This opinion will be unpublished and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
Lucas J. Rettke,
Filed May 3, 2005
Reversed and remanded
Crow Wing County District Court
File No. KX-02-2833
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Donald F. Ryan, Crow Wing County Attorney, Janine L. LePage, Assistant County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
John Stuart, State Public
Defender, Margaret Millington, Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
this direct appeal from sentencing for third-degree burglary, Lucas Rettke
challenges the district court’s upward durational departure under the career-offender
statute. Because Rettke did not waive
his right to a jury determination that his offense was committed as part of a
pattern of criminal conduct, we reverse and remand for sentencing consistent
with Blakely v. Washington, 124
F A C T S
Lucas Rettke pleaded guilty to second-degree burglary under a plea agreement that provided for a thirty-six-month sentence. The agreement was negotiated with the mutual understanding that Rettke had a criminal-history score of four, which would place the thirty-six-month sentence at the low end of the guidelines presumptive range. During the presentence investigation, the investigator determined that Rettke’s criminal-history score was six rather than four and that the presumptive sentence was between forty-six and fifty months. To salvage the plea agreement, the prosecution and the defense agreed to a procedure whereby Rettke would withdraw his plea, the prosecutor would amend the charge to third-degree burglary, and Rettke would plead to the amended charge which resulted in a presumptive sentence of thirty months.
The state requested that the court impose the agreed-on sentence of thirty-six months. Rettke initially objected to receiving more than thirty months, but withdrew his objection when the prosecutor responded that, without an agreement on a thirty-six month sentence, he would argue for imposition of the sixty-month statutory maximum. Relying on the career-offender statute, the district court imposed a sentence of thirty-six months, an upward durational departure of six months from the presumptive guidelines’ sentence.
The district court determined that the
departure was appropriate because Rettke and the prosecutor had agreed to the
thirty-six-month sentence, Rettke had five or more prior felony convictions,
and the current offense was a felony that was committed as part of a pattern of
criminal conduct. Rettke appeals,
arguing that the upward durational departure was based on judicial findings and
was therefore unconstitutional under Blakely
v. Washington, 124
D E C I S I O N
A sentence that exceeds the
statutory maximum violates a defendant’s Sixth Amendment right to a jury trial
if it is based on judicially determined aggravating factors other than the fact
of a prior conviction. Blakely
Rettke did not stipulate that his current offense of third-degree burglary constituted a pattern of criminal conduct that justified departure under the career-offender statute. Because the factual basis for Rettke’s sentencing departure was not part of the stipulated facts or the result of a jury determination, the upward durational departure constitutes judicial fact-finding, which violates Rettke’s right to a jury trial.
state argues that Rettke waived his Sixth Amendment right to a jury
determination of the facts necessary to support the upward departure because he
agreed to accept the thirty-six-month sentence to avoid a prosecutorial
argument for imposition of the statutory
maximum. A waiver of the constitutional
right to trial by jury must be knowing, voluntary, and intelligent.
Rettke’s acceptance of the thirty-six-month sentence does not constitute a knowing or express waiver of his constitutional right to a jury determination on whether his current offense was committed as part of a pattern of criminal conduct. Because the record does not establish a knowing waiver of his right to a jury determination of the factors that permit departure under the career-offender statute, Rettke did not waive his Sixth Amendment right, and we therefore reverse and remand for resentencing consistent with Blakely and Shattuck.
Reversed and remanded.