This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Tracy Ray Davey,



Filed February 1, 2005


Toussaint, Chief Judge


St. Louis County District Court

File No. K4-04-300310



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


Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 107D Courthouse, 1810 12th Avenue East, Hibbing, MN 55746 (for respondent);


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



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

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal is from a sentence for felony terroristic threats committed in violation of Minn. Stat. § 609.713, subd. 1 (2002).  Appellant argues that the district court erred in imposing an upward dispositional 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), and that the departure was not supported by sufficient reasons.  Because Blakely does not apply to upward dispositional departures in Minnesota and because the district court made adequate findings to support the departure, we affirm.



Appellant Tracy Ray Davey was charged with four counts of felony terroristic threats committed against his former girlfriend, Kelly Perfetti, and her new boyfriend, Brian Ricke.  A plea agreement was reached under which Davey would plead guilty to one of the counts and the others would be dismissed.  Davey also agreed to admit to a parole violation on an existing misdemeanor file.  In return, the state would recommend that the sentences run concurrently, with the sentence to be imposed left open to the court.

At sentencing, the district court stated that Davey had “more or less disappeared” for the two months following his guilty plea.  The court noted that the pre-sentence investigation (PSI) recommended an executed sentence on the grounds that Davey was unamenable to probation.  The defense attorney asserted that the plea agreement contemplated that a probationary sentence would be imposed.  But the court, concluding that Davey was not amenable to probation, executed the presumptively stayed 15-month sentence.




            Davey argues that the upward dispositional 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 “statutory maximum” is the greatest sentence a judge can impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 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  2543.

            This court has recently recognized that dispositional departures in Minnesota, which are based on broad offender characteristics, are similar to the indeterminate sentencing decisions approved in BlakelyState v. Hanf, 687 N.W.2d 659, 661 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004).  Consequently, this court held that dispositional departures are not subject to Blakely’s holding that the Sixth Amendment requires the jury to make findings supporting an increase in sentence.  Id.  Hanf concluded that dispositional departures in Minnesota are more like the indeterminate sentencing approved in Blakely than the upward durational departure in a determinate sentencing scheme that was disallowed in BlakelySee id. at 664., see Blakely, 124 S.Ct. at 2540 (acknowledging that indeterminate sentencing may involve implicit judicial factfinding).  For that reason, Hanf held that upward dispositional departures need not be based on jury factfinding.  Id. at 664-65. 

The district court’s decision, based on Davey’s unamenability to probation, is the type of decision-making held in Hanf to be indeterminate in nature and, therefore, not subject to Blakely’s holding.  Cf. State v. Abdullah, 858 A.2d 19, 37 (N.J. Sup. Ct.. A.D. 2004), (holding offender related factors fall within Apprendi recidivism exception recognized in Blakely)Based on the reasoning set forth in Hanf, we conclude that appellant was properly sentenced to a dispositional departure based on the findings of the court rather than a jury.[1]


              Davey’s alternative argument is that, even if Blakely does not invalidate the upward departure, the district court did not cite substantial and compelling aggravating factors to support the departure.

            At sentencing, the district court cited only Davey’s unamenability to probation in support of the upward dispositional departure.  Davey cites no persuasive authority for his argument that a finding of unamenability to probation, by itself, will not support a departure.  The guidelines commentary notes that because unamenability to probation is a factor that could be based on prohibited social and economic factors, the court “shall demonstrate that the departure is not based on any of the excluded factors.”  Minn. Sent. Guidelines cmt. II.D.101.  But that comment does not explicitly require the court to make additional findings.  And the presentence report on which the district court relied here does not discuss Davey’s social or economic circumstances.  Thus, the record demonstrates that the upward dispositional departure is not based on any impermissible social or economic factors.

            The district court’s finding of unamenability to probation satisfies the requirement that the court give reasons for any departure at sentencing.  See State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003).  Davey cites no case law holding that the court must discuss at sentencing the offender characteristics listed in State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

            This court has held that a sentencing court should not rely on a defendant’s post-plea behavior to support an upward departure.  State v. Kunshier, 410 N.W.2d 377, 379-80 (Minn. App. 1987) (holding that subsequent acts of defendant may be grounds for trial court to reject the plea agreement or the state to withdraw from it, but not for the court to impose a greater sentence without allowing defendant to withdraw the plea), review denied (Minn. Oct. 21, 1987).  But the district court here, although it mentioned Davey’s disappearance after his plea, did not rely on his post-plea conduct.  The pre-sentence investigation noted Davey’s anger at the court system, his failure to take responsibility for the offense, and his lengthy criminal history in concluding that Davey was unamenable to probation.  And Davey’s current offense violated the probation imposed on him for his prior nonfelony conviction.  Thus, the dispositional departure in this case does not impermissibly rely on Davey’s post-plea behavior.

            Because the upward dispositional departure does not violate Davey’s right to a jury trial under Blakely, and because it is supported by sufficient aggravating reasons adequately stated on the record, we affirm the departure.


[1] Davey argues that Hanf is not binding on this court because the supreme court has granted further review.  But, this court generally follows its own opinions for the purposes of consistency even if they are not binding precedent.  This court has followed the same reasoning as another opinion on which a petition for further review has been filed.  State v. Piotrowski, 435 N.W.2d 573,574-75 (Minn. App. 1989) (following same reasoning, without citing, Piotrowski v. Comm’r of Pub. Safety, 433 N.W.2d 124 (Minn. App. 1988), reviewed 453 N.W.2d 689 (Minn. 1990), reviewed on other grounds 453 N.W.2d 689 (Minn. 1990).  This court has also stated, although in an unpublished opinion, that the Piotrowski opinions were “controlling” even though review had been granted.  State v. Torgerson, 1989 WL 103247, at *1, reviewed on other grounds 453 N.W.2d  698, 699 (Minn. 1990).