This opinion will be unpublished and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 7, 2005
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. K1-04-114
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant State Public Defender,
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.
Obadyah Habukkuk Israel, a/k/a Andre Donnelle Barnes, was charged with one
count of second-degree attempted murder in violation of Minn. Stat.
§ 609.19, subd. 1(1) (2002), and two counts of first-degree aggravated
robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002). As part of a plea agreement, appellant
pleaded guilty to both counts of first-degree aggravated robbery, and the state
dismissed the attempted-murder charge. At
the plea hearing, appellant admitted that on January 8, 2004, he approached a
woman at a bus stop in
At the sentencing hearing, the parties agreed that appellant’s sentence should be 150 months for each count, an upward durational departure from the presumptive guideline sentences. The district court followed the terms of the plea agreement and sentenced appellant to 150 months in prison for each count of aggravated robbery, to be served concurrently. The district court stated that the upward durational departure was justified because appellant agreed to the plea, admitted that the first victim received substantial injuries, and had a history of committing violent crimes.
This appeal follows.
Custody Status Points
argues that under Blakely v. Washington,
Blakely, the Court held that a
defendant has a Sixth Amendment right to have the prosecutor prove to the jury “all
facts legally essential to the punishment” except for the fact of a prior
points, along with the defendant’s prior criminal record, are used to calculate
the defendant’s criminal-history score.
Upward Durational Departure
also argues the upward durational departure of his sentence violates the holding
in Blakely. We have concluded that Blakely applies to upward durational departures from the Minnesota
Sentencing Guidelines. State v. Conger, 687 N.W.2d 639, 644-45
(Minn. App. 2004), review granted (
State v. Hagen, we addressed the
“admission exception” to Blakely. 690 N.W.2d 155 (
waives his or her constitutional right to a jury trial on the sentencing issue, “[a]n upward durational departure under the Minnesota Sentencing Guidelines may not be based on an ‘admission’ by the defendant, under Blakely v. Washington, unless the ‘admission’ to an aggravating factor is accompanied by the defendant’s waiver of his or her right to a jury trial on the aggravating factor.”
Here, at the time he pleaded guilty, appellant admitted that he robbed two women and stabbed one of them. But his admission cannot be used to support an upward durational sentencing departure unless he also waived his right to a jury determination of aggravating factors. See id. at 156. Appellant was not informed that he had a right to have a jury determine any fact used to support an upward durational sentencing departure. He could not waive the right to such a jury determination without being fully informed of this right. See id. at 158-59. Therefore, appellant’s sentence violates his right to a jury trial under Blakely, and we reverse and remand for resentencing consistent with Blakely.
Affirmed in part, reversed in part, and remanded.
First-degree aggravated robbery is a severity-level VIII offense.