This opinion will be unpublished and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

A05-552

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Dwayne Greer,

Appellant.

 

Filed June 5, 2007

Affirmed

Ross, Judge

 

Hennepin County District Court

File No. 04048286

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

This appeal from a conviction and sentence for felon in possession of a firearm has been remanded in part by the supreme court for reconsideration of appellant Dale Greer’s sentence in light of State v. Chauvin, 723 N.W.2d 20, 29 (Minn. 2006), and State v. Kendell, 723 N.W.2d 597, 610 (Minn. 2006).  Because we conclude that the district court had inherent authority to submit a factual sentencing question to the jury, we affirm.

D E C I S I O N

The district court’s inherent authority to employ 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).  On remand, the supreme court has presented a question involving the application of its Chauvin decision to this case, a question that was not before the district court.

The state charged Greer with being a felon in possession of a firearm and two counts of terroristic threats.  A jury found Greer guilty of being a felon in possession of a firearm but not guilty of the other two counts.  The court then submitted to the jury a sentencing issue under the dangerous-offender statute: “Is [Greer] a danger to the public safety?”

The prosecutor introduced certified copies of Greer’s prior convictions, showing that Greer had committed theft from a person in 1984, first-degree assault in 1986, fifth-degree controlled substance offense in 1991, felon in possession in 1992, third-degree controlled substance offense in 1992, second-degree assault and terroristic threats in 1997, and fifth-degree controlled substance offense in 2002.  The jury found that Greer was a danger to public safety.  Based on this finding, the district court imposed a sentence of 120 months’ incarceration, a double upward departure under the dangerous-offender statute.

This court affirmed the conviction but reversed and remanded the sentence in an unpublished opinion, holding that, under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and State v. Shattuck, 704 N.W.2d 131 (Minn. 2005), the district court did not have authority to submit to the jury the question of whether Greer was a “danger to public safety.”  State v. Greer, No. A05-552, 2006 WL 1704059, at *10 (Minn. App. June 20, 2006), review granted and stayed (Minn. Aug. 23, 2006).  The supreme court has now vacated that part of this court’s opinion and remanded for reconsideration in light of Chauvin and Kendell.

The supreme court in Chauvin held that the district court has inherent judicial authority to sentence a defendant in accord with Blakely by submitting a sentencing question to a jury.  723 N.W.2d at 29.  In Kendell, the supreme court applied this holding to a case in which the district court, based on special interrogatories submitted to the jury, imposed a departure under the dangerous-offender statute.  State v. Kendall, 723 N.W.2d 597, 609-10 (Minn. 2006).

Greer concedes that under Chauvin and Kendell the district court had inherent authority to present the sentencing issue to a jury.  But he challenges the trial court’s failure to define “danger to public safety,” the critical term in the dangerous-offender statute, for the jury.  We will not address the merits of this challenge.

As the state points out, Greer did not request further instructions by the district court to define “danger to public safety.”  This issue also was not raised in his initial brief, nor is it part of the remand ordered by the supreme court.  An issue that is not briefed is considered waived.  State v. Meldrum, 724 N.W.2d 15, 22 (Minn. App. 2006) (discussing issues in pro se supplemental brief), review denied (Minn. Jan. 24, 2007).  Although Greer has now briefed the jury-instruction issue, he does so only after failing to include the argument in his initial brief and after the supreme court remanded this appeal only on the Chauvin/Kendell sentencing-jury issue.  We therefore conclude that Greer’s challenge to the jury instruction is both waived and beyond the scope of the remand.  See State v. Greer, 662 N.W.2d 121, 125 (Minn. 2003) (stating that “when a case returns to an appellate court after remand” to the district court “any claims that were known but not raised in the original appeal” will not be considered); Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (holding that district court’s duty on remand is to execute the directions of the remand strictly according to their terms).

Affirmed.