This opinion will be unpublished and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

A06-1104

 

State of Minnesota,

Respondent,

 

vs.

 

Terrell A. Berry,

Appellant.

 

Filed September 4, 2007

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 03061085

 

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

 

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

 

John M. Stuart, State Public Defender, Benjamin Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3097 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges his sentences for two first-degree-burglary convictions.  Appellant argues that (1) the district court lacked authority to empanel a sentencing jury and (2) there were no severe aggravating factors justifying a greater-than-double durational departure from the sentencing guidelines’ presumptive sentence.  Because the district court properly applied the law and did not abuse its discretion, we affirm. 

FACTS

 

            On March 21, 2003, appellant Terrell A. Berry gained entry into the apartment of the victim—an 81-year-old man—by posing as a female employee of the apartment complex where the victim lived.  The victim was blind, hearing-impaired, and communicated through a specially-equipped television monitor.  Appellant used the monitor to ask the victim for money; the victim gave him two dollars.  Appellant also entered the victim’s bedroom and stole an additional $420. 

On July 17, 2003, appellant entered the victim’s apartment again, this time gaining entry by posing as a package deliverer.  Appellant stole the victim’s checks, which he fraudulently cashed for approximately $1,056.

            On both occasions, appellant went to the victim’s home with the intent to steal money to support his drug habit.  As a result of appellant’s conduct, the victim felt deprived of his sense of security and moved to a different apartment. 

On March 23, 2004, appellant pleaded guilty to two counts of first-degree burglary in violation of Minn. Stat. §§ 609.582, subd. 1(a), .1095, subd. 3 (2002).  The district court imposed sentences of 120 and 60 months to be served consecutively.  Both sentences were upward durational departures from the sentencing guidelines’ presumptive sentence.

            The district court based the departures on three findings: (1) the victim was particularly vulnerable, (2) appellant’s decision to re-victimize was particularly cruel, and (3) appellant selected the victim because of the victim’s disability and age.  The district court also based its departure decisions on the dangerous-offender statute, Minn. Stat. § 609.1095, subd. 2 (2002).  The district court found that appellant was at least 18 years old, had three prior violent-offense convictions, and was a threat to public safety. 

            Appellant appealed.  This court affirmed in part, reversed in part, and remanded for re-sentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  State v. Berry, A04-1435, 2005 WL 1021374 (Minn. App. May 3, 2005), review denied (Minn. July 19, 2005). 

On remand, the state gave notice that it would seek an upward durational departure and moved to empanel a sentencing jury to determine the existence of aggravating factors.  The state sought to prove that appellant was a dangerous offender, the victim was particularly vulnerable, and appellant intentionally selected the victim because of the victim’s disability and age.  The state argued that Minn. Stat. § 244.10, subd. 5 (Supp. 2005), gave the district court authority to empanel a sentencing jury. 

On September 15, 2005, the district court held a hearing on the state’s motion.  Appellant opposed the motion and argued that the district court lacked authority to empanel a sentencing jury.  The district court granted the state’s motion to empanel a jury “for purposes of the departure issues.” 

On March 13, 2006, in a Lothenbach proceeding, appellant pleaded not guilty to the aggravating factors and waived his right to a jury trial, leaving the state to prove to the district court the existence of aggravating factors beyond a reasonable doubt.  The matter was tried to the court, and on March 16, 2006, the district court found that the state proved beyond a reasonable doubt the existence of three aggravating factors: (1) the victim was particularly vulnerable due to age, infirmity, or reduced physical capacity, which was known or should have been known by appellant; (2) appellant intentionally selected his victim because of the victim’s disability and age; and (3) appellant was a dangerous offender.

The district court re-imposed its original sentences of 120 and 60 months to be executed consecutively.  The 120-month sentence is a double-durational departure from the presumptive sentence of 60 months.  The 60-month sentence is almost a triple-durational departure from the presumptive sentence of 21 months.

Because the 60-month sentence was greater than a double departure, the state requested that the district court find that severe aggravating factors existed.  The district court stated that “in this matter I am finding that this is an even more severe situation, because of the return to [the victim’s] apartment and the targeting of the victim because of the knowledge of his vulnerability.”  In addition, the court stated: “I’ve considered the burden of proof, and I considered the proof of each of the possible grounds for departure and do find that, especially in the second sentence where I did depart more than twice, that it is because of the re-victimization and the severeness of the aggravating factors in that case.” 

This appeal follows.

D E C I S I O N

I

            Appellant argues that the district court did not have the authority to empanel a sentencing jury because the 2005 amendments to the sentencing guidelines authorizing sentencing juries only apply to convictions entered after the 2005 effective date.  This court reviews legal issues de novo.  State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006).  

