This opinion will be unpublished and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
Larry Allen Moran,
Filed May 17, 2005
File No. KX-03-488
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, Minnesota 56007 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414; and
Stephen K. Warch, Halleland Lewis Nilan & Johnson, P.A., Special Assistant State Public Defender, 600 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, Minnesota 55402-4501 (for appellant)
Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
charged appellant Larry Moran with aiding and abetting second-degree assault,
Minn. Stat. §§ 609.222, subd. 1 and 609.05 (2002); third-degree assault, Minn.
Stat. § 609.223, subd. 1 (2002); and fifth-degree assault, Minn. Stat. §
609.224, subd. 1 (2002). The charges
were based on an altercation that occurred at a bar in
A jury found appellant guilty of third-degree assault and fifth-degree assault but acquitted appellant of aiding and abetting second-degree assault. The district court found that appellant used a dangerous weapon during the assault and sentenced appellant under the enhancement statute, Minn. Stat. § 609.11 (2002). This appeal follows.
Appellant argues that the district court’s imposition of an enhanced sentence based on the judge’s finding violates the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).
review a constitutional challenge to a statute de novo. 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 sentencing judge may not impose a sentence greater than “the maximum
sentence [that may be imposed] solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
presumptive sentence for third-degree assault, given appellant’s criminal
history score of 1, is 15 months stayed.
Any defendant convicted of [a qualifying offense] in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon other than a firearm, shall be committed to the commissioner of corrections for not less than one year plus one day, nor more than the maximum sentence provided by law.
The district court explained that it determined “by a preponderance of evidence that a dangerous weapon was used in the assault.”
Appellant argues that the upward
sentencing departure violates his Sixth Amendment right to a jury trial under Blakely. The state argues (1) Blakely does not
the upward sentencing departure violated appellant’s Sixth Amendment right to a
jury trial under Blakely. Blakely
applies to upward durational departures under the Minnesota Sentencing
Guidelines. See State v.
Shattuck, 689 N.W.2d 785, 786 (
Barker, the district court sentenced Barker under section 609.11,
subdivision 5, the firearm-enhancement statute, after it found that Barker
possessed a handgun at the time he possessed drugs.
appellant has not waived his right to challenge his sentence under Blakely
by not raising an Apprendi challenge to the district court.
In his pro se brief, appellant
challenges the sufficiency of the evidence to support his convictions. Pro se litigants are generally held to the
same standards as attorneys. Heinsch
v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). An assignment of error in a brief that is not
supported by argument or authority is waived unless prejudicial error is
obvious on mere inspection. State v.
Modern Recycling, Inc., 558 N.W.2d 770, 772 (
Reversed and remanded.