This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Paul James Gestach,
Reversed and remanded
Hennepin County District Court
File No. 04007017
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, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.
Appellant Paul James Gestach challenges the district court’s upward durational departure under the career offender statute based on the judge’s finding that appellant had a record of at least five prior felony convictions and that this felony and his past activities formed a pattern of criminal conduct. Because we find that under Blakely v. Washington, 124 S. Ct. 2531 (2004), appellant had a right to a jury determination of whether his criminal convictions supported a pattern-of-conduct finding and because we find that the appellant did not make a knowing waiver of this right, we reverse the district court’s sentence of the appellant and remand for resentencing not inconsistent with this opinion.
Appellant Paul James Gestach was charged with third-degree burglary under Minn. Stat. § 609.582, subd. 3 (2002), and pleaded guilty to attempted burglary in the third degree. There was an agreement that the state would ask for an upward durational departure from the presumptive sentence to 24 months based on appellant being treated as a career offender. Appellant was sentenced to 24 months in prison, an upward departure from the presumptive 15-month sentence. The upward departure was based on the district court’s finding that appellant is a career offender pursuant to Minn. Stat. § 609.1095, subd. 4 (2002). The district court found that the appellant met the career offender requirements because the appellant had the requisite number of convictions and the convictions reflected a pattern of criminal conduct.
The issue in this case is whether the upward departure in appellant’s sentence under the career offender statute violated his rights under the Sixth Amendment as articulated in Blakely v. Washington. 124 S. Ct. 2531 (2004). In Blakely, the United States Supreme Court concluded that if factual findings are required to make an upward durational departure, those facts must be found by a jury rather than a judge and proven beyond a reasonable doubt. Id. at 2536-37. The Court stated that the facts in that case were “neither admitted by petitioner nor found by a jury.” Id. at 2537.
This court has held that Blakely applies to upward durational departures under Minnesota’s sentencing guidelines. State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).
The career offender sentencing statute that was the basis of the appellant’s upward durational departure allows for a sentence departure if the judge finds that “the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” Minn. Stat. § 609.1095, subd. 4 (2002). This court has held that this statute is within the coverage of Blakely and that a criminal defendant has the right to a jury determination of whether his convictions formed “a pattern of criminal conduct.” State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).
When appellant pleaded guilty there was an understanding that the prosecutor would seek an upward departure from 15 to 24 months based on the career offender statute. However, appellant never admitted that he was a career offender or that his convictions formed a pattern of criminal conduct. At the plea hearing appellant pleaded guilty to attempted burglary in the third degree and stated that he understood the plea negotiations read into the record. The plea negotiation read into the record stated that the career offender statute is a basis for an upward departure. Although the petition to enter a plea of guilty signed by the appellant contains a statement that the prosecutor will seek an upward departure to 24 months, there is no mention of the career offender charge. During the sentencing hearing the prosecutor stated that the parties had agreed to an upward departure to 24 months. The prosecutor also stated that appellant’s criminal record demonstrates a pattern of criminal activity related to property crimes and drugs. However, none of these statements is an admission by the appellant that he is a career offender or that this crime was part of a “pattern of criminal conduct.” In addition, the district court apparently did not understand the appellant to have admitted the necessary elements to satisfy the career offender statute because she stated for the record that she was imposing the upward departure. The reasons the district court cited for the departures were that appellant was a career offender and that his convictions reflected an ongoing pattern of criminal behavior.
Even if the appellant did admit that he was a career offender, the admission would not be sufficient because the appellant did not make a knowing waiver of his rights. A defendant’s waiver of a jury trial must be knowing, intelligent and voluntary. State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). The defendant must be aware of the rights he is waiving. Id. This court recently held that where a defendant waived his right to a jury trial, but was not informed that he had the right to have a jury determine issues related to sentencing enhancement or asked to waive his right to have a jury determine those issues, the defendant did not make a knowing waiver of that issue. State v. Whitley, 682 N.W.2d 691, 694, 696 (Minn. App. 2004). Similarly, in this case the appellant was not informed that he had a right to have a jury determine that his crime was part of a “pattern of criminal conduct.” Therefore even if the appellant admitted that his crime was part of a “pattern of criminal conduct,” this admission did not constitute a knowing waiver of his right to a jury trial.
The durational departure is therefore reversed, and this matter is remanded to the district court for resentencing in a manner not inconsistent with this opinion in such proceedings as the district court deems appropriate.
 The Minnesota Supreme Court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, C6-03-362 (Minn. argued Nov. 30, 2004). By its order in Shattuck, 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, 786 (Minn. 2004) (per curium). The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy. Id.