            Under Minn. Stat. § 244.10, subd. 5 (Supp. 2005), when the state provides notice of a desire to seek an upward durational departure, the district court must allow the state an opportunity to prove beyond a reasonable doubt to a jury the existence of aggravating factors.  Appellant argues that the district court did not have the authority to empanel a sentencing jury to find departure grounds because the 2002 sentencing guidelines applicable at the time of his conviction did not allow for the use of sentencing juries to impose aggravated sentences.  Appellant’s argument has no merit.  In Hankerson v. State, the supreme court rejected this very argument, stating that “the 2005 amendments to section 244.10, subd. 5(a), and the former version of Minn. Sent. Guidelines II.D. authorize a district court to impanel a sentencing jury on sentencing of a conviction obtained before the act’s effective date and to use the jury’s findings to impose a new sentence, including, where appropriate, an aggravated sentence.”  723 N.W.2d 232, 236 (Minn. 2006). 

            Appellant also argues that the retroactive application of section 244.10 is unconstitutional because it violates the ex post facto clause of the United States and Minnesota constitutions.  We disagree.  In Hankerson, the supreme court rejected this argument as well, stating that “the retrospective application of the 2005 amendments to section 244.10, subd. 5(a), is not prohibited as an ex post facto law.”  723 N.W.2d at 243. 

II

Appellant next argues that his sentence should be reversed because section 609.1095, the dangerous-offender statute, was unconstitutional at the time of his sentencing because it permitted judicial fact-finding.  But the supreme court rejected this argument in State v. Boehl, 726 N.W.2d 831 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007).  In Boehl, the supreme court held that a district court properly exercises its inherent judicial authority when it empanels a sentencing jury to apply the dangerous-offender statute in conformity with Blakely, even after the statute was amended to provide for such a procedure, but the amendment was not made retroactive.  Id. at 838–42.  In addition, appellant waived his right to a jury trial on this issue, thus granting the district court authority to make the findings required by the statute.  See State v. Thompson, 720 N.W.2d 820, 827–28 & n.3 (Minn. 2006) (a defendant may waive his or her right to a jury trial on aggravating factors).

III

            Appellant next argues that a re-sentencing hearing, which permits a jury to find aggravating factors, violates the Double Jeopardy Clause.  This court “reviews de novo the constitutional issue of double jeopardy.”  State v. Large, 607 N.W.2d 774, 778 (Minn. 2000).

            Appellant contends that a re-sentencing hearing to determine aggravating factors is equivalent to a re-prosecution for the greater offense of burglary with aggravating factors.  Again, we find appellant’s argument meritless.  In Hankerson, the supreme court rejected this argument, stating that “the use of a sentencing jury to consider aggravating factors in [a] resentencing hearing does not violate the Double Jeopardy Clause.”  723 N.W.2d at 240–41.

IV

            Appellant also argues that his sentence unconstitutionally violates his Sixth Amendment right to a jury trial.  This court reviews sentencing challenges based on legal issues de novo.  State v. DeRosier, 719 N.W.2d 900, 903 (Minn. 2006).

            In Blakely v. Washington, the Supreme Court held that a sentence violates a defendant’s Sixth Amendment right to a jury trial when it exceeds the statutory maximum and is based on judicially determined facts that the defendant did not admit or the jury did not find beyond a reasonable doubt.  542 U.S. 296, 302–03, 124 S. Ct. 2531, 2536–37 (2004).  The statutory maximum is the greatest sentence the district court can impose based only on the jury’s verdict and admitted facts.  Id. at 303, 124 S. Ct. at 2537.  

In accordance with Blakely, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”  State v. Shattuck, 704 N.W.2d 131, 135 (Minn. 2005) (quotation omitted).  The sentencing guidelines’ presumptive sentence “is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.”  Id. at 141 (quotation omitted). 

            However, a district court has discretion to upwardly depart from the guidelines’ presumptive sentence if aggravating factors are present.  Id. at 140.  “As a general rule, the maximum upward durational departure that can be justified by aggravating circumstances is double the presumptive sentence.”  Id.  “Only in cases of severe aggravating circumstances may the district court impose a greater-than-double departure from the presumptive sentence.”  Id. (quotation omitted) (emphasis added).  Such cases are “extremely rare,” but in such cases “the only absolute limit on duration is the maximum provided in the statute defining the offense.”  Id. 

