This opinion will be unpublished and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
Sheila A. Rinehart,
Reversed and remanded
Hennepin County District Court
File No. 04035149
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134, and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State
Public Defender, G. Tony Atwal, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from conviction and sentence for fifth-degree controlled substance crime, appellant argues that her sentence under the firearm-enhancement statute violates her right to a jury trial under Blakely because it was based on a judicial finding that appellant possessed a firearm that increased the risk of violence. Appellant also contends that evidence that the firearm was found under a mattress away from the drugs was insufficient to establish that enhancement under the statute was justified. Because the factual determinations necessary for the sentence enhancement are a violation of appellant’s right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004), we reverse and remand.
On May 29, 2004, law enforcement received a call from the manager of the Extended Stay Hotel concerning the smell of marijuana smoke coming from room 328. Two police officers responded to the scene, and they discovered that the registered guest of room 328, Negieh Deanne Masrojhe, had felony warrants out for her arrest. After knocking on the door, appellant Sheila Rinehart let the officers into the room, where the officers observed drug paraphernalia and several Oxycontin and Alprazolam pills lying around the room. Officers also discovered a .22 caliber pistol under the mattress. Appellant and Masrojhe were subsequently arrested, and appellant was charged with two counts of controlled substance crime in the fifth-degree, each involving “firearm enhancement” under Minn. Stat. § 609.11, subd. 5 (2004).
On June 9, 2004, appellant pleaded guilty to one count of controlled substance crime in the fifth-degree. At the plea hearing, appellant admitted to possession of Oxycontin without a prescription. Appellant also admitted that she knew that the gun was under the mattress, and that the gun was hers. In exchange for her guilty plea, the state agreed to recommend a 36-month sentence, and to not pursue a felon-in-possession of a firearm charge against appellant. Appellant was subsequently sentenced to an enhanced term of 36 months imprisonment based on the district court’s finding that “the gun was in close proximity to the drugs and may have been used in furtherance of a drug transaction.” This appeal followed.
D E C I S I O N
argues that the enhanced sentence imposed on her based on the judge’s findings
violates the Supreme Court’s holding in Blakely
v. Washington, 124
In Blakely, the Supreme Court held that the sentencing judge may not
impose a sentence greater than “the maximum sentence [that
may be imposed] solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” Blakely, 124
Under Minn. Stat. § 609.11, subd. 5(a) (2004):
[A]ny defendant convicted of [a qualifying offense] . . . in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law.
disagree. Recently, this court stated in
State v. Hagen, that “we cannot
conclude that Blakely leaves a
defendant free to stipulate to a ‘sentencing factor’ without complying with the
requirements pronounced in Wright for
waiver of a jury trial on an element of the offense.” 690 N.W.2d 155, 159 (
Here, appellant’s “stipulation” was not accompanied by a personal oral or written waiver of her right to a jury trial on the element of whether the firearm’s presence increased the risk of violence. The district court enhanced appellant’s sentence based on judicial findings that “the gun was in close proximity to the drugs and may have been used in furtherance of a drug transaction.” The factual determinations necessary for the sentence enhancement are a violation of appellant’s right to a jury trial under Blakely.
Appellant also contends that the evidence that the firearm was found under a mattress away from the drugs was insufficient to establish that enhancement under the statute was justified. It is clear that the trial court had to make factual determinations concerning the firearm found under a mattress, enough to bring the Blakely issue into play.
The issue on appeal is the sentence, not the charges. Neither side raised or briefed the issue of whether the state can now attempt to bring back the charges dismissed as part of the plea agreement since the plea agreement contained an agreement as to both the charge and the recommended sentence, and we are reversing on the sentence. Since this issue was not raised, we decline to address it.
The sentence enhancement was a violation of appellant’s right to a jury trial on sentencing factors under Blakely. The sentence is reversed and the case remanded to the district court for further proceedings consistent with this opinion.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In analyzing Blakely’s effect on
 This court held in Wright that a defendant’s stipulation to
an element of an offense must be supported by a personal oral or written waiver
of the defendant’s right to a jury trial on that element. State
v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied