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be unpublished and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
State of Minnesota,
Terrell A. Berry,
Filed May 3, 2005
Affirmed in part,
reversed in part, and remanded
File No. 03061085
Mike Hatch, Attorney General, 1800
NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County
Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government
Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public
Defender, Richard Schmitz, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis,
Considered and decided by Willis,
Presiding Judge; Lansing, Judge; and Stoneburner, Judge.
N P U B L I S H E D O P I N I O N
district court sentenced Terrell Berry
under the dangerous-offender statute to consecutive upward durational
departures on two counts of first-degree burglary. Berry
appeals, arguing that the consecutive sentences and the upward durational
departures are constitutionally invalid under Blakely v. Washington, 124 S. Ct.
2531 (2004). Because this court has
previously held that Blakely does not
apply to consecutive sentences, we affirm the consecutive sentencing. But because the durational departures are
based on judicially determined facts in violation of Berry’s right to a jury trial under Blakely, we reverse and remand for
determination of the individual sentences.
A C T S
2003, Terrell Berry,
posing as a female, entered the apartment of an eighty-one-year-old blind man,
claiming to be someone from the office. Berry asked the victim
for money and was given $2. He then went
into the victim’s bedroom and took $420.
returned to the apartment in July 2003 and stole some checks he later cashed.
Berry pleaded guilty to
two counts of first-degree burglary. He
was sentenced under the dangerous-offender statute to consecutive sentences of
120 months on the first count, which is a double durational departure from the
presumptive sentence, and 60 months on the second count, which is an upward
departure from the 21-month presumptive sentence. The court based the departures on findings
was a danger to public safety, had a high-frequency rate of offending, and had
a long history of criminal activity. The court also relied on aggravating
factors that would justify a departure under the sentencing guidelines,
including the victim’s vulnerability and the particular cruelty of the
crime. These findings were neither
admitted by Berry
nor found by a jury. Berry appealed,
contending that the sentences rely on judicially determined facts and are
therefore constitutionally invalid under Blakely
v. Washington, 124 S. Ct. 2531 (2004).
E C I S I O N
argues that the upward durational departures the district court imposed on each
count are unconstitutional under Blakely
v. Washington, 124 S. Ct. 2531 (2004), because
they exceed the statutory maximum and are based on judicially determined
aggravating facts that were neither admitted by him nor found by a jury. This court reviews constitutional issues de
novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
sentence violates the defendant’s Sixth Amendment right to a jury trial when it
exceeds the statutory maximum and is based on judicially determined aggravating
facts, other than the fact of a prior conviction, that were neither admitted by
the defendant nor found by a jury. Blakely, 124 S. Ct. at 2536-37. For Blakely purposes, the statutory
maximum sentence is the greatest sentence a judge may impose solely on the
basis of the facts reflected in the jury’s verdict or admitted by the
defendant, not the maximum sentence a judge may impose after finding additional
Minnesota Supreme Court has issued a per curiam order, pending release of a full
opinion, holding that Blakely applies
to upward durational departures under the Minnesota Sentencing Guidelines. State
v. Shattuck, 689 N.W.2d 785, 786 (Minn.
2004). In Shattuck, the court reversed the imposition of an upward durational
departure under the repeat sex-offender statute, Minn. Stat. § 609.109,
subd. 4 (2002), reasoning that the departure was based on aggravating factors
not considered by a jury and that it therefore violated the defendant’s Sixth
Amendment right to a jury trial under Blakely. Shattuck,
689 N.W.2d at 786.
This court has similarly held that the
statutory findings required for a durational departure under the
dangerous-offender statute must be made by a jury. State v. Fairbanks, 688
N.W.2d 333, 336 (Minn. App. 2004), review granted (Minn.
Jan. 20, 2005) (stayed pending disposition in Shattuck). Fairbanksis consistent with Shattuck.
district court sentenced Berry
under the dangerous-offender statute to a double durational departure from the
presumptive sentence on both counts. The
dangerous-offender statute provides that when imprisonment is the presumptive
sentence and the sentencing judge is imposing an executed sentence, the judge
may depart durationally up to the statutory maximum sentence, provided the
offender was at least eighteen years old at the time the felony was committed,
the court determines . . . that the
offender has two or more prior convictions for violent crimes; and
the court finds that the offender is a danger to public
safety and specifies on the record the basis for the finding, which may
(i) the offender’s past criminal behavior, such
as the offender’s high frequency rate of criminal activity or juvenile
adjudications, or long involvement in criminal activity including juvenile adjudications;
(ii) the fact that the present offense of
conviction involved an aggravating factor that would justify a durational
departure under the Sentencing Guidelines.