            Appellant argues that because “a finding of severe aggravating factors is essential to the imposition of a greater-than-double departure” under Blakely, the state must prove severity to a jury beyond a reasonable doubt.  Appellant relies on State v. DeRosier for the proposition that “the Sixth and Fourteenth Amendments guarantee . . . a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.”  719 N.W.2d at 903 (quotation omitted).  According to appellant, the severity of aggravating factors is a “disputed fact.”

In DeRosier, a jury convicted the defendant of criminal sexual conduct in the first degree for sexual encounters with the victim that occurred over the months of June, July, and August of 2000.  Id. at 901.  The jury did not, however, determine the specific date or dates of the offenses.  Id.  On August 1, 2000, the presumptive sentence for first-degree criminal sexual conduct changed from 86 months to 144 months in prison.  Using the presumptive sentence applicable after August 1, 2000, the district court sentenced DeRosier to 144 months in prison.  Id.  In effect, the district court—rather than the jury—found that one of the sexual encounters occurred in August 2000, which allowed the court to impose the higher presumptive sentence.  Id. at 903.  The supreme court held that the district court’s independent determination of the date of DeRosier’s offense is a Blakely violation.  Id.  

Appellant’s reliance on DeRosier is misplaced, primarily because of the procedural posture of this case.  On remand from this court, the district court empaneled a sentencing jury pursuant to Minn. Stat. § 244.10, subd. 5 (Supp. 2005).  Appellant then waived his right to a sentencing jury and agreed that the existence of aggravating factors could be tried to the court.  By virtue of this waiver, we conclude that appellant also granted the district court the authority to make the “severity” finding with respect to those aggravating factors.  See State v. Spain, 590 N.W.2d 85, 89 (Minn. 1999) (noting that there is no bright line between aggravating and “severe” aggravating circumstances).

            Appellant also argues that even if the district court had the authority to make the “severity” findings, it did not make those findings beyond a reasonable doubt.  We disagree.  Before making its findings regarding whether there were “severe aggravating factors” justifying an upward departure, the district court specifically stated on the record that it had “considered the burden of proof.”  This clearly demonstrates that the district court found that respondent had proven the presence of severe aggravating factors beyond a reasonable doubt. 

V

            Appellant’s final assignment of error challenges the district court’s decision to upwardly depart from the presumptive sentence.  Appellate courts review a district court’s departure from the guidelines’ presumptive sentence for an abuse of discretion.  Shattuck, 704 N.W.2d at 140. 

            A district court has discretion to upwardly depart from the guidelines’ presumptive sentence if the case “involves substantial and compelling circumstances.”  Minn. Sent. Guidelines II.D.; Shattuck, 704 N.W.2d at 141.  A finding of the following evidences substantial and compelling circumstances justifying departure: (1) victim vulnerability, (2) the defendant is a dangerous offender, and (3) the defendant selected his victim because of the victim’s disability or age.  Minn. Sent. Guidelines II.D.2.b(1), (8), (11).  When departing from the guidelines, the district court is required to provide “written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected . . . is more appropriate, reasonable, or equitable than the presumptive sentence.”  Id.  But “[o]nly in cases of severe aggravating circumstances may the district court impose a greater-than-double departure from the presumptive sentence.”  Shattuck, 704 N.W.2d at 140 (quotation omitted) (emphasis added).

Here, the district court found beyond a reasonable doubt the existence of the above-mentioned aggravating factors.  The court made a record of its reasons for departure, stating that appellant has “no insight into the effect of his actions on others,” and his conduct had a significant negative impact on the victim’s sense of security.  The court stated that it considered the aggravating factors severe because of appellant’s repeated exploitation of the victim’s vulnerabilities. 

But appellant argues that the district court abused its discretion because appellant did not use violence to perpetrate his crime.  Appellant offers no authority to support his contention that violence is a necessary predicate for an upward departure on a burglary conviction.  Generally, arguments not supported by authority are waived.  State v. Modern Recycling, Inc.,558 N.W.2d 770, 772 (Minn. App. 1997).  Moreover, burglary is statutorily presumed to be a crime of violence without regard to how it is committed.  See Minn. Stat. § 609.1095, subd. 1(d) (2002).  Furthermore, appellant’s argument ignores the fact that the exploitation of a person’s disabilities can be as harmful to the victim’s sense of security as any violent act.

Finally, appellant argues that the district court abused its discretion because to base its decision to depart on re-victimization the district court impermissibly considered facts which supported one conviction as a basis for an upward departure for a different conviction.  There is some merit to appellant’s position because re-victimization—while not an element of burglary—is a fact here that is only associated with the second burglary.  But given the district court’s wide discretion in sentencing and the presence of the remaining aggravating factors, we conclude that the district court did not abuse its discretion by imposing a departure on both counts.

            Affirmed.