Waseca County District Court File No. K8-02-632.
Considered and decided by Wright , Presiding Judge; Randall , Judge; and Kalitowski , Judge.
The determination that a defendant's prior convictions form a "pattern of criminal conduct," as required for departure under the career-offender statute, involves more than a finding of recidivism. Accordingly, under Blakely v. Washington, 124 S.Ct. 2531 (2004), the defendant has a constitutional right to have the jury, rather than a judge, make that determination.
The opinion of the court was delivered by: Wright, Judge
Affirmed in part, vacated in part, and remanded
Appellant challenges his conviction for felony theft, arguing that the state's evidence was insufficient to support his conviction and that the district court abused its discretion in ruling that appellant's three prior burglary convictions could be used for impeachment. Appellant also argues that his Sixth Amendment right to a jury trial was violated when the district court imposed a sentence that was an upward durational departure under the career-offender statute, because the sentencing judge, not a jury, found that appellant had five or more prior felony convictions and that his offense was part of a pattern of criminal conduct. We affirm in part, vacate in part, and remand.
At approximately 7:00 a.m. on September 27, 2002, Martin County Deputy Sheriff Charles Poppe was dispatched to an accident near Dunnell. On the scene, Poppe observed in a ditch an unlicensed van with a trailer in tow. Poppe identified the driver as appellant Michael Mitchell. The trailer had Minnesota license plates, but the rest of Mitchell's registration information indicated that he was from Iowa. Poppe determined from a records check that the trailer belonged to Ag Power Enterprises, a utility company in Waseca. When questioned about the trailer, Mitchell said that he had recently acquired it from a friend. Mitchell reached for a piece of paper behind the driver's seat, indicating that he had a receipt for the trailer. For safety reasons, Poppe directed Mitchell to leave the paper where it was. Without any indication that the trailer was stolen, Poppe permitted Mitchell to leave the scene.
Later that morning, the Waseca Police Department received a report that a utility trailer had been stolen from Ag Power Enterprises' lot sometime after 6:30 p.m. on September 26. Officer Larry Thornhill responded to investigate the theft around noon on September 27. When Thornhill typed in the license-plate number of the stolen trailer, he received a message that Martin County law enforcement officials had encountered the trailer earlier that day. Thornhill contacted Poppe, who provided a description of Mitchell and the van. Mitchell was arrested a few days later.
Waseca County filed a complaint charging Mitchell with theft, in violation of Minn. Stat. § 609.52, subd. 2(1) (2002). Prior to trial, the state moved to impeach Mitchell with three burglary convictions. The district court granted the motion over Mitchell's objection. Following the state's case, Mitchell chose not to testify to preclude impeachment. The jury found Mitchell guilty of felony theft. The presumptive guideline sentence for Mitchell was an executed sentence of 21 months' imprisonment. The district court imposed a sentence of 42 months' imprisonment under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002), after finding that Mitchell had five or more prior felony convictions and that the present offense was committed as part of a pattern of criminal conduct. This appeal followed. After the case was submitted, the United States Supreme Court released its opinion in Blakely v. Washington, 124 S.Ct. 2531 (2004). We granted Mitchell's motion to challenge his sentence on direct appeal and accepted supplemental briefing by the parties to address the impact of the Blakely decision, if any, on the sentence imposed.
I. Is the evidence sufficient to support the conviction of felony theft?
II. Did the district court abuse its discretion in ruling appellant's prior convictions admissible ...