subsequent prosecution for greater offense after conviction of lesser-included offense violates Double Jeopardy Clause of Fifth and Fourteenth Amendments).  This court reviews de novo the constitutional issue of double jeopardy.  State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). 

Respondent argues that impaneling a resentencing jury to consider aggravating factors would violate the protection against double jeopardy because the aggravating factors are elements of a greater offense.  Indeed, the district court, itself, stated that even if it had the authority to impanel a resentencing jury to consider aggravating factors it would not do so for fear of violating respondent’s protection against double jeopardy. 

            But this argument was recently rejected by the Minnesota Supreme Court in Hankerson v. State, 723 N.W.2d 232 (Minn. 2006).  In Hankerson, the defendant was convicted of first-degree criminal sexual conduct and was sentenced by the district court to an enhanced sentence.  723 N.W.2d at 234.  Defendant filed a petition for postconviction relief, arguing that Blakely required imposition of the presumptive sentence.  Id. at 235.  The postconviction court denied defendant’s request and instead scheduled a “resentencing jury trial.”  Id. (quotation marks omitted).  Defendant appealed, and the supreme court granted accelerated review.  Id. 

            On appeal, defendant argued, in part, that use of a sentencing jury to consider aggravating factors in resentencing violated his double-jeopardy protection because a resentencing hearing would amount to a reprosecution of the greater offense of criminal sexual conduct with aggravating factors when defendant had already been convicted of the lesser offense of criminal sexual conduct.  Id. at 236-37.  The supreme court disagreed, concluding that using a sentencing jury to determine aggravating factors did not violate the double-jeopardy clause because a “resentencing hearing [is not] a ‘second prosecution.’”  Id. at 237.  The supreme court reasoned that “a ‘second prosecution’ can occur only after jeopardy from the first prosecution has terminated,” and a first prosecution has not terminated “unless the fact finder affirmatively rejects the existence of aggravating factors in a manner that can fairly be called an ‘acquittal’ on those factors.”  Id.  The supreme court further stated that

if the state in the first trial had not sought an aggravated sentence or if the district court had “acquitted” [defendant] of the aggravating factors, double jeopardy might prevent the retrial of those factors to a sentencing jury on resentencing . . . .  But the state did seek an aggravated sentence in the first trial.  And the district court did determine, in the first sentencing hearing, that the aggravating factors had been proven by the state.

 

Id. at 238-39. 

As in Hankerson, the state sought an aggravated sentence in respondent’s first trial in this matter, and the district court determined that the aggravating factors had been proven by the state.  Therefore, respondent cannot claim that he had “any justifiable expectation of finality” with respect to his sentence.  See id. at 240 (quotation omitted).  Accordingly, we conclude that the district court’s exercise of its inherent judicial authority to impanel a resentencing jury to consider and make findings with regard to the aggravating factors would not have violated respondent’s double-jeopardy protection.[1]

But just because the district court possesses the inherent judicial authority to impanel a resentencing jury does not necessarily mean that the district court erred when it instead sentenced respondent to the presumptive sentence.  Thus, we next consider whether the district court was required to exercise its inherent judicial authority to impanel a resentencing jury.

As a general rule, “[i]n those cases in which the supreme court has concluded that a district court may properly exercise its inherent judicial authority to impanel a sentencing or resentencing jury, the supreme court has not compelled the district court to do so.”  Boehl, 726 N.W.2d at 842.  In Boehl, this court recognized that rather than “mandating the exercise of inherent judicial authority in other contexts, the supreme court has recognized the discretionary nature of this decision.”  Id. (citing State v. Hart, 723 N.W.2d 254, 259-60 (Minn. 2006) (reviewing for abuse of discretion the district court’s decision to use its statutory and inherent judicial authority to dismiss complaint in the interests of justice)).  Moreover, the supreme court has advised district courts “to proceed cautiously when exercising that authority so as to ‘respect the equally unique authority of the executive and legislative branches of government over their constitutionally authorized functions,’” id. (quoting State v. C.A., 304 N.W.2d 353, 359 (Minn. 1981)), an admonition that “applies with equal force when a district court considers whether to exercise its inherent judicial authority to impanel a sentencing or resentencing jury.”  Id.   

            In Boehl, a jury found defendant guilty of first- and second-degree criminal sexual conduct.  726 N.W.2d at 833.  The state moved the district court to impose an enhanced sentence under the patterned-sex-offender statute based on several aggravating factors, and the district court agreed.  Id. at 833-34.  On appeal, this court held that the district court’s imposition of an upward durational departure violated defendant’s constitutional right to a jury trial under Blakely and consequently reversed defendant’s sentence and remanded for resentencing consistent with Blakely.  Id. at 834.  On remand, the state moved the district court to impanel a resentencing jury to determine whether defendant qualified for the upward durational departure under the patterned-sex-offender statute.  Id.  But the district court denied the state’s motion and, instead, sentenced defendant to the presumptive guidelines sentence, concluding that “there [wa]s no version of the patterned sex-offender statute that may be applied constitutionally to [defendant].”  Id.

            On appeal, this court first determined that, on remand, “the district court could have properly exercised its inherent judicial authority to impanel a resentencing jury,” as impaneling a resentencing jury “was necessary to achieve a unique judicial function without infringing on equally important legislative or executive functions.”  Id. at 842.  We then considered whether the district court was compelled or required on remand to exercise such inherent authority to impanel a resentencing jury.  Id.  We stated “rather than using its discretion and declining to exercise its inherent judicial authority to impanel a resentencing jury, the district court failed to recognize that it possessed such authority.”  Id.  And we concluded that “[b]ecause the district court erred by failing to recognize that it possessed this inherent judicial authority, we reverse and remand for the district court’s discretionary determination of whether to exercise that authority.”  Id. (emphasis added).      

            The facts here are similar.  Respondent was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c)-(d) (1992), and was sentenced by the district court to 344 months in prison.  The sentence, a quadruple upward durational departure from the presumptive sentence, was based on the district court’s finding of several aggravating factors.  Respondent appealed to this court, challenging the upward durational departure, and we remanded for consideration of the application of Blakely to appellant’s sentence.  Lenear I.  On remand, the district court vacated respondent’s conviction and ordered a new trial on both sentencing and non-sentencing issues, concluding that impaneling a jury to consider only sentencing would violate respondent’s protection against double jeopardy.  Lenear II.  The state appealed, and this court concluded that the district court could not order a new trial because respondent had not requested a new trial nor asserted his double-jeopardy protection.  Lenear III.  On remand, the district court imposed the presumptive sentence, reasoning that because respondent did not move for a new trial and because impaneling a sentencing jury would violate respondent’s protection against double jeopardy, it had no other option.  Therefore, as in Boehl, the district court did not recognize that it possesses the authority to impanel a resentencing jury and that doing so would not violate double jeopardy.  Accordingly, we reverse and remand for the district court’s discretionary determination of whether to exercise that authority.  See Boehl, 726 N.W.2d at 842.

            Reversed and remanded.