State of Minnesota, Respondent, vs. Terrell A. Berry, Appellant.
Annotate this CaseThis opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 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 victiman 81-year-old manby 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.
D E C I S I O NI
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 83842. 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, 82728 & 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 24041.
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, 30203, 124 S. Ct. 2531, 253637 (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 courtrather than the juryfound 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).
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-victimizationwhile not an element of burglaryis 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.
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