IN COURT OF APPEALS
Stephanie Dawn Losh,
Filed April 5, 2005
Toussaint, Chief Judge
Cass County District Court
File No. K5-02-1236
Earl E. Maus, Cass County Attorney, P.O. Box 3000, Walker, MN 56484; and
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant
Attorney General, 1800
Bradford W. Colbert, L.A.M.P., Kristin Hubred (certified
student attorney), Room 254,
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.
TOUSSAINT, Chief Judge
challenges (1) the validity of the upward durational departure of her sentence
under Blakely v. Washington, 124
Appellant Stephanie Losh was involved in an incident in which two of her friends beat an individual who later died from his injuries. Losh was indicted by a grand jury for second-degree murder and pleaded guilty to aiding and abetting kidnapping under a plea agreement. At the August 18, 2003, sentencing hearing, both parties made arguments regarding the possibility of a dispositional departure but not a durational departure.
The district court sentenced Losh to 120 months in prison. This upward durational departure from the presumptive 86 months was based on the aggravating factor of the victim’s vulnerability. The court then dispositionally departed from the sentence by staying execution, ordering Losh to serve one year in jail with Huber privileges for school and chemical dependency treatment, and placing her on probation for 40 years. The conditions of probation included refraining from use of mood-altering substances and submitting to random drug testing.
While serving her
jail time, Losh attended classes at
At the March 8, 2004 probation violation hearing, Losh testified that she had asked her aunt for a Tylenol. Her aunt did not have a Tylenol but gave Losh a pill that Losh thought was a Motrin. Losh claimed that, when she later called her mother from the college and reported that she did not feel well, she realized that the pill her aunt had mistakenly given her was a hydrocodone, which her aunt had been prescribed for a previous miscarriage. Losh testified that she did not intentionally violate her probation and that ingesting the hydrocodone, containing morphine, was accidental.
The district court revoked Losh’s probation, telling her, “Your attorney argues forcibly for you that this was not an intentional act, but I do not find that to be credible.” The district court then executed Losh’s 120-month prison sentence. Losh challenges the constitutional validity of the upward durational departure of her prison sentence under Blakely and the revocation of the stay of execution.
I. Does Blakely apply retroactively to a defendant’s pending probation-revocation appeal taken after the time to file a direct appeal from the final judgment has expired?
II. Did the district court abuse its discretion in revoking Losh’s probation and executing her sentence?
Losh argues that the upward durational departure of her sentence based on the district court’s finding of the “vulnerability of the victim” aggravating factor violates her jury-trial rights under Blakely v. Washington, 124 S. Ct. 2531 (2004). Losh was sentenced on September 18, 2003. Her time to file a direct appeal of the final judgment elapsed 90 days from that date. See Minn. R. Crim. P. 28.02, subd. 4(3). Losh did not directly appeal the final judgment. However, she appealed from the March 8, 2004, revocation of her probation on June 7, 2004. Blakely was decided on June 24, 2004, while that probation-revocation appeal was pending.
applies retroactively to matters pending on direct appeal when itwas
announced. See O’Meara v.
State, 679 N.W.2d 334, 339 (
Thus, the point at which a judgment becomes final is the critical point for purposes of retroactivity analysis. Protecting the integrity of judicial review does not require extending a new rule of criminal constitutional procedure to a differently situated class, namely those defendants whose convictions have become final. Further, extending the new rule to those challenging the revocation of their probation would treat differently those with stayed sentences from those with executed sentences.
Accordingly, because Blakely was released after the period to file a direct appeal from Losh’s conviction was final, we conclude that Blakely does not apply to Losh’s pending probation-revocation appeal.
also argues that because her probation violation was unintentional, the
district court erred by executing her sentence.
On review of a probation revocation, this court will reverse the
decision only if the district court clearly abused its discretion. State v.
district court failed to expressly follow the
At the probation revocation hearing, Losh testified that she was suffering from a headache on the day of the incident; she asked her aunt, a classmate, for a Tylenol; and she took from her aunt what Losh thought was a Motrin, another form of aspirin. Losh explained that only later, when she became ill and spoke with her mother, did she realize that her aunt had mistakenly given her a hydrocodone pill. The district court found Losh’s account of these events not to be credible: Losh’s claim that her aunt did not tell her what was in the pill did not comport with the fact that she knew what she might have taken once she returned to the jail. And the district court discounted Losh’s claim that a call to her mother triggered her memory that her aunt may have had hydrocodone pills prescribed following a miscarriage. Because the district court’s role is to judge the credibility of the witnesses, we defer to the district court’s credibility evaluations. See State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986) (district court acts as factfinder by weighing witness credibility), review denied (Minn. Feb. 13, 1987); State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (citing State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (deferring to district court’s evaluation of witness credibility when district court did not believe defendant’s explanations)), review denied (Minn. Feb. 27, 1985).
support the third
This entire incident was the result of the abuse of drugs and alcohol and poor choices. [T]o allow you to again use or be involved with people who use chemicals in violation of the conditions of probation would not serve the public interest. This crime was the most vicious thing that I’ve ever seen and you were a part of it. And I realistically should have sent you to prison before, but I wanted to give you the opportunity to make a success of yourself.
Thus, the district court found that
Losh’s continued use and involvement with controlled substances is a danger to
the public interest. This finding
adequately supports the third
D E C I S I O N
Because Blakely does not apply retroactively to a probation-revocation appeal, and the district court did not abuse its discretion by revoking Losh’s probation, we affirm the execution of Losh’s sentence.
address this issue although the state agrees with Losh that Blakely
applies. “[I]t is the responsibility of appellate courts to decide cases in
accordance with law, and that responsibility is not to be ‘diluted by counsel’s
oversights, lack of research, failure to specify issues or to cite relevant
authorities.’” State v. Hannuksela,
452 N.W.2d 668, 673 n.7 (
note that the retroactivity analysis of