This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Bryce Alan Minick,



Filed ­­­January 11, 2005

Reversed and remanded

Harten, Judge


St. Louis County District Court

File No. K5-03-100428


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


Alan L Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, 3000 South Fifth Avenue, Room 222, Virginia, MN 55792-2666 (for respondent)


Mary M. McMahon, McMahon and Associates, 2499 Rice Street, Suite 140, Roseville, MN 55113 (for appellant)


            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellant pleaded guilty to second-degree felony murder and the district court sentenced him to a double upward durational departure from the presumptive sentence.  Because appellant did not make an accompanying waiver of a jury determination on the facts used to support the district court’s aggravating factors, appellant’s sentence violated his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004).  We reverse and remand.


            On 9 March 2003, appellant Bryce Minick was drinking at a friend’s apartment in Virginia, Minnesota.  Another individual at the apartment told appellant that he observed an intoxicated man, the victim, in the street below.  Appellant and a third individual left the apartment to confront the victim.  Appellant observed that the victim was drunk and hit him.  After the victim fell to the ground, appellant struck him five more times with his fist and five times with his foot.  Appellant then took the victim’s wallet and cigarettes.  After beating and robbing the victim, appellant left him in the street in below-zero temperatures and failed to summon help.  The victim died from his injuries.

            Appellant pleaded guilty to second-degree felony murder.  The state moved for a double upward durational departure prior to sentencing.  The district court agreed with the state and sentenced appellant to 300 months of incarceration, double the presumptive 150 months.  The district court based the upward departure on the following three aggravating factors: (1) appellant planned to confront and rob the victim; (2) appellant took advantage of the victim’s vulnerability in an intoxicated state; and (3) appellant exhibited particular cruelty by continuing to beat the victim, leaving him severely injured in the street in below-zero temperatures and failing to summon help.  Appellant challenges the upward departure.


Generally, this court will not disturb the district court’s sentence absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But we review constitutional challenges such as the Blakely argument de novo.  See generally State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. 20 July 1995).  New rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  Appellant filed his notice of appeal on 8 April 2004 and Blakely was released on 24 June 2004.  Thus, Blakely applies here.

Blakely 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 v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis in original).  The Court also held that a defendant 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 held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), pet. for rev. filed (Minn. 10 Nov. 2004).  Thus, a judge who imposes an upward durational departure under the Minnesota Sentencing Guidelines must comply with the Sixth Amendment as construed by Blakely.  When a defendant pleads guilty, an upward durational departure must be based solely on facts admitted by the defendant in the guilty plea to comply with the Sixth Amendment.  Further, any admission made by the defendant supporting an aggravating factor must be accompanied by a corresponding waiver of a jury determination on that aggravating factor to satisfy BlakelyState v. Hagen,  ___ N.W.2d ___ (Minn. App. 28 Dec. 2004).

We must determine whether appellant not only admitted the facts the district court used to support the upward durational departure, but also whether he waived his right to a jury determination of those facts.  A review of the record reveals that the defendant did not waive his rights to a jury determination on any of the three aggravating factors supporting the upward durational departure.  Blakely had not yet been decided at the time of appellant’s guilty plea and thus his plea would not have been likely to include any such waivers.  Appellant was not informed that he had a right to a jury determination on any fact used to support an upward durational departure and could not have waived a right unknown to him.  See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (defendant’s waiver of his jury-trial rights must be knowing, intelligent, and voluntary).  Because appellant’s guilty plea lacked the necessary waivers of jury determinations of the facts used to support the upward durational departure, we need not determine whether he admitted sufficient facts.

The district court’s double upward durational departure violated appellant’s jury-trial rights under Blakely.  Accordingly, we reverse and remand for resentencing.

            Reversed and remanded.

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