State of Minnesota, Respondent, vs. Scott B. LaCroix, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1773

 

State of Minnesota,

Respondent,

 

vs.

 

Scott B. LaCroix,

Appellant.

 

 

Filed May 6, 2003

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 98057764

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Scott B. LaCroix, MCF-Moose Lake, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)

 

 

Considered and decided by Toussaint, Chief Judge, Hudson, Judge, and Poritsky, Judge. *

 

UNPUBLISHED OPINION

 

TOUSSAINT, Chief Judge

Appellant appeals his sentence for offering a forged check, arguing that (1) his sentence is prohibited by the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); (2) he was sentenced subject to an ex post facto law; and (3) he did not exhibit the required "pattern of criminal conduct" under that law.  Because appellant's sentence did not exceed the 10-year statutory maximum, was not subject to an ex post facto law, and exhibited a pattern of criminal conduct, we affirm.

Facts

On April 22, 1998, David Stein's rental car was broken into and several items were stolen, including a check made out to "AMEX" (American Express) in the amount of $6,037.94.  On April 27, 1998, appellant Scott B. LaCroix cashed the check, the payee now altered to read "LACroix, Scott."

LaCroix was convicted on September 2, 1999 of offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (1998).  The presumptive guidelines sentence for offering the forged check was 23 months in prison.  Minn. Sent. Guidelines § IV.  The sentencing court relied upon the currently-effective career-offender statute and LaCroix's 12 prior felony convictions to sentence LaCroix to 120 months, the statutory maximum. Minn. Stat. §§ 609.631, subds. 3, 4, 609.1095, subd. 4 (1998).

In this post-conviction appeal, LaCroix argues that (1) his sentence is barred by the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), (2) his sentence under the renumbered career-offender statute violates the ex post facto clauses of the United States and Minnesota Constitutions, and (3) the post-conviction court erred in finding that he exhibited a "pattern of criminal conduct."

d e c i s i o n A.     Application of Apprendi.

LaCroix first argues that his 120-month sentence under Minn. Stat. § 609.1095, subd. 4 (1998) violates the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

If any factother than the fact of a prior convictionincreases the penalty for a crime beyond the statutory maximum, that fact must be submitted to a jury and proved beyond a reasonable doubt.  Id. at 490, 120 S. Ct. at 2362-63.  A sentence at or below the statutory maximum authorized by the jury's factual findings, however, raises no Apprendi problem.  United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000); see also Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 2418 (2002) (holding that a jury need not authorize a sentence at or between the statutory minimum and maximum).

Because LaCroix's sentence did not exceed the 10-year statutory maximum, the sentencing court was not required to submit this question to the jury. Thus, the sentence here does not present an Apprendi problem.

 

B.     Ex Post Facto.

LaCroix next contends that because the criminal-offender statute became effective after he committed the offense, the sentencing court's use of the statute as a basis for durational departure violates the ex post facto clauses of the United States and Minnesota Constitutions. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11.  In evaluating constitutional challenges, the interpretation of a statute is a question of law.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).

Both the United States and Minnesota Constitutions prohibit the enactment of ex post facto laws, which "render[] an act punishable in a manner in which it was not punishable when it was committed." Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955) (footnote omitted).  An ex post facto law applies to events occurring before its enactment and disadvantages the offender.  Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981).  To violate the ex post facto clause, a law must:

(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when the crime was committed.

Murray v. Cisar, 594 N.W.2d 918, 921 (Minn. App. 1999) (quotation omitted) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990)), review denied (Minn. Aug. 18, 1999).  Statutes that enhance penalties for a repeat offender are not, by nature, ex post facto punishments of old offenses; rather, the statutes stiffen the penalties for the latest crime committed.  Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948); State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983) (holding that statutory amendment allowing past conviction to enhance present crimes was not ex post facto law); State v. Schluter, 653 N.W.2d 787 (Minn. App. 2002) (holding that newly amended statute, enacted before crime was committed and permitting consideration of prior offenses, was constitutional).

The district court sentenced LaCroix under the career-offender statute that was in effect at the time of sentencing.  Minn. Stat. § 609.1095 subd. 4 (1998).  LaCroix committed his crime of check forgery on April 27, 1998, and section 609.1095 had an effective date of August 1, 1998.  1998 Minn. Laws 367, art. 6, §§ 15-17 (repealing § 609.152 and renumbering as § 609.1095 on effective date).  Looking at that statute alone, LaCroix argues that the ex post facto clause prohibited increasing his punishment.  However, section 609.1095 had replaced and renumbered the prior career-offender statute, the text of which was identical in substance. Compare Minn. Stat. § 609.152, subd. 3 (1996) (permitting upward durational departure if offender has "more than four" prior felony convictions) with Minn. Stat. § 609.1095, subd. 4 (1998) (modifying language to require "five or more" prior felonies).  Considering that LaCroix had 12 prior felony convictions of a similar nature, the change in the statute's languagefrom "more than four" convictions to "five or more" convictionsdid not adversely affect LaCroix. Thus, the district court improperly sentenced LaCroix under the renumbered statute, but the action was harmless error since the statute upon which the court should have relied allowed an identical result.

 

C.     Pattern of Criminal Conduct

LaCroix finally argues that he did not exhibit a "pattern of criminal conduct" as required by the career-offender statute.  See Minn. Stat. § 609.152, subd. 3 (1996).  This is the identical argument that LaCroix made in his prior appeal before this court. State v. LaCroix, No. C1-99-2188, 2000 WL 1100183, at *2-3 (Minn. App. Aug. 8, 2000), review denied (Minn. Sept. 13, 2000). In that decision, we noted that nearly every one of LaCroix's 12 prior offenses was a theft-type offense and held that his record "clearly fits the required ‘pattern' element." Id. at *3. Under the doctrine of "law of the case," we shall not modify our prior holding. See Chippewa County Bank v. Kief, 179 Minn. 284, 288-89, 229 N.W. 130, 132 (1930) (holding in previous appeal becomes law of the case in a subsequent appeal); see also In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (after court decides upon a rule of law, that decision governs same issue throughout the case).

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.