§ 609.1095, subd. 2 (2002).
The district court based its
dangerous-offender departure on judicial findings that Berry was a danger to public safety, had a
high-frequency rate of offending, and had a long criminal history. The court also relied on judicial findings
that the victim was vulnerable and that the crime was particularly cruel, both
aggravating factors that would justify a departure under the sentencing
Sent. Guidelines II.D.2.b (listing vulnerable victim and cruelty as aggravating
factors). Because Berry’s
sentence exceeds the maximum sentence the district court could impose solely on
the basis of the facts reflected in his plea and relies on facts that were
neither admitted by Berry nor found by a jury,
the sentence deprived Berry
of his right to a jury trial under Blakely.
state argues that Berry
waived his right to raise a Blakely
challenge on appeal by failing to object in the district court. But a defendant does not waive his right to a
jury trial on the aggravating sentencing factors merely by failing to object to
his sentence; instead, because a constitutional right is involved, the waiver
must be knowing, voluntary, and intelligent.
State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004) (stating
that because “[t]he effect of a defendant’s admission to an aggravating factor
is to waive the defendant’s constitutional right to a jury trial on the
sentencing issue,” admission must be accompanied by full waiver of right to
jury trial on aggravating factors); Fairbanks, 688 N.W.2d at 336-37
(holding that by agreeing to trial on stipulated facts, defendant did not waive
his right to have findings necessary to support upward sentencing departure
made by jury). The record in this case
does not establish that Berry
knowingly and intelligently waived his right to have a jury make the findings
necessary to support an upward departure from the presumptive sentence.
relying on State v. Henderson, No. A03-1898, 2004 WL
1925395, at *1 (Minn. App. Aug. 31, 2004), review
granted (Minn. Nov. 23, 2004), the state
argues that Blakely does not apply to
a sentence under the dangerous-offender statute. In Henderson,
this court upheld an upward durational departure under the career-offender
statute even though the departure was based on the sentencing court’s finding
that defendant had engaged in a “pattern of criminal conduct.” Id. at *1-*2. The court reasoned that a jury finding on the
pattern-of-criminal-conduct factor was not required because the defendant’s
prior criminal record implied a pattern of criminal conduct. Id.
at *2. But Hendersonhas been implicitly
overruled by Shattuck. See
Shattuck, 689 N.W.2d at 786 (invalidating upward durational departure under
repeat sex-offender statute because departure was based on judicially
determined aggravating factors not admitted by defendant or considered by
this case, as in Fairbanks, although the facts Berry admitted in his guilty plea permit a
plain finding of past criminal behavior, they do not permit a finding that he
was a danger to public safety or that he had a high-frequency rate of offending
and a long history of criminal activity.
Nor do they permit findings on the additional aggravating factors on
which the district court based the departure, including the vulnerability of
the victim and the particular cruelty with which Berry committed the crime. Accordingly, the upward durational departures
are constitutionally invalid under Blakely and must be reversed.
Berry also argues that because his offenses
were not “crimes against a person” for purposes of permissive consecutive sentencing
under the guidelines, the imposition of consecutive sentences violates his
Sixth Amendment right to have the jury determine the facts supporting the
enhancement of his sentence. See Minn. Sent. Guidelines II.F (providing that “[a] current felony conviction for a crime against a
person may be sentenced consecutively to a prior felony sentence for a crime
against a person which has not expired or been discharged”).
this court has held that Blakely does
not apply to consecutive sentences imposed for separate crimes, in part because
the jury does not determine the permissibility of multiple sentences under the
Double Jeopardy Clause or Minn. Stat. § 609.035, subd. 1 (2002). See
State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005) (holding that when
sentencing on multiple counts, district court may impose consecutive sentences
based on judicial finding that offenses were “crimes against
persons” without violating Blakely); see also O'Meara v. State, 679 N.W.2d 334, 341 (Minn. 2004) (reducing
consecutive terms to 25 years each under Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), even though combined sentenced would have violated 25-year
statutory maximum). The Senske court noted that the holdings in Blakely and Apprendi are limited to the enhancement of a sentence for a single
crime and do not therefore extend to consecutive sentencing, which determines
the relationship between two or more sentences separately imposed for different
offenses. Senske, 692 N.W.2d at 747-48.
Berry was sentenced to
consecutive sentences for two separate offenses. Because the consecutive sentences were for
different offenses, the district court did not violate Berry’s Sixth Amendment right to a jury
trial under Blakely by imposing
consecutive sentences based on judicial findings. We therefore affirm the district court’s
decision to make Berry’s
in part, reversed in part, and remanded.