IN COURT OF APPEALS
State of Minnesota,
Anthony J. Beaty,
Reversed and remanded
Nicollet County District Court
File No. K6-00-195
John M. Stuart, State Public
Defender, F. Richard Gallo, Jr., Assistant State Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael K. Riley, Nicollet
County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter,
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.
When a district court stays the imposition of a sentence, thereby precluding a challenge to the duration of the sentence on direct review, and later vacates the stay and imposes an upward durational departure at a probation-revocation hearing, the new rule of criminal procedure announced in Blakely v. Washington, 124 S. Ct. 2531 (2004),applies retroactively to a defendant’s pending appeal of the sentence imposed.
Appellant challenges the duration of his sentence first imposed at a probation-revocation hearing, arguing that the district court, by vacating the stay of imposition and imposing and executing a sentence that is an upward durational departure from the Minnesota Sentencing Guidelines, violated appellant’s Sixth Amendment right to a jury trial as recognized in Blakely v. Washington, 124 S. Ct. 2531 (2004). We reverse appellant’s sentence and remand this matter to the district court for reconsideration of the sentence in light of the new rule announced in Blakely.
In January 2000, L.B. obtained an order for protection against appellant Anthony Beaty. Three months later, L.B. reported to law enforcement that Beaty sent a letter to her home, in violation of the order for protection. In the letter, Beaty called L.B. derogatory names and threatened L.B.’s life. Beaty was subsequently charged with violation of an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(d)(1) (1998), and terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (1998).
Beaty pleaded guilty to both offenses. At the sentencing hearing on October 2, 2000, the district court imposed the presumptive guidelines sentence of 18 months’ imprisonment with a stay of execution for the terroristic-threats offense. For the conviction of violation of an order for protection, the district court stayed the imposition of a sentence and placed Beaty on supervised probation for five years.
Several years later, Beaty
was alleged to be in violation of the conditions of his probation. At the probation-revocation hearing on June
23, 2004, Beaty admitted the violations.
The district court revoked Beaty’s probation and executed the 18-month
sentence previously imposed on the terroristic-threats conviction. The district court then vacated the stay of
imposition on the conviction of violation of an order for protection and
imposed a 36-month executed sentence, to be served concurrently. This sentence was an upward durational
departure from the presumptive guidelines sentence. The district court’s reasons for imposing the
upward departure were that (1) Beaty repeatedly violated the order for
protection; (2) L.B. suffered extreme adverse effects; and (3) probation
did not deter Beaty from violating the order for protection. The next day, the United States Supreme Court
issued its decision in Blakely v. Washington, 124
Does Blakely v. Washington apply retroactively to a pending appeal arising from a probation-revocation proceeding in which the district court vacated a stay of imposition and imposed a sentence that is an upward durational departure from the Minnesota Sentencing Guidelines?
Blakely v. Washington,
the Blakely decision was released the day after Beaty’s sentence was
imposed, we must first determine whether the new rule of constitutional
procedure announced in Blakely applies retroactively to Beaty’s sentence
imposed at the probation-revocation hearing. The determination of whether a
decision applies retroactively is a legal question, which we review de
novo. State v. Costello, 646
N.W.2d 204, 207 (
A new rule for the conduct of
criminal prosecutions applies retroactively to all cases “pending on direct
review or not yet final.” O’Meara v. State, 679 N.W.2d 334, 339 (
assessing when a case is
“pending on direct review or not yet final,” we have generally used the date
the defendant’s conviction became
final without addressing the effect of a stay of imposition without a sentence duration. For instance, in State v. Petschl, 692
N.W.2d 463, 470-72 (Minn. App. 2004), review
In all of these cases, however, the district court pronounced the sentence—in the form of an upward durational departure—at the sentencing hearing when the judgment of conviction was entered. Because the sentence had been imposed, the defendant was able to challenge the upward durational departure during the 90-day-direct-appeal period, but failed to do so.
Because the district court stayed the imposition of Beaty’s sentence, Beaty’s circumstances differ significantly. Not until the day before Blakely was released did the district court vacate Beaty’s stay of imposition and impose a sentence that was an upward durational departure from the sentencing guidelines. Because Beaty could not have known the duration of his sentence before the stay of imposition was vacated, the date the sentence was imposed marked the first opportunity for Beaty to appeal an upward departure imposed in violation of the Sixth Amendment.
United States v. Martin, a case addressing the retroactivity of a
modification to the standard of review for sentencing departures, the First
Circuit concluded that
the district court stays the imposition of a sentence, no sentence is
pronounced and imposition of a sentence is stayed on the condition that the defendant
satisfies the terms of probation.
