This opinion will be unpublished
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Robert Allen Fuller,
Hennepin County District Court
File No. 04017448
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 Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant challenges the upward durational departure of
his sentence, arguing that it must be modified to the presumptive term under Blakely v. Washington, 124
application of Blakely v.
“Other 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.” Apprendi v.
Appellant argues that the appropriate remedy is a remand for imposition of the presumptive sentence because his Sixth Amendment rights were violated when a jury did not determine the existence of aggravating factors used for the upward departure and he did not waive the right to have a jury make that determination. See Hagen, 690 N.W.2d at 158-59 (holding that, under Blakely, upward durational departure may not be based on defendant’s “admission” unless it is accompanied by waiver of right to a jury trial on the admitted aggravating factor). The state, on the other hand, argues that: (1) Blakely does not apply to sentencing under the Minnesota Sentencing Guidelines; (2) even if Blakely applies, appellant waived his rights by not making an Apprendi/Blakely claim in the district court; and (3) even if Blakely applies and appellant has not waived his rights, the appropriate remedy is a remand for a new sentencing hearing, not for imposition of the presumptive sentence.
The first two prongs of
the state’s arguments are without merit.
First, Blakely applies to
upward durational departures under the guidelines in
Second, contrary to the
state’s position, appellant has not waived his rights under Blakely by failing to raise the issue in
the district court. Cf. State v. Leja, 684 N.W.2d 442, 447-48 n.2 (Minn. 2004)
(deciding case based on Minnesota sentencing jurisprudence, and not based on Apprendi/Blakely principles, where the
appellant waived any argument concerning Blakely). In Leja,
Blakely was not briefed on appeal,
and the supreme court reversed the upward departure on other grounds, making it’s
discussion of waiver dictum.
Furthermore, a defendant is “entitled to the benefit of Blakely even though he did not assert
his Sixth Amendment rights at trial.” State v. Fairbanks, 688 N.W.2d 333, 337
(Minn. App. 2004), review granted (
Blakely applies to all cases pending on direct review at the time Blakely was released and to subsequent
direct appeals. See State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (
The third prong of the
state’s argument, however, is meritorious.
Although the supplemental briefing ordered in Shattuck indicates that the remedy issue has not been settled, this
court has routinely handled Blakely violations
by remanding for further proceedings consistent with Blakely, but not specifying a particular remedy. See,
e.g., Hagen, 690 N.W.2d at 160; State
v. Johnson, 689 N.W.2d 247, 254 (Minn. App. 2004), review denied (
Reversed and remanded.