This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Obadyah Habakkuk Israel,




Filed June 7, 2005

Affirmed in part, reversed in part, and remanded

Dietzen, Judge


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, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N



Following his guilty plea to two counts of first-degree aggravated robbery, appellant was sentenced by the district court to an executed concurrent sentence of 150 months for each count, which is an upward durational departure from the presumptive sentence.  Appellant challenges the sentence imposed on the basis that the use of a custody-status point to determine the presumptive sentence, and the upward departure from the presumptive sentence, both violate his Sixth Amendment right to a jury trial as announced in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because custody points were used to calculate appellant’s criminal-history score and his presumptive sentence, we affirm that portion of the sentence.  Since the upward durational departure of his presumptive sentence was based on appellant’s admissions to aggravating factors and appellant did not waive his right to a jury determination of such factors, we reverse and remand that portion of the sentence. 



Appellant 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 St. Paul.  When she refused to give him her purse, he stabbed her in the abdomen with his knife and then stole her purse.  Appellant also admitted that a short time later he approached another woman on the street and asked for her purse.  Appellant and the woman struggled over the purse until appellant threatened her with the knife, and she gave her purse to him.

            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.[1] 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

Appellant argues that under Blakely v. Washington, 124 S. Ct. 2531 (2004), he has the right to have a jury determine his custody-status points, which affect the length of his presumptive sentence under the Minnesota Sentencing Guidelines.  Minn. Sent. Guidelines II.B.  Appellant argues that because the assignment of a custody-status point is a judicial finding that increases the presumptive sentence, Blakely requires the issue of custody-status points to be determined by a jury.

In 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 conviction. 2536, 2543.  The Court explained that the maximum sentence a district court may impose is the maximum sentence supported solely by the “facts reflected in the jury verdict or admitted by the defendant.”  Id. at 2537.  Because appellant’s challenge to his sentence raises a constitutional issue, we review the challenge de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

Custody-status points, along with the defendant’s prior criminal record, are used to calculate the defendant’s criminal-history score.  Minn. Sent. Guidelines II.B.  We have previously determined that the calculation of a defendant’s criminal-history score, including custody-status points, “is analogous to Blakely’s exception for the ‘fact of a prior conviction.’”  State v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004), (quoting Blakely, 124 S. Ct. at 2536), review granted (Minn. Mar. 15, 2005).  In Brooks, we concluded that a defendant does not have the right to a jury determination of the defendant’s criminal-history score or custody-status points.  Id. at 163-64.  Custody-status points are established by court records and are based on the number of prior convictions a defendant has.  Id. at 163.  Moreover, custody-status points are necessary to determine a defendant’s presumptive sentence; they do not increase a defendant’s presumptive sentence.  Id.  Therefore, Blakely does not require a jury to determine appellant’s custody-status points, and the district court’s determination of appellant’s custody-status points did not violate appellant’s rights.

Upward Durational Departure

Appellant 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 (Minn. Dec. 22, 2004).[2]

In State v. Hagen, we addressed the “admission exception” to Blakely.  690 N.W.2d 155 (Minn. App. 2004).  In Hagen, the defendant pleaded guilty to first-degree criminal sexual conduct, admitting that he sexually penetrated the 13-year-old victim.  Id. at 156-57.  At the sentencing hearing, the defense attorney admitted that the defendant “[did] not deny” there were some “very aggravating factors.”  Id. at 157.  But because the defendant “was not informed that he had a right to a jury determination on any fact used to support an upward sentencing departure,” we concluded that the district court’s imposition of an upward durational departure violated the defendant’s right to a jury trial.  Id. at 159-60.  We held that because a defendant’s admission to an aggravating factor
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.”  Id. at 156, 158 (citation omitted).

            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.

[1] First-degree aggravated robbery is a severity-level VIII offense.  Minn. Sent. Guidelines IV.  With a criminal-history score of 3, the presumptive sentence is 78 months.  Id.  And for the second count of aggravated robbery, the criminal-history score would be 4, and the presumptive sentence is 88 months.  Id.

[2] The Minnesota supreme court granted review in Conger but stayed additional processing of the matter until a final decision is released in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  The supreme court held in an order in the Shattuck case that the imposition of an upward durational departure from the sentencing guidelines based on aggravating factors the jury did not consider violated the defendant’s rights as articulated in BlakelyState v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The supreme court indicated that a full opinion will follow and directed the parties to submit supplemental briefs on an appropriate remedy.  Id.