Beaty could not have known of the upward durational departure before the stay of imposition was vacated. June 23, 2004, the date of the probation-revocation hearing at which the sentence constituting an upward durational departure was imposed, marked the first opportunity for Beaty to appeal the sentence. For all practical purposes, the 90-day period to file a “direct appeal” of Beaty’s upward durational departure had just begun. See Fields, 416 N.W.2d at 736 (reasoning that because defendant lacks motivation to appeal upward durational departure when its execution has been stayed, probation-revocation appeal should be treated like direct appeal). Because Beaty’s sentence was still subject to appeal when Blakely was released on June 24, 2004, Beaty’s sentence was “not final for retroactivity purposes.” Martin, 363 F.3d at 46 n.35 (quotation omitted).
Accordingly, we hold that, when a district court stays the imposition of a sentence, thereby precluding a challenge to the sentence duration on direct review, and later vacates the stay and imposes a sentence that is an upward durational departure, Blakely applies retroactively to a defendant’s pending appeal of the sentence imposed because the sentence was not final when Blakely was released.
conclusion comports with the principles underlying the
Having concluded that Blakely applies retroactively to Beaty’s appeal, we next address Beaty’s central contention—that the imposition of the upward durational departure based on judicial findings of fact violates his right to a jury trial announced in Blakely.
Minnesota Supreme Court has held that an upward durational departure from the
Minnesota Sentencing Guidelines based on judicial findings violates a
defendant’s right to a jury trial under Blakely. State
v. Shattuck, 689 N.W.2d 785, 786 (
Beaty pleaded guilty to violating an order for protection. The findings supporting the upward durational departure were not found by a jury. Although in the course of entering his guilty plea Beaty was informed in general terms of his right to a jury trial, he was not specifically advised that he had a right to have a jury determine any fact used to support an upward departure from the sentencing guidelines. Because Beaty did not knowingly waive his right to a jury trial on the aggravating factors, his admissions may not provide a factual basis to support the aggravating factors. Thus, the upward durational departure based on judicial findings violated Beaty’s Sixth Amendment right to a jury trial. We, therefore, reverse Beaty’s sentence and remand this matter to the district court for reconsideration of the sentence in light of the new rule announced in Blakely.
Because the district court stayed the imposition of appellant’s sentence and appellant could not challenge the duration of his sentence until the sentence was imposed at the probation-revocation hearing, Blakely applies retroactively to appellant’s pending appeal of the sentence imposed. When the district court imposed a sentence that was an upward durational departure from the Minnesota Sentencing Guidelines based on judicial findings, appellant’s Sixth Amendment right to a jury trial was violated.
Reversed and remanded.
 Violation of an order for
protection is a severity-level IV offense.
Our holding is not in conflict with our decision in State v. Losh, 694
N.W.2d 98 (Minn. App. 2005),where we concluded that Blakely does
not apply retroactively to a pending probation-revocation appeal arising from
the vacation of a stay of execution of a sentence. In sentencing Losh, the district court
imposed the sentence but stayed its execution.
 The Shattuck court
rendered its decision in an order, indicating that a full opinion would follow.
689 N.W.2d at 786. It also directed
supplemental briefing to address the appropriate remedy.
The Minnesota Supreme Court granted review in Conger but stayed further processing of that matter pending its final decision in State v. Shattuck, No. C6-03-362 (argued Nov. 30, 2004).
Although not raised on appeal, we note that, even without the benefit of Blakely,
Beaty’s upward durational departure is unwarranted. “If the reasons given [for an upward departure]
are improper or inadequate and there is insufficient evidence of record to
justify the departure, the departure will be reversed.” State v. McIntosh, 641 N.W.2d 3, 8 (
The district court cited three reasons for the upward departure: (1) Beaty repeatedly violated the order for protection; (2) [L.B.] suffered extreme adverse effects; and (3) probation did not deter Beaty from violating the order for protection. Because the third factor reasonably supports the revocation, which Beaty does not contest, we examine only the first two factors.
The first reason
cited here is inadequate to support an upward durational departure because a
departure must be based on conduct involved in the offense for which the
sentence is imposed, not based on the facts of another offense or for a general
course of conduct. See Taylor v.
State, 670 N.W.2d 584, 588 (
The second reason also fails to support an upward durational departure. L.B.’s reaction to Beaty’s conduct does not demonstrate that Beaty’s conduct was “significantly more . . . serious” than conduct typically involved in a violation of an order-for-protection offense. Beaty violated the order for protection by sending a threatening letter to L.B.’s home. Such conduct is, unfortunately, quite typical for this offense. And the district court did not base its decision on the particular vulnerability of the victim, which can be a valid basis for an upward departure.