This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Kimberly Sue Berry,



Filed November 23, 2004

Affirmed in part and reversed in part

Toussaint, Chief Judge


Redwood County District Court

File No. KX-04-33



Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and


Michelle Ann Dietrich, Redwood County Attorney, Box 130, Redwood Falls, MN  56283 (for respondent);


Theodore D. Dooley, Dooley & Reichert, 270 Grain Exchange Building North, 301 Fourth Avenue South, Minneapolis, MN  55415 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Harten, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This appeal is from a sentence for aiding an offender, in violation of Minn. Stat. § 609.495, subd. 1 (2002).  Appellant Kimberly Sue Berry argues that the district court erred in imposing a dispositional departure and a triple durational departure, based on findings made by the court rather than a jury, in violation of her Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because Blakely does not apply to dispositional departures in Minnesota, but the durational departure was error, we affirm in part and reverse in part.



Berry was charged with aiding an offender under Minn. Stat. § 609.495, subd. 1 (2002), for driving three men who had been involved in a fatal shooting at a party away from the scene.  The presumptive sentence, given Berry’s criminal history score of one, was a stayed sentence of a year and a day.  A plea agreement was reached under which the parties would jointly recommend a double upward durational departure, to 24 months.  Under the agreement, as stated by the prosecutor, Berry agreed that the following aggravating factors were present:  (1) the crime was committed by three or more persons; (2) there were multiple victims; (3) the victims were particularly vulnerable; and (4) the victims were treated with particular cruelty.  The agreement, however, was only to a sentence recommendation.  The district court notified counsel that it would consider a dispositional or durational departure, or both.

At sentencing, the district court, noting it was not bound by the parties’ recommendation, imposed an upward dispositional departure and a triple durational departure.  The court cited the participation of three or more persons in the murder, the vulnerability of the murder victim, and another shooting victim, due to intoxication, and an invasion of the zone of privacy consisting of the home where the party was held.  The court found that Berry was unamenable to probation, based in part on her lack of remorse.

The district court issued a written sentencing order in which it emphasized Berry’s active role in the entire incident – driving the three participants in the shooting to the party while knowing rival gang members would be present, returning to their motel for a pistol, and calling the host of the party to get consent for them to attend.  The court also noted that Berry’s purpose in being at the party was to sell drugs.  In support of the dispositional departure, the court noted Berry’s lack of remorse, her unamenability to probation, as evidenced by her failure to complete chemical dependency aftercare treatment, and her “extreme indifference” to the court proceedings.


            Berry argues that the dispositional and durational departures imposed on her based on the judge’s findings violate her right to a jury trial under the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review.  See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            In Blakely, the Supreme Court held that the greatest sentence a judge can impose based on his or her own findings is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537.  The defendant, it held, 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.

            This court has recently held that dispositional departures in Minnesota, which are based on broad offender characteristics, are similar to the indeterminate sentencing decisions approved in Blakely, and therefore are not subject to Blakely’s holding that the Sixth Amendment requires the jury to make the findings supporting an increase in sentence.  State v. Hanf, 687 N.W.2d 659 (Minn. App. 2004).  The district court’s decision, based on Berry’s lack of remorse and her failure in treatment, is the type of decision-making held in Hanf to be indeterminate in nature and therefore not subject to Blakely’s holding.  Id. at 664-65.  Based on the reasoning set forth in Hanf, we conclude that appellant was properly sentenced to a dispositional departure based on the findings of the court rather than a jury.

            Berry also argues that the triple durational departure violated her right to a jury trial under Blakely.  This court has recently held that Blakely applies to upward durational departures under the Minnesota sentencing guidelines.  State v. Conger, 687 N.W.2d 639 (Minn. App. 2004).  The state argues, however, that because Berry stipulated to the presence of several aggravating factors the departure imposed here falls within the exception in Blakely for departures based on facts that were “admitted” by the defendant.  See Blakely, 124 S. Ct. at 2537.

            It appears from the record of the guilty plea hearing that the aggravating factors were stipulated by counsel and not personally admitted by Berry.  But in this case we need not decide what constitutes an “admission” under Blakely, or whether it must be accompanied by a waiver of the right to a jury trial on the sentencing fact “admitted.”

A departure must be based on conduct involved in the offense for which the departure is being imposed, not on the facts of another offense or on the general “course of conduct.”  See Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003) (holding court in departing may not rely on other uncharged offenses on which defendant was not convicted); State v. Richardson, 670 N.W.2d 267, 285 (Minn. 2003) (holding court must state separate departure reasons for each offense on which it departs); cf. State v. Simon, 520 N.W.2d 393, 394 (Minn. 1994) (holding durational departure cannot be based on evidence defendant could have been convicted of uncharged offense).   Here, the district court relied on the course of conduct underlying an offense – second-degree murder – for which Berry was neither charged nor convicted.  Although Berry stipulated to the murder-related aggravating factors in the plea agreement, a plea agreement by itself cannot support a departure.  See State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).

            Berry was charged with, and pleaded guilty to, aiding an offender based on her conduct after the shooting, particularly in driving the three men involved in the fatal shooting away from the scene.  The vulnerability of the shooting victims, the number of participants in the shooting, the number of shooting victims, and whether they were treated with particular cruelty or shot in a zone of privacy are not relevant to the seriousness of Berry’s conduct in aiding the offenders.  Although this issue has not been raised, it is this court’s responsibility as an appellate court to decide cases in accordance with applicable law.  See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).  The departure imposed for aiding an offender cannot be based on conduct underlying the uncharged offense of second-degree murder.  Accordingly, we need not reach the constitutional issue whether Berry’s stipulation to the aggravating factors satisfied BlakelySee generally State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983) (noting courts will declare statute unconstitutional only if absolutely necessary to decide case at hand).  The durational departure imposed on Berry is reversed.

            Affirmed in part and reversed in part.