This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Janet Erica Hernandez,
Filed January 25, 2005
Ramsey County District Court
File No. K9-03-2375
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant pleaded guilty in September 2003 to malicious punishment of a child, in violation of Minn. Stat. § 609.377, subds. 1, 6 (2002). In exchange for appellant’s guilty plea, the state agreed to dismiss a first-degree assault charge and to cap any upward durational departure request at 72 months, constituting a 24-month departure from the presumptive sentence.
At the plea hearing, appellant acknowledged that her neighbor called 911 because appellant’s eight-month-old daughter, J.H., was not breathing. Medics arrived at appellant’s residence and took J.H. to the hospital. Three days later, doctors told appellant that J.H. suffered serious internal head injuries that included bleeding inside the skull. J.H. had bruises on her forehead. Doctors told appellant that J.H. had both fresh and older blood inside of her skull, indicating that her injuries were caused by two separate incidents. Appellant initially claimed that J.H. had fallen off a bed. Later, appellant admitted to having shaken J.H. once or twice out of frustration when J.H. cried.
Appellant acknowledged that she is much stronger than J.H. and that shaking J.H. constituted “unreasonable force” that was “excessive under the circumstances.” Appellant acknowledged that her acts resulted in great bodily harm to J.H., leaving J.H. in a “semi-vegetative” condition. The district court accepted appellant’s guilty plea and ordered a presentence investigation.
The state sought a dispositional departure and a 24-month upward durational departure from the 48-month presumptive guidelines sentence. At the sentencing hearing, Dr. Rich Kaplan testified that he examined J.H. the day after she was admitted to the hospital. He testified that J.H. had suffered severe brain injury and required complete life support. Dr. Kaplan testified that J.H. had blood overlying her brain in a number of areas, which suggested that the blood vessels around the brain were sheared, causing them to bleed. Additionally, Dr. Kaplan testified that J.H. was bleeding around her spinal cord and suffered paralysis of her lower extremities. Further, Dr. Kaplan testified that J.H. had massive hemorrhaging in her eyes, making it unclear whether she will be vision-impaired. According to Dr. Kaplan, doctors rarely see the combination of eye and brain injuries that J.H. suffered, except in severe motor-vehicle accidents when a side impact causes an infant’s head to move violently.
Dr. Kaplan testified that J.H. has made no significant progress. She is fed through a tube that is surgically implanted into her stomach. Dr. Kaplan testified that J.H. lives in a persistent vegetative state in a medical foster home and will need special care for the remainder of her life.
The district court sentenced appellant to an upward durational departure of 72 months, 48 months to be served in prison and 24 months to be served on supervised release. The district court based the upward departure on the following aggravating factors:
First, the vulnerability of the victim, [J.H.], who’s only eight months old at the time of this offense, was totally helpless and dependent on her mother to care for and protect her, an infant unable to seek protection from harm.
Secondly, the injuries suffered by [J.H.] as a result of [appellant’s] actions are extraordinarily severe and permanent. In my opinion her injuries could be more accurately described as closer to death than great bodily harm. The evidence that has been provided today and by the content and the submission of the presentence investigation shows that [J.H.’s] injuries are rare; that they’re extremely egregious injuries. They have been described as being on the severe end of the continuum.
[J.H.] was and is neurologically devastated and the remainder of her life will require total and complete care by others. She won’t progress developmentally. I find that the injuries inflicted upon [J.H.] are greater than those typically seen in these kinds of cases; that [appellant’s] abuse of [J.H.] was significantly more serious than that typically involved in malicious punishment cases.
Appellant filed a notice of appeal on April 13, 2004, challenging the judgment of conviction. On April 29, 2004, this court accepted jurisdiction over the appeal, allowing appellant’s late filing.
Appellant argues that the district court erred in imposing a 24-month upward durational departure from the 48-month presumptive sentence by relying on grounds that are elements of the statutory offense of malicious punishment of a child. We disagree.
The sentencing guidelines commission has produced a nonexclusive list of appropriate aggravating and mitigating factors to assist a district court considering departure in its analysis. See Minn. Sent. Guidelines II.D.2. The nonexclusive list of aggravating factors is “intended to describe specific situations involving a small number of cases.” Minn. Sent. Guidelines cmt. II.D.201. In other words, only “substantial and compelling circumstances” justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). In determining whether to depart, the sentencing court should consider whether the defendant’s conduct was significantly more or less serious than that typically involved in such crimes. State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). Absent an abuse of discretion, this court will not overturn a departure from a presumptive sentence. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).
Appellant argues that vulnerability and great bodily harm are elements of the offense with which she was charged and thus cannot constitute grounds for a durational departure because the legislature already accounted for these factors in defining the charged crime. In support of her argument, appellant cites State v. Brusven, in which the Minnesota Supreme Court held that a sentencing court may not rely on the same facts that are relied on in determining the presumptive sentence as a basis for a departure. 327 N.W.2d 591, 593 (Minn. 1982). Appellant’s argument is misplaced. Excessive injuries may be an aggravating factor supporting an upward departure, notwithstanding the fact that serious bodily harm is an element of the charged crime.
This court has held that “[e]ven though the infliction of great bodily harm is an element of [the charged crime], the injury nonetheless can be considered as an aggravating factor in this case because of its serious and permanent nature.” State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (quotation omitted), review denied (Minn. Sept. 29, 1987). Moreover, the state cites three relevant cases in which the district courts granted upward departures based on the victims’ vulnerability and severe injuries, even though severe bodily harm was an element of the charged crimes. See State v. Steinhaus, 405 N.W.2d 270, 271 (Minn. App. 1987) (holding that an upward durational departure was appropriate based on the five-week-old victim’s vulnerability and the particular cruelty of the assaults, which left the victim in a permanent vegetative state); State v. Edmison, 398 N.W.2d 584, 589 (Minn. App. 1986) (holding that a double upward durational departure was appropriate based on the utter helplessness of the 14-month-old victim and the fact that the victim will likely suffer permanent physical and psychological injuries as a result of the abuse); State v. Udstuen, 345 N.W.2d 766, 768 (Minn. 1984) (holding that an upward durational departure was appropriate based on the absolute vulnerability of the three-month-old victim and particular cruelty of multiple assaults causing permanent brain damage).
Furthermore, J.H.’s injuries are more serious and permanent than the injuries sustained by victims in other cases where serious bodily harm is an element of the offense. See State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984) (finding that losing a tooth constitutes great bodily harm), review denied (Minn. Feb. 6, 1985); State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (finding that scars from an assault constitute great bodily harm), review denied (Minn. Sept. 20, 1995).
Here, the district court detailed J.H.’s severe and permanent injuries. The district court described J.H.’s injuries as “closer to death than great bodily harm.” The district court also explained that J.H.’s injuries are rare and have left her “neurologically devastated” so that she will require complete care by others for the rest of her life. On this record, the district court did not abuse its discretion in imposing an upward durational departure based on the serious and permanent nature of J.H.’s injuries.
Additionally, appellant contends that the district court’s imposition of an upward durational departure violated her Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004), because the departure was based on judicially found facts, rather than a jury’s verdict. Appellant’s Blakely argument presents a constitutional issue, which this court reviews de novo. See generally State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).
But the state contends that appellant waived any right to relief under Blakely because she did not object to her sentence on Apprendi grounds at the district court. See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63. 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 her conviction, she is entitled to the benefit of Blakely. See Fairbanks, 688 N.W.2d at 337.
The state also argues that Blakely is inapplicable because appellant admitted to the facts at her plea hearing on which the district court based the upward departure. In particular, the state argues that appellant admitted that J.H. was in a semi-vegetative state. The state’s contention lacks merit.
When a defendant pleads guilty, any upward durational departure imposed must be supported by findings of fact that are based solely on facts admitted by the defendant. See Conger, 687 N.W.2d at 644–45. But even if the upward departure imposed by the district court is based on facts that appellant admitted in her guilty plea, this court recently held that an upward durational departure under the Minnesota Sentencing Guidelines may not be based on a defendant’s admission unless the admission to an aggravating factor is accompanied by the defendant’s waiver of his or her right to a jury trial on the aggravating factor. State v. Hagen, 690 N.W.2d 155, 158–59 (Minn. App. 2004). Furthermore, a defendant’s waiver of his or her right to a jury trial does not extend to the sentencing proceeding. See Fairbanks, 688 N.W.2d at 336–37 (holding that a defendant’s knowing waiver of the right to a jury trial on a criminal charge is not presumed to constitute a waiver of the defendant’s right to have a jury determine any facts necessary to a subsequent sentencing decision). Though the appellant in Fairbanks waived his right to a jury trial and instead agreed to a trial on stipulated facts, we conclude that this reasoning also applies when a defendant agrees to plead guilty to the criminal charge, as appellant did here.
Here, appellant did not knowingly waive a jury trial on aggravating factors, and thus she is entitled to the application of Blakely. When appellant made her admissions at the guilty plea hearing, she was admitting guilt for purposes of the guilty plea only. There is nothing in the record to indicate that appellant knowingly waived her right to a jury determination of the facts supporting the imposition of an upward durational departure. Therefore, the district court’s imposition of an upward durational departure violated appellant’s right to a jury trial under Blakely, and we reverse and remand for resentencing in light of Blakely.
Reversed and remanded.
 The supreme court granted review in Conger on December 22, 2004, 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 Blakely. State 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.