This opinion will be unpublished and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,
Chad Allen Rourke,
Filed March 8, 2005
Reversed and remanded
Stevens County District Court
File No. K3-03-17
Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and
Charles C. Glasrud, Stevens County Attorney, P.O. Box 66, Morris, Minnesota 56267 (for respondent);
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55415 (for appellant)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from a sentence for first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2002). The supreme court has remanded appellant Chad Rourke’s appeal for reconsideration of his challenge to his sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004). Although we conclude that Blakely does not apply to custody-status-point determinations under the Minnesota Sentencing Guidelines, the durational departure violated appellant’s right to a jury trial under Blakely, and, therefore, we reverse and remand.
Appellant Chad Rourke pleaded guilty in May 2003 to first-degree assault for threatening to kill his girlfriend, Erica Boettcher, while she was a passenger in his vehicle and then deliberately smashing the vehicle into a pole. The complaint charged Rourke with first-, second-, and third-degree assault, first-degree criminal damage to property, domestic assault, reckless driving, and careless driving. The plea agreement provided that the other charges would be dismissed; the parties would jointly recommend a sentence of 128 months, an upward departure from the presumptive 98-month sentence; and the state would waive its right to seek a greater departure.
The presumptive sentence of 98 months was calculated based on one criminal-history point, which consisted of a custody-status point due to Rourke being on probation at the time of the offense for his prior conviction of fifth-degree assault against Boettcher.
The district court sentenced Rourke to the agreed-on 128 months, citing appellant’s two prior gross-misdemeanor convictions involving the same victim, his abuse of his position of power and control over the victim, the particular cruelty of the offense, and the plea agreement.
Rourke argues that the upward durational departure, and the use of a custody-status point to calculate the presumptive sentence, violated 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. See 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. 2531, 2537 (2004). A 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 held that Blakely applies to upward durational departures imposed under the Minnesota Sentencing Guidelines. State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (appeal stayed pending decision in State v. Shattuck, C6-03-362); see also State v. Saue, 688 N.W.2d 337, 345 (Minn. App. 2004), review granted (Minn. Jan. 20, 2004). The supreme court in Shattuck has determined that the upward durational departure in that case violated the appellant’s right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (ordering supplemental briefing on the issue of the appropriate remedy).
The state argues that Rourke has forfeited 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). But in Leja, Blakely was not briefed on appeal, and the supreme court reversed the upward departure on other grounds, making the discussion of waiver dictum.
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). Rourke 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 any narrower application of Blakely in Leja.
The state also argues that because Rourke stipulated to the upward departure, he is not entitled to relief under Blakely. See Blakely, 124 S. Ct. at 2541 (noting that a sentence enhancement not based on jury findings would be proper “so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding”). But Rourke did not stipulate to the aggravating factors; he only stipulated to the departure. In any event, this court has recently held that a defendant cannot stipulate, or enter an “admission,” to an aggravating factor under Blakely unless he waives his Sixth Amendment right to a jury trial on the issue. State v. Hagen, 690 N.W.2d 155, 159 (Minn. 2004). Rourke did not waive his right to a jury trial on the aggravating factors.
Rourke also argues that the custody-status point used to determine his 98-month presumptive sentence violated Blakely. Rourke argues that because the determination that he was in a custody status when he committed the current offense increased his sentence (from a presumptive 86 months to a presumptive 98 months) was made by the court rather than by a jury and was not a finding as to a prior conviction, it violated his Sixth Amendment right to a jury trial.
This court has recently rejected the argument that Blakely applies to the determination of a custody-status point. State v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004), pet. for review filed (Minn. Jan. 26, 2005). That opinion concludes that the custody-status point need not be found by the jury. Id. (noting custody-status point is analogous to fact of prior conviction, which falls under Blakely exception, and is also established by court’s own records). Under Brooks, Rourke can be assigned a custody-status point without a determination by a jury.
Because the upward durational departure violated appellant’s right to a jury trial under Blakely, that departure must be reversed. The matter must be remanded to the district court for resentencing consistent with Blakely. But we reject appellant’s argument that, if the appropriate remedy is imposition of the presumptive sentence, that presumptive sentence must be calculated without the use of the custody-status point.
Reversed and remanded.
 The supreme court granted review in Conger, but stayed further processing of that matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004). By order filed 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 violated the defendant’s right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam). The court indicated that a full opinion would follow and directed supplemental briefing addressing the appropriate remedy. Id.