This opinion will be unpublished and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,
Filed March 1, 2005
Reversed and remanded
Ramsey County District Court
File No. K801774
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Philip C. Carruthers, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102-1657 (for respondent)
John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
In this remand for reconsideration of sentencing in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), we conclude that the district court’s upward durational departure under Minn. Stat. § 609.1095, subd. 4 (2000), is based, in part, on judicial fact-finding and thus violates Lawrence Ogris’s Sixth Amendment right to trial by jury. We reverse and remand to the district court for resentencing consistent with Blakely.
F A C T S
In July 2001, Lawrence Ogris pleaded guilty to attempted aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2000), and motor-vehicle theft in violation of Minn. Stat. § 609.52, subd. 2(1) (2000). The district court imposed a sentence of 108 months for the attempted aggravated robbery and a concurrent sentence of 30 months for the motor-vehicle theft. The 30 months for motor-vehicle theft is a guidelines sentence. The 108-month sentence for attempted aggravated robbery is a double, upward durational departure from the guidelines sentence of 54 months.
As a basis for the upward durational departure, the district court relied on the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2000). The court specifically found that Ogris had five or more prior felony convictions that were committed as part of a pattern of criminal conduct. We affirmed those findings on appeal in an unpublished decision filed June 15, 2004. State v. Ogris, No. C7-03-225 (Minn. App. June 15, 2004).
On June 24, 2004, the United States Supreme Court issued Blakely v. Washington, 124 S. Ct. 2531 (2004). Ogris petitioned for review, arguing that the judicial findings supporting the upward sentencing departure violated his Sixth Amendment right to a jury trial on any fact that increases his sentence above the guidelines sentence. The Minnesota Supreme Court granted Ogris’s petition and remanded for reconsideration of the sentencing issue in light of Blakely. State v. Ogris, No. C7-03-225 (Minn. Sept. 21, 2004).
The United States Supreme Court held in Blakely v. Washington that the greatest sentence a judge can impose based on judicial findings 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. 2531, 2537 (2004). Blakely refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that the Sixth Amendment requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).
Applying Blakely, the Minnesota Supreme Court has held, by order opinion, that, under Minnesota Sentencing Guidelines, an upward durational sentencing departure based on aggravating factors that have not been decided by a jury violates a defendant’s right to a jury trial. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). We have applied this rationale to the Minnesota career-offender statute in State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).
To be sentenced as a career offender, the defendant must have “five or more prior felony convictions” and must have committed the current offense as part of a “pattern of criminal conduct.” Minn. Stat. § 609.1095, subd. 4 (2000). We have specifically held that the determination of whether an offender’s convictions constitute a “pattern of criminal conduct” requires fact-finding that extends beyond an assessment of the defendant’s prior convictions. Mitchell, 687 N.W.2d at 399-400.
The state attempts to distinguish Mitchell on the ground that Ogris, unlike Mitchell, made admissions during the plea and sentencing hearings that established a “pattern of criminal conduct.” The statements, however, are an insufficient basis for a sentencing departure unless the record also includes a personal written or oral waiver of the defendant’s right to a jury trial on sentencing. State v. Hagen, 690 N.W.2d 155, 159 (Minn. App. 2004); see also Blakely, 124 S. Ct. 2541 (stating that “[w]hen a defendant pleads guilty, the state is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding” (emphasis added)).
Ogris neither consented to a judicial factual determination nor waived his right to a jury trial on sentencing. His brief statements at the plea and sentencing hearings were not offered as stipulated facts to support the imposition of an enhanced sentence, and Ogris’s guilty plea by itself does not satisfy the Hagen requirement of an on-the-record or written waiver. Hagen, 690 N.W.2d at 159; see also State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004) (noting that waiver of right to jury trial did not constitute waiver for purposes of sentencing enhancement under statute mandating increased sentence for certain predatory sex offenses); State v. Fairbanks, 688 N.W.2d 333, 336-37 (Minn. App. 2004) (determining that defendant’s waiver of jury trial for adjudication of offense does not constitute waiver of jury trial on sentencing facts under dangerous-offender subdivision of statute), review granted (Minn. Jan. 20, 2005).
The district court’s finding that Ogris’s conduct demonstrated “a pattern of criminal conduct” is a factual determination. Because Ogris’s upward durational departure relies on this judicial fact determination, his sentence violates his right to a jury trial under Blakely. We reverse and remand for resentencing in light of Blakely and Shattuck.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.