This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Rashad Eric Spicer,




Filed January 18, 2005

Reversed and remanded

Hudson, Judge


Hennepin County District Court

File No. 02076125


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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)


Melissa Sheridan, 1380 Corporate Center Curve, Suite 320, Eagan, Minnesota 55121 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            A jury found appellant guilty of first-degree assault and the district court upwardly departed from the presumptive sentence under the guidelines.  On appeal, appellant argues that the district court violated his Sixth Amendment right to a jury determination of all aggravating factors supporting the upward departure.  We reverse and remand to the district court for resentencing in light of the United States Supreme Court decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).


            A jury found appellant guilty of first-degree assault after appellant engaged in a physical altercation that resulted in the victim suffering a traumatic brain injury.  The district court sentenced appellant to an executed prison term of 220 months—an upward durational departure from the presumptive term of 110 months under the Minnesota Sentencing Guidelines—finding that appellant acted with particular cruelty and noting the severity of the victim’s injuries.

Appellant challenged his sentence in this court arguing that the trial court abused its discretion in imposing a double durational departure.  This court found sufficient support in the record to uphold the trial court’s decision to upwardly depart and affirmed appellant’s sentence.  See State v. Spicer, No. A03-430, 2004 WL 948324 at *5–6 (Minn. App. May 4, 2004).  Appellant petitioned the supreme court for review on May 25, 2004.  The United States Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004) on June 24, 2004.  The supreme court initially denied appellant’s petition for review by order dated June 29, 2004, but vacated that order on August 17, 2004, reinstating appellant’s appeal.  By the same order, the supreme court vacated this court’s prior opinion with respect to sentencing and remanded appellant’s case to this court for reconsideration of appellant’s sentence in light of Blakely


            Appellant argues that under Blakely v. Washington, 124 S. Ct. 2531 (2004), the district court violated his Sixth Amendment right to a jury trial by upwardly departing from the presumptive guidelines sentence based on findings of fact that were not made by a jury.  This court reviews a constitutional challenge to a statute de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998). 

In Blakely, the United States Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.”  Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63).  Following Blakely, the relevant statutory maximum is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  Id. at 2537.  Consequently, under Blakely, any upward durational departure from a statutory presumptive sentence must be based on factual findings either “reflected in the jury verdict or admitted by the defendant.”  Id. (emphasis omitted). 

The state argues that Blakely is not applicable to sentencing under the Minnesota Sentencing Guidelines because, unlike the Washington sentencing guidelines analyzed in Blakely, the Minnesota Sentencing Guidelines are not statutory, and Minnesota defendants do not have a “right” or an “entitlement” to a guidelines sentence.  We disagree.  This court has held that Minnesota’s sentencing guidelines are subject to a Blakely analysis.  See State v. Saue, 688 N.W.2d 337, 341 (Minn. App. 2004); State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  In Saue, this court noted that Blakely did not specifically distinguish between guidelines that were legislatively imposed or administratively imposed.  Saue, 688 N.W.2d at 342.  Moreover, while the legislature did not itself select the presumptive sentences imposed under the guidelines, the Saue court concluded that the presumptive sentences are nonetheless “statutory,” as they are “contemplated by the legislature, developed under legislative mandate, and are reviewed by the legislature.”   Id.  Finally, while Minn. Stat. § 244.09, subd. 5 (2002) provides that sentencing under the guidelines “is not a right that accrues to a person convicted of a felony,” that provision does not address the constitutional concern of Blakely:  that a defendant has a right to a jury trial, pursuant to the Sixth Amendment, that encompasses a right to sentencing based exclusively on either the jury’s verdict or the defendant’s admissions.  See id. at 343–44; see also Blakely, 124 S. Ct. at 2540–41.   

The state next argues that appellant waived his right to raise Blakely on direct appeal because appellant failed to challenge his sentence on Apprendi grounds before the trial court at sentencing.  This court recently concluded that this argument lacks merit.  See State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (vacating the appellant’s sentence on direct appeal on Blakely grounds although the appellant did not make an Apprendi challenge at the district court level).  A defendant is entitled to the benefit of any new rule of constitutional criminal procedure if that rule is announced while the defendant’s direct appeal is pending.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  Because Blakely established a new rule of constitutional criminal procedure and because appellant’s case is before us on direct appeal from his conviction, he is entitled to the benefit of BlakelySee State v. Petschl, 688 N.W.2d. 866, 874 (Minn. App. 2004) (citing Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989)). 

Finally, the state argues that the trial court did not violate appellant’s Sixth Amendment rights under Blakely when it upwardly departed at sentencing because appellant admitted the aggravating factors supporting the sentencing enhancement at trial.  “The effect of a defendant’s admission to an aggravating factor is to waive the defendant’s constitutional right to a jury trial on the sentencing issue.”  State v. Hagen, ___ N.W.2d ___, ___, 2004 WL 2984576, at *3 (Minn. App. Dec. 28, 2004).  The Minnesota Supreme Court has held that a defendant must knowingly waive the right to a jury trial.  See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991); State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).  Here, appellant was not informed that statements made while testifying were going to be used by the district court at sentencing in lieu of a jury determination on the existence of aggravating factors.  Under the circumstances, appellant could not knowingly waive his Sixth Amendment rights.  See also Hagen, ___ N.W.2d at ____, 2004 WL 2984576, at *3 (holding that Hagen’s statements to the court at his guilty plea did not constitute admissions for Blakely purposes because Hagen did not knowingly waive his right to a jury determination on aggravating factors).

Because appellant’s sentence violated his right to a jury trial under Blakely, the sentence must be reversed and remanded.  We agree with the state’s argument that appellant is not automatically entitled on remand to a reduction of his sentence to the presumptive sentence under the guidelines.  But the appropriate remedy, including the impaneling of a jury to determine the sentencing issues, has not been fully litigated here and must be determined in the first instance by the district court.  The sentence is remanded for resentencing in light of Blakely

Reversed and remanded.

[1] The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shattuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant’s rights as articulated in BlakelyState v. Shattuck, ___ N.W.2d ___ (Minn. Dec. 16, 2004) (per curiam).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.