This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Mark E. Smith,


Filed February 22, 2005

Reversed and remanded

Minge, Judge


Ramsey County District Court

File No. K4-03-4745



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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


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


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.



U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant Mark E. Smith challenges his sentence for two counts of criminal vehicular injury resulting in great bodily harm.  Because the factors supporting the upward durational departures were not found by a jury, Smith’s sentence violates his Sixth Amendment rights.  We reverse and remand.


            On December 28, 2003, while driving his vehicle, Smith struck two men walking on the shoulder of the roadway.  After striking the men, Smith left the scene of the accident and returned to a bar where he had been drinking.  Smith told bar patrons and employees that he hit something and did not know what it was, but that he did not want to call the police because he would get into trouble.  A bar employee went to the scene of the accident and found two men unconscious.  A passerby called for assistance; an ambulance arrived and took the men to the hospital.  Their injuries were so severe that they would have died if they had not been treated immediately.  When the police arrived, the bar employee directed them to the bar and they placed Smith under arrest.  Smith admitted to drinking and consented to a blood test.  The test results disclosed a .13 alcohol concentration.  Smith was driving without a valid license; it had been revoked in Wisconsin and suspended in Minnesota following his two prior DWI convictions.  Also Smith was driving a car without insurance.

As a result of the accident, one of the victims is a quadriplegic.  The other victim sustained two broken legs, suffered a traumatic brain injury that required immediate surgery, and it is still not known whether he will make a full recovery. 

Smith was charged with and pleaded guilty to two counts of criminal vehicular operation resulting in great bodily harm, in violation of Minn. Stat. § 609.21, subd. 2(2) (2002).  The victims requested and Smith was ordered to pay more than $477,000 in restitution to cover medical bills.  The district court sentenced Smith to 36 months in prison on count one, which was both a durational and dispositional departure from the presumptive stayed sentence of 23 months.  On count two, the district court also sentenced Smith to a consecutive 36-month sentence and stayed execution for five years.  This was an upward durational departure from the presumptive 28 months.[1]  The district court listed one set of five substantial and compelling aggravating factors that warranted the durational departures on both counts, the dispositional departure on count one, and the consecutive sentencing.  Two weeks later the United States Supreme Court released Blakely v. Washington, 124 S. Ct. 2531 (2004), and appellant filed this appeal.


            The issue presented on appeal is whether the upward sentencing departures imposed on Smith violate the Supreme Court’s holding in Blakely v. Washington, 124    S. Ct. 2531 (2004).  In reviewing a constitutional challenge, 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.”  124 S. Ct. at 2537.  The Court held that the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, which increases the sentence above this maximum.  Id. at 2536.  The Court, therefore, reversed the 90-month exceptional sentence that had been imposed under the State of Washington’s determinate-sentencing scheme and “remanded for further proceedings not inconsistent with this opinion.”  Id. at 2543. 

In applying Blakely,this court has determined criminal defendants have a Sixth Amendment right to a jury trial on facts that are the basis for durational departures.  See, e.g., State v. Fairbanks, 688 N.W.2d 333, 335 (Minn. App. 2004) (finding that under Blakely an upward departure must be based on jury determined facts); State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (holding that Blakely applies to upward durational departures under the sentencing guidelines in Minnesota).[2]

Here, the district court enhanced Smith’s sentence from 23 months to 36 months on count one and from 28 months to 36 months on count two.  The district court found that the following aggravating factors warranted the departures: Smith left the scene of the accident; Smith left the victims in the ditch until others came to their aid; the victims could have died as a result of their untreated injuries if medical help had not arrived; Smith drove without license or insurance; and the overwhelming impact of the accident on the victims’ lives, health, families and their future financial situations.  Because the factors supporting the upward durational departure were not found by a jury, the upward durational departures violate Smith’s Sixth Amendment rights and we reverse.

  Smith argues that he should be resentenced to the presumptive sentence because a sentencing jury is unauthorized by law and a sentencing jury would violate constitutional prohibitions against double jeopardy.  See U.S. Const. amend. V; Minn. Const. art. 1, § 7.  The supreme court has ordered supplemental briefing on the appropriate remedy for Blakely violations.  Shattuck, 689 N.W.2d at 786.  The Shattuck order indicates that the remedy may be one dependent on the “inherent authority” of that court.  Id.  The alternatives available to the district court for complying with Blakely have not been considered by the district court, and we remand to the district court to consider them in resentencing.  See, e.g., Conger, 687 N.W.2d at 645 (remanding the matter to district court for resentencing after finding defendant’s sentence invalid); State v. Saue, 688 N.W.2d 337, 347 (Minn. App. 2004) (remanding for resentencing after concluding that sentence violated defendant’s Sixth Amendment right to a jury trial). 

The district court did not provide specific and separate aggravating facts that justify each sentence and we do not reach the issues of Smith’s dispositional departure and consecutive sentence because we are already reversing the sentences for both convictions.[3]

Reversed and remanded.

[1] Both appellant and the state informed the district court that a consecutive sentence was presumptive and not a departure.  In fact, the imposition of the consecutive sentence was a departure.  See Minn. Sent. Guidelines II.F.

[2] 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 v. Washington, 124 S. Ct. 2531 (2004).  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.

[3] We note that although dispositional departures are usually based on considerations that relate to the offender, not the offense, and are thus not subject to Blakely, (see State v. Hanf, 687 N.W.2d 659, 666 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004)), that the district court in this case has primarily referenced offense-related considerations to justify its departure.  The district court is cautioned that if on remand it decides to rely on offense-related factors for a dispositional departure on count one, it should not assume appellant has no right to a jury with respect to the determination of the presence of those factors.  Additionally, we note that Blakely may be implicated if the district court departs from the presumptive sentence and imposes consecutive sentences.