This opinion will be unpublished and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 June 14, 2005
Reversed and remanded
Hennepin County District Court
File No. 03084289
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*
Because the durational departure was based on judicial, rather than jury, findings, we conclude that appellant’s right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004), was violated. We therefore reverse appellant’s sentence and remand for resentencing.
D E C I S I O N
The United States Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S. Ct. at 2537, made it clear that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Italics added.)
Minnesota Supreme Court held that Apprendi/Blakely
applies to upward durational departures under the Minnesota Sentencing
Guidelines. State v. Shattuck, 689 N.W.2d 785 (
The district court here sentenced appellant to an upward durational departure based on the career offender statute, which permits a judge to impose
an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (2004). In State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004),this court held that the determination of whether a defendant’s criminal record creates a pattern of criminal conduct is one that must be made by a jury, unless there is a jury waiver by the defendant.
argues that appellant waived his right to challenge his sentence under Apprendi/Blakely by failing to raise the
issue to the district court. A defendant
may base an appeal on a decision announcing a new rule of federal
constitutional criminal procedure if his or her conviction is not yet
pro se brief, appellant maintains that he is innocent of the crime, a claim
that we interpret as a challenge to the sufficiency of the evidence. Our review of a claim of insufficiency of the
evidence is limited to a thorough analysis of the record to determine whether
the evidence, viewed in the light most favorable to the conviction, is
sufficient to allow the jury to reach its verdict. State
We therefore reverse appellant’s sentence and remand this matter to the district court for resentencing.
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
 The supreme court granted review in Saue, but stayed additional processing of that matter pending a final decision in State v. Shattuck, 689 N.W.2d 785 (Minn. Dec. 16, 2004) (per curiam order).