This opinion will be unpublished and

may not be cited except as provided by

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





State of Minnesota,





Christine Marie LaFontaine,



Filed July 26, 2005

Reversed and remanded

Randall, Judge


Clearwater County District Court

File No. K6-02-177


Mike Hatch, Attorney General, Thomas Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Kip O. Fontaine, Clearwater County Attorney, 213 Main Avenue North, Dept. 301, Bagley, MN  56621 (for respondent)


John Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N


            On appeal from order denying her motion to correct her sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), appellant argues that Blakely applies to her sentence and that the upward durational departure based on guidelines aggravating factors found by the district court violated her right to a jury trial.  Appellant also argues that the proper remedy is imposition of the presumptive sentence. 

            Appellant’s sentence comes under the purview of recently clarified rights under Blakely.  We do not dictate what the correct sentence is, but rather, we reverse and remand to the district court for resentencing consistent with this opinion.


            On June 12, 2002, with a blood-alcohol concentration of .23, appellant Christine LaFontaine drove her car into a bridge abutment.  Appellant’s 11-year-old-son, a passenger in the front seat, died as a result of the collision.  Appellant’s four-year-old daughter and another child were in the back seat and were unharmed.  A partially full beer can was found on the driver’s-side floor.  One of the deputies at the scene overheard appellant state:  “Alcohol should be outlawed; I did this.”

            Appellant was charged with three counts of criminal vehicular homicide; two counts of first-degree driving while impaired; four counts of second-degree driving while impaired; two counts of child endangerment; and one count of driving after revocation.  Pursuant to a plea agreement, appellant pleaded guilty to one count of criminal vehicular homicide and two counts of child endangerment.  Under the terms of the agreement, appellant would be sentenced to 44 months in prison, a sentence at the lower end of the presumptive range.  But before the sentencing hearing, the district court, on its own, filed a departure notice, advising the parties that the court was considering an upward departure from the presumptive guidelines sentence. 

            At the sentencing hearing, the district court told appellant that it would not accept the sentencing portion of the plea agreement and asked if she wanted to withdraw her guilty pleas.  Appellant chose to maintain her guilty pleas.  The prosecuting attorney asked the court to sentence appellant according to the plea negotiations, acknowledging that it was the court’s prerogative not to do so.

            After hearing several family members present testimony on appellant’s behalf, the district court sentenced appellant to 96 months in prison, a double upward departure from the presumptive sentence of 48 months.  Appellant was also sentenced to concurrent one-year terms on the child endangerment convictions.  The district court listed the following bases for the upward durational departure:

1.       The [appellant] violated a position of confidence or trust ([appellant] is the parent of the victim).  [Appellant] created and exposed the victim to risk of harm and violated her fiduciary duty to protect the victim from harm.

2.       The [appellant] had a high alcohol concentration (.23).

3.       The offense had an adverse impact on others.  There were two other children in the vehicle who will experience trauma in regard to the accident and death of the victim.

4.       The victim was vulnerable as a child placed in the front seat of the vehicle.

5.       The [appellant] was on probation for a prior DWI and at the time of the offense there was an outstanding warrant for a probation violation.


            Appellant appealed her sentence, and this court affirmed in State v. LaFontaine, No. C8-03-184 (Minn. App. Aug. 19, 2003).  The supreme court granted appellant’s petition for review, but ultimately affirmed without an opinion on the matter.  State v. LaFontaine, 679 N.W.2d 153 (Minn. 2004).  In June 2004, Blakely v. Washington, 124 S. Ct. 2531 (2004), was decided.  Appellant subsequently moved the district court to have her sentence modified in accordance with the Blakely decision.  The district court denied the motion.  This appeal followed.        


            Appellant argues that her sentence must be reduced to the presumptive term because the district court violated her constitutional right to a jury trial when it imposed an upward durational departure based on its own factual findings.  A Blakely argument raises a constitutional question, which this court reviews de novo.  See State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).

            In Blakely, the Supreme Court held that the greatest sentence that a judge may impose is “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 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  We have held that aggravating factors supporting an upward durational departure under the Minnesota Sentencing Guidelines must be found by a jury pursuant to the United States Supreme Court’s holding in Blakely.  See State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), pet. for review filed (Minn. Nov. 10, 2004).[1]  Here, the district court based the upward durational departure on judicially found facts, rather than a jury’s verdict.  We conclude Blakely applies, and appellant is entitled to relief.

