This opinion will be unpublished and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
Christine Marie LaFontaine,
Reversed and remanded
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,
John Stuart, State
Public Defender, Theodora Gaitas, Assistant Public Defender,
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.
appealed her sentence, and this court affirmed in State v. LaFontaine, No. C8-03-184 (
D E C I S I O N
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).
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
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 (
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. 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).
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.
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.
 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.
 The state concedes that under O’Meara, appellant’s Blakely claim applies retroactively.