This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Affirmed in part, reversed in part, and remanded; motion denied
Hennepin County District Court
File No. 03034962
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Sammie Robinson contends that his sentence violated his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004), because (1) a jury did not determine, beyond a reasonable doubt, the factors upon which his upward departure was based; and (2) he did not stipulate to the departure factors or waive his right to a jury trial on those factors. Appellant also challenges his conviction. Appellant claims, among other things, that he was denied effective assistance of counsel. We affirm appellant’s conviction, but reverse and remand for resentencing. We deny respondent’s motion to take judicial notice of the transcript from a prior proceeding.
A district court’s decision to depart from the presumptive sentence will not be disturbed absent an abuse of discretion. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004) (citing State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996)). But appellant’s Blakely argument presents a constitutional issue that this court reviews de novo. Id.
The Supreme Court held in Blakely that the greatest sentence a judge can impose 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. A defendant has a Sixth Amendment right to a jury determination of any fact, other than the fact of a prior conviction, that increases the sentence above this maximum. Blakely, 124 S. Ct. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).
We reject the state’s arguments that Blakely does not apply to the Minnesota Sentencing Guidelines and that appellant waived his Blakely argument by failing to raise an Apprendi claim before the district court while Blakely was pending. See State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (holding that appellant was entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial by objecting on Apprendi grounds while Blakely was pending); State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004) (holding Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines).
Pursuant to a plea agreement negotiated by appellant’s counsel, appellant pleaded guilty to first-degree burglary in exchange for the dismissal of three other charges. Appellant also agreed to let the district court decide the length of his sentence, not to exceed 108 months in prison. After hearing arguments from appellant and the state, the district court sentenced appellant to 108 months in prison, an upward durational departure of 30 months from the presumptive executed sentence of 78 months.
Appellant argues that in light of Blakely, which was issued after appellant was sentenced, the district court erred by sentencing him to an upward durational departure based on facts found by the district court rather than a jury. In particular, the district court found that appellant had a prolonged and outrageous assaultive history toward the victim, that appellant’s current conviction was for an offense in which appellant injured the victim, and that appellant injured the victim in a prior felony conviction. Appellant also argues that he did not stipulate to aggravating factors nor did he waive his right to have a jury determine whether such factors exist.
In State v. Whitley, 682 N.W.2d 691 (Minn. App. 2004), this court addressed the issue of what constitutes an adequate jury-trial waiver for sentencing-departure decisions. The Whitley court held that the defendant did not effectively waive his right to have a jury determine the existence of aggravating factors set forth in the patterned-sex-offender enhancement statute. Id. at 696. The Whitley court stated:
Although appellant waived his right to a jury trial on the criminal charge, he did not make an explicit waiver of his right to have a jury consider the issue of sentencing enhancement nor was he informed that the factfinder, whether court or jury, had to make a finding that he committed [an aggravating factor] before an enhanced sentence could be imposed. Our supreme court recently affirmed that “[d]ue process . . . requires that each of these findings be made by a jury based on proof beyond a reasonable doubt.” O’Meara v. State, 679 N.W.2d 334, 340 (Minn. 2004).
Id. The Whitley court reversed and remanded for sentencing not inconsistent with Blakely because the defendant did not make a knowing and intelligent waiver of his right to have a jury determine whether his sentence could be enhanced. Id. at 696-97.
Here, as in Whitley, the record indicates that appellant was not advised of his constitutional right to have a jury decide facts that would justify an upward departure in his sentence. The transcripts from appellant’s plea hearing and the sentencing hearing do not indicate that appellant was advised of such a right. Nor does appellant’s plea petition indicate that appellant knowingly gave up his right to have a jury decide whether aggravating factors exist for sentencing purposes.
In Hagen, this court found that there is “no basis to distinguish a stipulation to an aggravating sentencing factor from a stipulation to an element of the offense.” 690 N.W.2d 155, 159. The Hagen court stated that Blakely “has effectively dismantled the distinction between offense elements and sentencing factors.” Id. In addition, in State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), this court stated that a defendant’s stipulation to facts constituting elements of an offense must be accompanied by an on-the-record oral or written waiver of the defendant’s right to a jury trial. “Therefore, we cannot conclude that Blakely leaves a defendant free to stipulate to a ‘sentencing factor’ without complying with the requirements pronounced in Wright for waiver of a jury trial on an element of the offense.” Hagen, 690 N.W.2d 155, 159.
In conclusion, although the record indicates that appellant agreed to let the district court decide the length of his sentence, the record does not indicate that appellant made an informed and intelligent waiver of his right to have a jury decide whether aggravating factors exist to warrant an upward departure. Therefore, we reverse and remand for resentencing consistent with this opinion.
Appellant raises additional issues in a pro se supplemental brief. Specifically, appellant asserts that (1) the complaint was “drawn up fraudulently”; (2) the district court “denied [a]ppellant a fair trial by the inducement of a preempt attack”; and (3) the district court erred in “allowing the state to conceal” several counts in its complaint. Appellant fails to offer relevant or logical support for these assertions and we find them to be without merit.
Appellant also argues that he was denied effective assistance of trial counsel because his attorney did not meet with him often enough and because he was advised to accept the plea agreement. To succeed on a claim of ineffective assistance of counsel,
[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different . . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
Based on the record, we conclude that appellant fails to meet his burden of establishing ineffective assistance of counsel. The transcript of appellant’s plea hearing indicates that appellant had sufficient time to speak with his attorney and that he was not impermissibly influenced to plead guilty. Appellant also signed a plea petition that indicates the same. We reject appellant’s claim that he was denied effective assistance of trial counsel. Therefore, we affirm appellant’s conviction.
Finally, the state filed a motion asking this court to take judicial notice of a transcript from a hearing involving a prior conviction of appellant that was not made a part of the record of this proceeding. The state cited the transcript in its brief and reprinted it in its appendix. The state contends that the transcript establishes the aggravating factor of a prior felony conviction for an offense in which the same victim was injured by appellant. See Minn. Sent. Guidelines II.D.2.b.(3). Appellant opposes the motion, arguing that there is nothing in the transcript that would justify the departure in appellant’s sentence in the present case because the transcript does not contain an admission that appellant injured the victim in the prior offense.
The record on appeal is limited to papers and exhibits filed in the district court and the transcripts of that proceeding. Minn. R. Crim. P. 28.02, subd. 8. Generally, this court will not consider evidence outside of the record. State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001). And criminal cases are not normally the appropriate setting for this court to take judicial notice, particularly of disputed facts. State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). We therefore deny the state’s motion to take judicial notice of the additional transcript.
Affirmed in part, reversed in part, and remanded; motion denied.