This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Richard Orlan Greathouse,



Filed February 15, 2005

Reversed and remanded

Toussaint, Chief Judge


Mower County District Court

File No. K1-03-1610



Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101; and


Patrick A. Oman, Mower County Attorney, 201 First Street N.E., Austin, MN  55912 (for respondent);


John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Harten, Judge.




U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            In his appeal from a sentence for third-degree assault committed in violation of Minn. Stat. § 609.223, subd. 1 (2002), appellant argues that the district court erred in imposing a double durational departure based on findings made by the court rather than a jury, in violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because, under Blakely, upward durational departures may not be based on judicial findings, we reverse and remand.



Appellant Richard Orlan Greathouse was charged with attempted second-degree murder, first-degree assault, and third-degree assault for a severe assault committed on his girlfriend, Melissa Sprandel, on October 24, 2003.  Greathouse agreed to plead guilty to the third-degree assault, and to accept an upward dispositional departure, in exchange for dismissal of the other counts.  Under the agreement, the parties would be free to argue the appropriate sentence duration.  The presumptive sentence was a stayed sentence of 18 months.  Under questioning by the court, Greathouse stated he understood that there were aggravating factors that would allow the court to consider an upward departure.

At sentencing, the prosecutor requested a 36-month sentence, a double upward departure.  In support, the prosecutor cited several aggravating factors:  (1) the severity of the assault; (2) Greathouse’s behavior while in jail; and (3) Greathouse’s lack of remorse.  Following a victim-impact statement, defense counsel argued that the presumptive sentence of 18 months was appropriate.

The district court imposed a sentence of 36 months. In support of this double upward departure, the court cited (1) the difference in size and strength between Greathouse and the victim; (2) the victim’s vulnerability due to her intoxication; (3) the severity of the beating; (4) and the gratuitous infliction of pain and fear upon the victim.  This appeal follows.


            Greathouse argues that the upward durational departure imposed on him based on the judge’s finding violates his right to a jury trial under the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            In Blakely, the Supreme Court held 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 v. Washington, 124 S. Ct. at 2537 (emphasis omitted).  The defendant, it held, 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 2536, 2543.  This court has held that Blakely applies to upward durational departures imposed under the Minnesota Sentencing Guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22,
2004);[1] see also State v. Saue, 688 N.W.2d 337, 345 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005) (stayed pending Shattuck and State v. Allen, A04-127). 

The state argues that Greathouse has waived the Blakely challenge to the durational departure by failing to object to it in the district court.  See State v. Leja, 684 N.W.2d 442, 447-48 n.2 (Minn. 2004) (deciding case based on Minnesota sentencing jurisprudence, and not based on non-Blakely grounds, where the appellant waived any argument concerning Blakely).  But in Leja, Blakely was not briefed on appeal, and the supreme court reversed the upward departure on other grounds.  Therefore, the discussion of waiver in Leja was dictum.  Furthermore, this court has recently held that a defendant is “entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial.”  State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005) (stayed pending Shattuck); see also O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (holding that “if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule”).

The rule in Blakely applies to all cases pending on direct review at the time the Blakely decision was released.  See State v. Petschl, 688 N.W.2d 866, 874 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  Greathouse has briefed the Blakely issue on appeal.   And in the past the supreme court has applied some new rules more narrowly to only those pending appeals in which the issue had been raised in the district court.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 838 (Minn. 1991).  But the court did not announce that narrower application of Blakely in Leja.

We are not persuaded by the state’s argument that a violation of Blakely is not plain error.  As Greathouse points out, there has been no plain-error analysis in any of the Apprendi and Blakely opinions issued in Minnesota.  And the state cites no case in which the denial of a right to a jury trial was held to be subject to a plain-error analysis.  Greathouse pleaded guilty without admitting any of the aggravating factors relied on by the district court.  There may be an adequate record in cases tried to verdict, or cases in which defendants admit aggravating factors in the guilty-plea hearing, that would allow this court to find that Blakely error was not plain error.  But that is not the case here.

            Finally, Greathouse argues that the remedy is to impose the presumptive sentence, while the state contends any remand should permit further proceedings, including the impaneling of a jury to determine the sentencing issue(s).  The supplemental briefing ordered in Shattuck, however, indicates the remedy issue has not been settled.  Accordingly, we remand for further proceedings without specifying any particular remedy.  See State v. Saue, 688 N.W.2d at 345; State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (stayed pending decision in Shattuck).

            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 Blakely.   State v. Shattuck, 689 N.W.2d 785 (Minn. 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.