This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed April 26, 2005
in part, reversed in part, and remanded
Anoka County District Court
File No. K1-04-954
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.*
After pleading guilty, appellant Khang Yang was sentenced to a presumptive term of 27 months in prison for first-degree burglary; 54 months for second-degree assault involving one victim, which represents a double durational departure; and 21 months for second-degree assault of another victim. The district court ordered the 54-month assault sentence to be served concurrently with the burglary sentence, and the 21-month assault sentence to be served consecutively.
from his sentences, appellant challenges the district court’s decision imposing
an upward durational departure, based on aggravating factors, and imposing a
permissive consecutive sentence, based on a finding that the crimes were
“crimes against persons.” See
decision to depart from the presumptive sentence generally rests within the
discretion of the district court and will not be disturbed absent a clear abuse
of discretion. State v. Givens,
544 N.W.2d 774, 776 (
the Supreme Court held 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
first challenges the district court’s decision to impose an upward durational
departure. This court has held that Blakely
precludes an upward durational departure based on aggravating factors that are
found by a sentencing court rather than by a jury. State v. Conger, 687 N.W.2d 639 (Minn.
App. 2004), review granted (
court, however, recently held that a defendant’s admissions to aggravating
factors during a plea hearing fail to satisfy the requirements of Blakely,
when a waiver of the right to a jury determination does not accompany such
admissions. State v. Senske, 692
N.W.2d 743, 746 (
Appellant also challenges the district court’s decision to impose a permissive consecutive sentence based on its finding that the two second-degree assault offenses, which involved two different victims, were “crimes against persons” under Minn. Sent. Guidelines II.F.2. He argues that because the issue of whether the offenses were crimes against persons was determined by the district court and not by a jury, Blakely applies. While appellant’s arguments are persuasive, this court recently held that Blakely was not implicated by permissive consecutive sentencing based on a judicial finding that the offenses were crimes against persons. Senske, 692 N.W.2d at 748-79. The district court’s decision to impose consecutive sentences thus did not violate appellant’s Sixth Amendment right to a jury trial.
We therefore affirm the district court’s decision to impose consecutive sentences, but reverse its decision to depart based on aggravating factors, and remand for resentencing under Blakely.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 While the supreme court has granted review in
Conger, a decision in Conger has been stayed pending a final
decision in State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004)
(order). In Shattuck, the supreme
court held that the imposition of an upward durational departure based on
aggravating factors not considered by a jury was a violation of the defendant’s
rights as articulated in Blakely.
The court further indicated that a full opinion would follow and
directed the parties to submit additional briefs on the appropriate