State of Minnesota, Respondent, vs. Nhia Lee, Appellant.

State of Minnesota, Respondent, vs. Nhia Lee, Appellant. A04-1753, Court of Appeals Unpublished, July 26, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1753

 

State of Minnesota,

Respondent,

 

vs.

 

Nhia Lee,

Appellant.

 

Filed July 26, 2005

Affirmed Hudson, Judge

 

Anoka County District Court

File No. K7-04-957

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Robert M.A. Johnson, Anoka County Attorney, Kristen C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, Minnesota 55303 (for respondent)

 

Bradford Colbert, Assistant State Public Defender, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Suite 254, St. Paul, Minnesota 55105 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            The district court imposed consecutive sentences following appellant's first-degree burglary and second-degree assault convictions.  On appeal, appellant argues that (1) the district court abused its discretion by sentencing appellant to an upward dispositional departure without providing substantial and compelling reasons, and (2) the district court's consecutive sentence violates appellant's Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because appellant received a permissive consecutive sentence that does not constitute an upward departure under the guidelines, and because Blakely is not applicable to permissive consecutive sentences, we affirm.

FACTS

On January 23, 2004, appellant Nhia Lee and two other men entered M.L.X.'s residence.  All three men had knives.  One of the men held his knife to M.L.X.'s throat, asking her for money and the keys to a vehicle.  M.L.X.'s brother-in-law, V.Y., was also in the home.  Appellant and his accomplices removed V.Y. from his room.  The men beat and tied up V.Y.  When M.L.X. attempted to intervene, one of the men stabbed her repeatedly. 

The state charged appellant with one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2004), alleging that appellant assaulted a person within the building.  The state also charged appellant with two counts of second-degree assault under Minn. Stat. § 609.222, subd. 2 (2004).  Appellant pleaded guilty to all three counts.

            The district count sentenced appellant to 52 months, executed, for the first-degree burglary charge, a guidelines sentence.  The district court then sentenced appellant to 21 months, executed, for the assault against M.L.X., to be served consecutively to the burglary count.  Characterizing the consecutive sentence as a departure, the court reasoned that the consecutive sentence was appropriate because of "the facts of the case."  The district court then sentenced appellant to 21 months for the assault against V.Y., to be served concurrently with the burglary count.  This appeal follows.

D E C I S I O N

I

            Appellant first challenges his consecutive sentence, arguing that the district court failed to articulate substantial and compelling circumstances justifying a departure from the presumptive concurrent sentence.  The district court has great discretion in imposing a sentence.  If the sentence is authorized by law, this court will not disturb it.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

We conclude that appellant's consecutive sentence is authorized by law because appellant received a permissive consecutive sentence under the sentencing guidelines.  The sentencing guidelines provide for both presumptive and permissive consecutive sentencing.  When a defendant has "[m]ultiple current felony convictions for crimes against persons" and the presumptive disposition for the offenses is commitment to the commissioner of corrections, the guidelines permit the imposition of consecutive sentences.  Minn. Sent. Guidelines II.F.  Consecutive sentencing is permissive under these circumstances, even when the offenses involve a single victim and a single course of conduct.  Minn. Sent. Guidelines cmt. II.F.04.  Under these circumstances, consecutive sentencing is not a departure.  Minn. Sent. Guidelines II.F.  The decision to impose a consecutive sentence is within a district court's discretion.  State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).

The sentencing guidelines do not define what constitutes a "crime against a person."  Case law makes clear that the determination depends on the nature of the underlying conduct, not on how the crime is nominally classified.  See State v. Myers, 627 N.W.2d 58, 6263 (Minn. 2001)(holding that a consecutive sentence for obstructing legal process is a crime against a person if underlying conduct in committing the crime posed special danger to human life); State v. Notch, 446 N.W.2d 383, 385 (Minn. 1989) (holding that burglary may qualify as offense against a person if "as committed" it is in fact a crime against a person). 

Here, the district court convicted appellant of burglary under Minn. Stat. § 609.582, subd. 1(c) (2004), which requires an assault of an occupant in the facilitation of the burglary.  Accordingly, we conclude, as a matter of law, that appellant's burglary conviction constituted a crime against a person.  Appellant's other conviction is for second-degree assault which, as a matter of law, is also a crime against a person.  Therefore, it was within the district court's discretion to impose permissive consecutive sentences. 

II

Appellant next argues that his permissive consecutive sentence violates his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the Supreme Court expounded upon its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), by determining that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury."  Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 236263).  After Blakely,the maximum sentence that a district court can impose must be based solely on "the facts reflected in the jury verdict or admitted by the defendant."  Id.at 2537.  According to Blakely, a defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at 2543.  Application of Blakely presents a constitutional issue, which this court reviews de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). 

This court has applied Blakely to Minnesota's sentencing guidelines scheme, holding that "when a [district court] imposes an upward durational departure from the presumptive, fixed sentence established by the Sentencing Guidelines Commission, the [district court's] reasons for departing must be supported by facts that were found by a jury or admitted by the defendant."  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (appeal stayed pending decision in State v. Shattuck, C6-03-362).[1] 

Appellant argues that the sentencing judge's determination of whether a conviction is a crime against a person constitutes an improper finding of fact that increases the length of his sentence beyond the statutory maximum.  We disagree.  In State v. Senske, this court declined to extend Blakely to consecutive sentencing based on judicial findings that the offenses are "crimes against persons."  692 N.W.2d 743, 74849 (Minn. App. 2005), review denied (Minn. May 17, 2005).  Acknowledging that the guidelines commission intended consecutive sentencing to be a more severe punishment and that the consecutive sentence could not be imposed without a judicial finding of fact, this court concluded that Blakely is inapplicable because consecutive sentencing involves separate punishments for discrete crimes.  Id.  "Blakely does not require the jury to determine the relationship between multiple sentences any more than it would require a jury determination whether multiple sentences are permissible."  Id. at 749. 

            Senske is controlling authority on this issue.  There is no basis to require the jury to determine the permissibility of multiple sentences under the Double Jeopardy Clause or Minn. Stat. § 609.035, subd. 1 (2004).  Id. at 74647.  Appellant's sentence does not violate his Sixth Amendment right to a jury trial.

            Affirmed. 

[1] The supreme court granted review in Conger, but stayed further processing of that matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury violated the defendant's right to a jury trial under Blakely.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The court indicated that a full opinion would follow and directed supplemental briefing addressing the appropriate remedy.  Id.