            The state argues that appellant waived her Blakely challenge to the durational departure by failing to object to it at sentencing.  See State v. Leja, 684 N.W.2d 442, 447-48 n.2 (Minn. 2004).  In Leja, however, the supreme court reduced the upward departure on other grounds.  Id. at 450.  Further, Blakely was not released until after Leja had been argued.  Id. at 447 n.2.  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 (Minn. Jan. 20, 2005).  The Fairbanks court concluded that a case is “pending” as long as appellant has not exhausted “all the rights to appeal and certiorari,” and that if Blakely issues are raised on direct appeal, they are properly before this court.  Id.; see O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004) (stating that “a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”).   

            Appellant’s sentence was affirmed by the Minnesota Supreme Court on April 29, 2004.  See LaFontaine, 679 N.W.2d at 153.  Blakely was decided on June 24, 2004, well before the 90-day time for a petition for certiorari to the Supreme Court elapsed.[2]  Sup. Ct. R. 13.1.  Because Blakely established a new rule of constitutional criminal procedure and because appellant’s case was “pending” at the time of the decision, she has not waived her claim and is entitled to the benefit of Blakely. See Fairbanks, 688 N.W.2d at 337 (recognizing Blakely as a new rule of law).

            Appellant argues that the district court erred in denying her motion for correction of her sentence on the basis that appellant “admit[ted] the underlying facts which formed the basis for th[e] Court’s departure findings” during her guilty plea and sentencing hearings.  We agree.  When a defendant pleads guilty, any upward durational departure imposed must be supported by findings of fact that are based solely on facts admitted by the defendant.  See Conger, 687 N.W.2d at 644-45.  Even if the upward departure imposed by the district court was based on facts that appellant admitted in her guilty plea, this court held that an upward durational departure under the Minnesota Sentencing Guidelines may not be based on a defendant’s admission unless the admission to an aggravating factor is accompanied by the defendant’s waiver of his right to a jury trial on the aggravating factor.  State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004).  A defendant’s waiver of his right to a jury trial does not extend, without more, to a waiver of the constitutional rights imbedded in Blakely.  That waiver has to be specific.  See Fairbanks, 688 N.W.2d at 336-37 (holding that a defendant’s knowing waiver of the right to a jury trial on a criminal charge is not presumed to constitute a waiver of the defendant’s right to have a jury determine any facts necessary to a subsequent sentencing decision).  

            Here, when appellant made her admissions at the guilty plea hearing, she was admitting guilt for purposes of the guilty plea.  Appellant did not admit the underlying facts which formed the basis for the district court’s departure findings.  When appellant waived her right to a jury trial, she did not knowingly waive her Blakely right to a jury trial on claimed aggravating factors.  The district court’s imposition of an upward durational departure violated appellant’s right to a jury trial under Blakely

            Appellant contends that the proper remedy is for this court to mandate the imposition of the presumptive sentence.  We disagree.  The supplemental briefing ordered in Shattuck indicates that the remedy issue has not been settled.  See 689 N.W.2d at 786.  We reverse and remand to the district court for resentencing “consistent with this opinion.”  See, e.g., Conger, 687 N.W.2d at 645 (remanding the matter to district court for resentencing after finding defendant’s sentence invalid); State v. Saue, 688 N.W.2d 337, 347 (Minn. App. 2004) (remanding for resentencing after concluding that sentence violated defendant’s Sixth Amendment right to a jury trial). 

We understand appellant’s desire for this court to just impose the presumptive sentence and end the matter.  However, the state does retain an interest in appearing at the resentencing and arguing for whatever they choose to argue.  Thus, a remand is proper.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The supreme court granted review in Conger on December 22, 2004, but stayed additional processing of the matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shuttuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by a jury was a violation of the defendant’s rights as articulated in BlakelyState v. Shattuck, 689 N.W.2d 785 (Minn. 2004) (per curiam).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id. 

[2] The state concedes that under O’Meara, appellant’s Blakely claim applies retroactively.