This opinion will be unpublished and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 22, 2005
Reversed and remanded
Polk County District Court
File No. K4-02-1722
Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716; and
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
Appellant Mark Wayne Horn challenges his sentence for felony murder, arguing that the district court erred in imposing an upward durational departure based on facts not admitted by appellant or found by a jury. We reverse and remand for resentencing.
Colleen Maryann Horn, the wife of appellant Mark Wayne Horn, disappeared on May 8, 2001. Approximately two months later, her body was discovered in a shallow grave but was so decomposed that the medical examiner was not able to determine the cause of death. In December 2002, a grand jury indicted appellant on four counts of murder: first-degree murder, premeditated; first-degree murder, while committing domestic abuse; second-degree murder, intentional; and second-degree murder, felony murder under Minn. Stat. §§ 609.185(1), (6), .19, subds. 1(1), 2(1) (2000).
In a pretrial motion, the state moved to admit at trial videotaped testimony of appellant’s young son. In the videotaped statement, the son stated that he watched from the stairs as his parents fought. He stated that he saw his father cut his mother with a knife and then put her in a truck outside. The district court denied the state’s motion to admit the videotaped testimony without requiring the son to testify at trial. But the district court reserved its ruling on the issue of whether the videotaped statement was admissible as a prior consistent statement until it was determined whether the son would testify at trial and that such evidence would be admissible under the rules of evidence.
In October 2003, appellant entered an Alford plea, admitting there was a substantial probability that a jury would find him guilty of a more serious offense but not admitting that he committed the offense to which he pleaded guilty. Pursuant to the plea agreement, appellant pleaded guilty to one count of second-degree felony murder. The prosecutor dropped the three remaining charges.
After reviewing the presentence-investigation report, written memoranda from both parties, written and oral victim impact statements, and testimony and evidence from an earlier omnibus hearing, the district court imposed a 240-month sentence on appellant, an upward durational departure of 75 months from the presumptive sentence. The district court stated that the upward durational departure was appropriate because of several aggravating factors: the crime was committed in appellant’s home when children were present; the victim was particularly vulnerable because of the presence of her minor children; and appellant concealed the victim’s body.
D E C I S I O N
Appellant argues the upward durational departure of his sentence from the presumptive 165 months to 240 months violates the United States Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court held that a defendant has a Sixth Amendment right “to insist that the prosecutor prove to a jury all facts legally essential to the punishment[,]” except for the fact of a prior conviction. Id. at 2543, 2533. Thus, under the Sixth Amendment, the “statutory maximum” sentence a district court may impose based on its own 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.” Id. at 2537 (emphasis omitted). Because appellant’s challenge to his sentence raises a constitutional issue, we review the challenge de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
In State v. Conger, this court ruled that the holding in Blakely applies to Minnesota’s sentencing guidelines and “a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.” 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004). Therefore, when a district court judge imposes a sentence greater than the presumptive sentence established by the Minnesota Sentencing Guidelines Commission, the reasons for the upward durational departure must be supported either by the defendant’s admissions or a jury’s findings. Id. But an admission by a defendant cannot support an upward durational departure unless the defendant waives his right to a jury trial on the aggravating factor. State v. Hagen, 690 N.W.2d 155, 159-60 (Minn. App. 2004).
The state argues that because appellant did not challenge his sentence at the district court level on the basis of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, appellant has waived his claim. But we have recently held that a criminal defendant is entitled to have his or her sentence reconsidered under Blakely even if the defendant did not raise the issue to the district court. State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005) (appeal stayed pending Shattuck); see also State v. Petschl, ___ N.W.2d ___, 2004 WL 3131308, at *6-7 (Minn. App. 2004) (explaining that the Blakely decision applies to all cases pending on direct review at the time the Supreme Court released Blakely), review denied (Minn. Jan. 20, 2005). Here, appellant’s case was pending on direct review at the time Blakely was released, appellant submitted his brief after Blakely was issued, and in his brief he has clearly raised the constitutional issues set forth in Apprendi and Blakely.
Because appellant neither waived his right to have a jury find the facts that could be used to support an aggravating factor nor admitted the facts that the district court found supported the aggravating factors used to impose an upward durational departure, we conclude appellant was sentenced in violation of his Sixth Amendment rights. Appellant contends that we must reduce his sentence to the presumptive term of 165 months, while the state argues that we should remand the case for further development of the record and resentencing. But the remedy issue has not yet been settled in Minnesota. See Shattuck, 689 N.W.2d at 786 (ordering supplemental briefing on the appropriate remedy). Accordingly, we remand for resentencing consistent with Blakely.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The supreme court granted review in Conger but stayed additional processing of that matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004). By order filed in Shattuck on December 16, 2004, 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. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam). The court indicated that a full opinion will follow and directed the parties to submit additional briefs on an appropriate remedy. Id.