This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed July 19, 2005
Polk County District
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Greg Widseth, Polk County
Attorney, Scott A.
Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101,
Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, Benjamin
Assistant State Public Defender, Scott Ikeda,
Certified Student Attorney, 2221
University Avenue Southeast, Suite 425, Minneapolis,
MN 55414 (for appellant)
Considered and decided by Willis, Presiding
Judge, and Shumaker,
P U B L I S H E D O P I N I O N
Pedro Rodriguez pleaded guilty to four counts of
controlled substance crime, one count of failing to affix a tax stamp, and one
count of felon in possession of a firearm, arising out of activity that
occurred between January 2003 and March 5, 2004. The district court sentenced appellant to 278
months for conspiracy to commit controlled substance crime, an upward durational
departure; as well as 158 months for possession of a controlled substance with
intent to sell, to be served concurrently; and 60 months for felon in
possession of a firearm, to be served consecutively. Appellant challenges the sentence imposed by
the district court.
the district court imposed a sentence that is an upward durational departure
from the presumptive sentence based solely on judicially found facts, in
violation of appellant’s Sixth Amendment rights, we reverse and remand for
resentencing in accordance with Blakely
v. Washington, 124 S. Ct. 2531 (2004).
D E C I S I O N
district court’s sentencing departures are reviewed for an abuse of
discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).
But a Blakely challenge raises
a constitutional issue, which this court reviews de novo. See State
v. Wright, 588 N.W.2d 166, 168 (Minn. App.
1998), review denied (Minn. Feb. 24,
In Blakely v. Washington,
124 S. Ct. 2531, 2536 (2004), the United
States Supreme Court held that other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the statutory maximum, which
is the presumptive sentence under a sentencing guidelines scheme, must be
submitted to a jury and proved beyond a reasonable doubt, or admitted by the
defendant. The Minnesota Supreme Court
has acknowledged the applicability of Blakely
to the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).
appellant waived his right to a jury trial on the issue of his guilt, he did
not waive his right to a jury finding on sentencing. Waiver of a jury for sentencing purposes must
be explicit and cannot be extrapolated from waiver of a jury trial on the issue
of guilt. See State v. Fairbanks,
688 N.W.2d 333, 336 (Minn. App. 2004)
(rejecting state’s argument that waiver of trial by jury extended to sentencing
proceedings), review granted (Minn. Jan. 20, 2005). In Fairbanks,
this court based its decision on the principle that waiver of a jury trial right
must be knowing, intelligent, and voluntary; a waiver is not knowing if the
defendant is not aware that a trial waiver extends beyond the issue of guilt to
sentencing proceedings. Id. Because appellant was not informed of his
right to have a jury find facts beyond a reasonable doubt before he could be
sentenced to an upward durational departure, he could not waive this right in a
knowing and intelligent fashion.
Under Blakely, 124 S. Ct. at 2537, the district court may exceed
the presumptive sentence “solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.”
We have stated that “[t]he effect of a defendant’s admission to an
aggravating [sentencing] factor is to waive the defendant’s constitutional
right to a jury trial on the sentencing issue.”
State v. Hagen, 690 N.W.2d 155, 158 (Minn. App. 2004). Because the waiver of a jury trial must be
knowing, intelligent, and voluntary, “stipulations to facts constituting
elements of the offense may no longer be accepted as effective but informal
waivers of the jury-trial right without a full-scale, on-the-record oral or
written waiver.” Id.
at 159. We concluded that stipulation to
an aggravating sentencing factor is no different from stipulating to an element
of the offense and therefore requires the same formality. Id.
argues that the United States Supreme Court’s more recent decision in United States v. Booker, 125 S. Ct. 738
(2005), may have changed the impact of Blakely. In Booker,
a sharply divided Court affirmed the holding of Blakely and extended it to the federal sentencing guidelines; in
the remedial portion of the opinion, however, the Court excised the language
from the guidelines that made them mandatory, in effect rendering the federal
guidelines advisory. Id.
at 756-57. Because this holding relies
specifically on a severability analysis predicated on congressional intent, Booker’s impact on the Minnesota guidelines is not clear. We therefore decline to extend its holding to
also challenges the district court’s use of a custody status point in
determining his criminal history score, because he was no longer under the
supervision of the court on the date of offense. He argues that the determination of whether
he had a custody status point is a fact issue, which must be determined by a
jury rather than a judge.
In State v. Brooks, 690 N.W.2d 160, 163
(Minn. App. 2004), review granted (Minn. Mar. 15, 2005), this
court stated that determination of an offender’s criminal history score,
including custody status points, is “analogous to Blakely’s exception for the fact of a prior conviction.” We reasoned that custody status points are
determined by the court’s own records and are based on prior convictions; further,
a presumptive sentence is meaningless without a criminal history score, and a
jury’s verdict does not determine the score.
status point may be assigned when the offender commits the “current offense
within the period of the initial length of stay pronounced by the sentencing
judge for a prior felony[.]” Minn. Sent. Guidelines
II.B.2.c. The comment to the rule states:
The Commission believes that the potential for a custody
status point should remain for the entire period of the initial length of stay
pronounced by the sentencing judge. An
offender who is discharged early but subsequently is convicted of a new felony
within the period of the initial length of stay should still receive the
consequence of a custody status point.
Sent. Guidelines cmt. II.B.201. Here, in
1998, appellant was given a sentence of 78 months, stayed for 40 years; in
2004, he was discharged from probation.
Under the reasoning of the sentencing guidelines, because the initial
stay of his sentence would have been 40 years, he could receive a custody
the district court’s determination of an offender’s criminal history score will
not be reversed absent an abuse of discretion.
State v. Stillday, 646 N.W.2d
557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002). Because there is a basis in the record for
assignment of a custody status point, the district court did not abuse its
discretion and may assign appellant a custody status point on resentencing.
appellant received an upward durational departure from the presumptive sentence
based on judicially found facts, we reverse his sentence and remand for further
proceedings consistent with this opinion.
Reversed and remanded.