This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Michael John Daly,




Filed December 7, 2004

Reversed and remanded
Klaphake, Judge


Dakota County District Court

File No. K3-04-872


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


James C. Backstrom, Dakota County Attorney, Jennifer L. Casanova-Roers, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)


John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Michael John Daly appeals from the sentence imposed after he pleaded guilty to theft of a motor vehicle, arguing that the district court’s upward durational departure, based on Minn. Stat. § 609.1095, subd. 2 (2002) (career offender statute), violated his Sixth Amendment rights to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). 

            Because appellant did not knowingly and intelligently waive his right to have a jury determine whether he could be sentenced as a career offender, we reverse appellant’s sentence and remand for sentencing consistent with Blakely.


            In Blakely, 124 S. Ct. at 2536, the Supreme Court affirmed the rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), which stated:  “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  The Blakely decision clarifies Apprendi by adding:  “Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537 (emphasis omitted).  We believe that this language in Blakely calls into question the practice of judicial departures from presumptive sentences in determinate sentencing schemes without additional fact-finding by the jury on sentencing factors.

            This court recently determined that sentencing under the career offender statute requires a factual determination that a defendant’s prior convictions form a pattern of criminal conduct and thus “[t]his determination goes beyond a mere determination as to the fact, or number, of the offender’s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right.”  State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004). 

            Although appellant here waived his right to a jury trial on the issue of guilt, he was not informed of his right to have a jury determine whether his prior convictions constituted a pattern of criminal conduct.  Waiver of such important trial rights must be knowing, intelligent, and voluntary.  State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  When a defendant is not informed of his trial rights, a waiver of these rights is not knowing or intelligent.

            We therefore reverse appellant’s sentence and remand for sentencing in accordance with Blakely.

            Reversed and remanded.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.