This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).







State of Minnesota,





Coleman Weous,




Filed June 28, 2005

Reversed and remanded

Lansing, Judge


Mille Lacs County District Court

File No. KX-03-56



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Janice Kolb, Mille Lacs County Attorney, Courthouse Square, Milaca, MN 56353 (for respondent)


John Stuart, State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and


Mark D. Kelly, Special Assistant Public Defender, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)


††††††††††† Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† In this direct appeal from sentencing for two counts of second-degree felony murder, Coleman Weous challenges the constitutional validity of the district courtís upward durational departure from the guidelines sentence. †Because the upward departure is based on judicial findings of aggravating factors that were not submitted to a jury and because Weous did not stipulate to these facts and did not waive his right to assert a Sixth Amendment challenge, we reverse and remand for sentencing consistent with Blakely v. Washington, 124 S. Ct. 2531 (2004).


††††††††††† A jury found Coleman Weous guilty of two counts of second-degree felony murder for his participation with two others in the murder of Melvin Eagle. †At sentencing, Weous moved for a downward departure from the presumptive guidelines sentence of 150-months imprisonment.† The state opposed a downward departure and argued that the facts warranted an upward departure because the victim was particularly vulnerable, the act was particularly cruel, and three people participated in the crime.† The district court denied the downward-departure motion because it determined that Eagle was not the aggressor, that Weousís participation was more than minor, and that Weousís involvement was not the product of coercion or duress.

The district court granted the stateís motion and sentenced Weous to 240 months in prison, an upward durational departure by a factor of 1.6.† The district court based its departure on the victimís particular vulnerability due to extreme intoxication, lack of consciousness, and incapacity to defend himself from the blows that resulted in his death.† It also found that Weousís participation in the fatal beating was particularly cruel because the evidence showed that Weous repeatedly struck Eagleís face and head with an aluminum dustpan, using sufficient force to break the dustpanís handle.† The severity of the beating was substantiated by an immense quantity of blood on Weousís shoes.

Weous did not admit or stipulate to the facts that supported the aggravating factors of particular vulnerability and particular cruelty, and he did not waive his right to a jury determination of the sentencing factors.† Weous appeals, arguing that the upward durational departure was based on judicial findings and was therefore unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004).


††††††††††† A sentence that exceeds the statutory maximum for reasons based on judicially determined facts, other than the fact of a prior conviction, violates a defendantís Sixth Amendment right to a jury trial.† Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004).† Under Blakely, the statutory maximum sentence is the greatest sentence a judge may impose solely on the basis of the facts reflected in the juryís verdict or admitted by the defendant, not the maximum sentence a judge may impose after finding additional facts.† 2537.A defendant therefore has a Sixth Amendment right to a jury determination of any fact that increases the sentence above this maximum.† Id. at 2543.† Because a challenge to a sentence under Blakely presents a constitutional issue, we review the challenge de novo.† State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

††††††††††† Minnesota courts have concluded that Blakely applies to the Minnesota sentencing guidelines.† State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004); State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).† If the United States Supreme Court announces a new rule of federal constitutional procedure when a defendantís case is pending, the defendant is entitled to benefit from that rule.† OíMeara v. State, 679 N.W.2d 334, 339 (Minn. 2004).† The Courtís holding in Blakely is a new constitutional rule.† See State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004) (reasoning that Blakely is new constitutional rule for case that became final before Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)), review denied (Minn. Jan. 20, 2005); see also State v. Houston, 689 N.W.2d 556, 559 (Minn. App. 2004) (holding that Blakely is new constitutional rule because not dictated by Apprendi), review granted (Minn. Jan. 26, 2005).† Because Weous appeals directly from his conviction and sentence, he is entitled to consideration of his sentence under the new rule of Blakely.† See OíMeara, 679 N.W.2d at 339 (stating that case is pending if defendant has not exhausted right to appeal and certiorari).

††††††††††† The aggravated-sentence factors of whether a defendant committed a crime with particular cruelty and whether the victim was particularly vulnerable turn on factual determinations.† Weous neither stipulated to these underlying facts nor waived his right to a jury determination of these facts.† Under Blakely, the district courtís decision to impose an upward durational departure on the basis of these factors, rather than permit a jury to make the necessary factual determinations, amounts to a violation of Weousís Sixth Amendment right.† Blakely, 124 S. Ct. at 2543.

††††††††††† Relying on State v. Leja, 684 N.W.2d 442 (Minn. 2004), the state argues that Weous waived the application of Blakely because he did not assert in the district court that the departure was invalid under Apprendi.† But Leja states only that a defendantís failure to raise the Apprendi issue on appeal waives application of Blakely; it does not address the failure to raise Apprendi in the district court.† Leja, 684 N.W.2d at 447 n.2.† We have previously determined that a defendantís failure to raise Apprendi in the district court does not waive his right to assert Blakely on direct appeal.† State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).†

††††††††††† Finally, the state requests that this court sever the provisions of the sentencing guidelines that require mandatory application and make the guidelines advisory, consistent with the Supreme Courtís approach in United States v. Booker, 125 S. Ct. 738 (2005).† For two reasons we decline to follow this approach.† First, Weous submitted his brief before the release of Booker and has not had the opportunity to address effectively its implications.† Consequently the severance issue is more reasonably addressed on remand.† And second, the Minnesota Supreme Court is currently considering the remedy aspect of Blakely, which will provide guidance to the district court in addressing this issue. †Shattuck, 689 N.W.2d at 786.† Deferring this issue to permit a consistent and comprehensive determination on full briefing will better serve the interests of reasonable sentencing procedure.† See State v. Barker, 692 N.W.2d 755, 760-61 (Minn. App. 2005) (declining to specify Blakely remedy), review granted (Minn. May 17, 2005).

††††††††††† Reversed and remanded.