This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Victor Lee Cotton,




Filed March 22, 2005

Reversed and remanded

Randall, Judge


Ramsey County District Court

File No. K8-03-178



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


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


John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southwest, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            On remand from the Minnesota Supreme Court for reconsideration of appellant’s sentence in light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), appellant argues that his sentence violated his Sixth Amendment rights because Blakely requires a fact-finder to find that appellant’s offenses and behavior lead to a conclusion that he is a danger to public safety.  The state agrees with appellant’s Blakely analysis.  Thus, we reverse appellant’s sentence and remand to the district court for resentencing.       


            Appellant Victor Cotton pleaded guilty to second-degree aggravated robbery on March 19, 2003.  Shortly thereafter, the state filed a motion requesting that appellant be sentenced as a dangerous offender under Minn. Stat. § 609.1095, subd. 2 (2002).  The state requested a double upward durational departure from the presumptive sentence (60 months) for second-degree aggravated robbery to a sentence of 120 months.  The district court found that appellant was 38 years old and had seven prior convictions of either simple or aggravated robbery.  Due to his high frequency and long history of criminal activity, the district court found appellant to be a danger to public safety as defined by
Minn. Stat. § 609.1095, subd. 2.  The district court then granted the state’s motion and sentenced appellant to a double upward durational departure of 120 months.

            Appellant appealed his sentence, and this count affirmed.  Appellant subsequently petitioned for review, and on September 21, 2004, the Minnesota Supreme Court granted review, vacated the opinion of this court, and remanded the matter to the court of appeals for reconsideration in light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004).


Appellant argues that the upward durational departure imposed on him violates 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 greatest sentence a judge can impose is “the maximum sentence[2] [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 (emphasis in
original).  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, that increases the sentence above this maximum.  Id. at 2543.  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.  In a dissenting opinion, Justice Sandra Day O’Connor stated that the Blakely majority opinion “casts constitutional doubt” over all state guidelines systems, including Minnesota’s.  Id. at 2549.  While not identical, Washington’s sentencing scheme and Minnesota’s are similar enough that Minnesota courts have not tried to get out from under the impact of Blakely, but rather, now apply the Blakely analysis to departures.

Shortly after Blakely was decided, this court issued State v. Mitchell, 687 N.W.2d 393 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).  In Mitchell, the defendant was convicted of felony theft, and was sentenced to an upward durational departure from the sentencing guidelines under the career-offender statute.  In reversing the defendant’s sentence, this court concluded that Minnesota’s career-offender sentencing statute, Minn. Stat. § 609.1095, subd. 4 (2002), is within the ambit of Blakely.  Mitchell, 687 N.W.2d at 399-400.  The court stated that although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an
upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct.  Id.

            Similar to Mitchell, the defendant in State v. Fairbanks was convicted of first-degree kidnapping following a trial based on stipulated evidence, and sentenced to a double upward departure under Minn. Stat. § 609.1095, subd. 2 (2002).  688 N.W.2d 333 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  On appeal, this court noted that under the dangerous-offender subdivision contained in section 609.1095, subd. 2, the district court may durationally depart from the sentencing guidelines if the defendant is found to be a “danger to public safety.”  Id. at 336.  The court stated that the “danger-to-public-safety finding may include ‘past criminal behavior’ or ‘the fact that the present offense of conviction involved an aggravating factor.’”  Id.  In reversing the defendant’s sentence, the court held that “[w]hile the stipulated facts of Fairbanks’s trial could permit a simple finding of ‘past criminal behavior,’ we conclude that the statutory provision that the defendant’s criminal behavior have a ‘high frequency rate’ or ‘long involvement’ in criminal activity requires additional factual findings.”  Id.  

            In this case, the district court sentenced appellant to an upward durational departure based on judicial findings that appellant is a dangerous offender as defined in Minn. Stat. § 609.1095, subd. 2.  Those findings included a conclusion that appellant’s criminal behavior has a “high frequency rate” or “long involvement” in criminal activity.  Under Blakely, absent the defendant waiving his right to have a jury decide those factual issues, those findings need to be made by a jury.  See Blakely, 124 S. Ct. at 2537; see also Fairbanks, 688 N.W.2d at 336.  The state concedes that under Blakely, appellant’s analysis is correct and agrees that appellant is entitled to be resentenced.  Accordingly, we reverse appellant’s upward sentence and remand to the district court for resentencing.

            Reversed and remanded.

[1] A more extensive overview of the facts of this case is contained in State v. Cotton, No. A03-1355 (Minn. App. June 29, 2004), order vacated, review granted, case remanded (Minn. Sept. 21, 2004).

[2] Under Minnesota law, the “maximum sentence” referred to in Blakely is not the statutory maximum, but rather the presumptive fixed sentence established by the Minnesota Sentencing Guidelines for each respective offense.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004).