This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Richard McFee,




Filed August 23, 2005


Worke, Judge


Ramsey County District Court

File No. K2-04-2373


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)


John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a conviction of terroristic threats, appellant argues that the use of a juvenile-adjudication point and a custody-status point in the calculation of his criminal-history score is a violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because we find that juvenile-adjudication points are analogous to custody-status points, which we previously held can be established by the court’s own records and do not require a jury trial, we affirm. 



On June 6, 2004, Maplewood police were dispatched to investigate a report of terroristic threats.  The victim, N.M., informed the police that she received several threatening calls that day from appellant Richard McFee against whom she had an existing order for protection.  N.M. told the police that appellant threatened to kill her, her baby, and anyone else residing in the home.  Appellant also told her that he was close by, so he would know if she called the police.  N.M. told the police that she was very frightened and believed that appellant was capable of carrying out his threats.

            Appellant was arrested and charged with one count of terroristic threats.  Appellant pleaded guilty on October 4, 2004.  The court ordered a presentence investigation (PSI) report be completed and scheduled the sentencing for October 27, 2004.  The PSI reflected that appellant had three felony points, one misdemeanor/gross misdemeanor point, one custody-status point (because appellant was on probation when he committed the instant offense), and one point for prior juvenile adjudications (because as a juvenile, appellant was adjudicated delinquent on two counts of simple robbery and onecount of fleeing police in a motor vehicle).  Appellant’s total criminal-history score was six points. 

At the sentencing hearing, appellant objected to the use of the custody-status point and juvenile adjudications to enhance his sentence.  The matter was continued to allow the parties to brief the issue.  Appellant filed a motion with the court to preclude the use of the juvenile and custody-status points.  On November 17, 2004, the court denied appellant’s motion and sentenced appellant to the presumptive sentence of 30 months in prison. 


Juvenile-Adjudication Point


            Appellant argues that the district court violated his Sixth Amendment right to a jury trial by including a juvenile point in the calculation of his criminal-history score.  This issue presents a constitutional question, which this court reviews de novoState v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). 

            In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the United States Supreme Court examined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  In Apprendi, the Court held that the Sixth Amendment to the United States Constitution requires that “[o]ther 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, 530 U.S. at 490, 120 S. Ct. at 2362-63.  In Blakely, the Court concluded that the statutory maximum means “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537.  Under a guidelines sentencing scheme, the maximum sentence a judge may impose, based on the facts of the jury verdict or admitted by the defendant, is the presumptive sentence.

            This court has held that the Minnesota Sentencing Guidelines are subject to the analysis set forth in BlakelyState v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  In Conger, this court stated:

 [U]nder the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.


Id. at 644.  Under the sentencing guidelines, the presumptive sentence is determined by computing an offender’s criminal-history points.  Minn. Sent. Guidelines II.B.  An offender’s criminal-history score is composed of points for prior adult felony convictions (II.B.1), a determination of whether the offender was on “probation” when the instant offense was committed (II.B.2), up to one point if the offender has a prior adult misdemeanor and/or gross misdemeanor (II.B.3), and up to one point if the offender has prior juvenile-delinquency adjudications (II.B.4). 

            Appellant argues that under Minnesota law, juvenile adjudications are not considered “convictions” and, therefore, do not fall within the “prior convictions” exception under Apprendi and Blakely.  Minn. Stat. § 260B.245, subd. 1 (2002) (“No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities imposed by conviction, nor shall any child be deemed a criminal by reason of this adjudication, nor shall this adjudication be deemed a conviction of crime . . .”).  Further, juvenile delinquents do not serve sentences; rather, the court imposes a disposition intended to rehabilitate the child, not punish him or her.  In light of the fact that juvenile offenders are not punished, the state is relieved of the need to afford them the right to a jury trial.  See McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 1986 (1971) (holding the Sixth Amendment does not guarantee jury trial for juvenile offenders); see also Minn. Stat. § 260B.163, subd. 1 (2002) (providing that juvenile-delinquency proceedings shall be without a jury).   

            In further support of his argument, appellant directs the court’s attention to State v. Boehl, 697 N.W.2d 215 (Minn. App. 2005).  In Boehl, the district court imposed a ten-year conditional-release term under Minn. Stat. § 609.109, subd. 7 (2004), after concluding that Boehl’s prior juvenile adjudication for third-degree criminal sexual conduct was a qualifying offense under Minn. Stat § 609.346, subd. 5 (1996).  Boehl, 697 N.W.2d at 219.  This court held that juvenile adjudications are not qualifying criminal-sexual-conduct convictions requiring the imposition of the mandatory ten-year conditional-release term.  Id. at 222-23.  The distinction between Boehl and this case, however, is that the juvenile adjudication in Boehl was used to support an upward departure from the presumptive sentence.  Here, appellant’s juvenile adjudications were used to calculate the presumptive sentence. 

            Respondent argues that the use of juvenile-adjudication points is analogous to the use of custody-status points.  We agree.  In State v. Brooks, 690 N.W.2d 160 (Minn. App. 2004), review granted (Minn. March 15, 2005), this court held that a custody-status point included in a criminal-history score was not subject to jury determination.  This court specifically held that, “[l]ike the fact of a prior conviction, custody-status points are established by the court’s own records . . . . Moreover, the concept of a ‘presumptive sentence’ is meaningless without a criminal-history score, which includes status points.  And a jury’s verdict does not determine that score.”  Brooks, 690 N.W.2d at 163 (citations omitted).    The use of juvenile adjudications in the calculation of criminal-history scores is analogous to the use of a custody-status point because whether a defendant has prior juvenile adjudications is established by looking at the court’s records.  A defendant has no right to a jury finding to establish whether the defendant has prior juvenile adjudications.

Simply put, appellant requests that this court extend the application of Blakely to the calculation of the presumptive sentence.  In support of this extension, appellant cites to caselaw from other jurisdictions.  See United States v. Jones, 332 F.3d 688 (3rd Cir. 2003), cert. denied, 540 U.S. 1150 (2004); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002), cert. denied, 537 U.S. 1114 (2003); State v. Hitt, 42 P.3d 732 (Kan. 2002), cert. denied, 537 U.S. 1104 (2003); State v. Brown, 879 So.2d 1276 (La. 2004).  Minnesota, however, has held that the maximum sentence that a judge may impose is the presumptive sentence.  See Conger, 687 N.W.2d at 643-644.  The presumptive sentence under the Minnesota Sentencing Guidelines is calculated using juvenile adjudications in the criminal-history score.  Minn. Sent. Guidelines II.B.  Any extension of the existing rule in Blakely is a task most appropriately reserved for the supreme court.  See Northfield Ins. Co. v. St. Paul Surplus Lines Ins. Co., 545 N.W.2d 57, 62 (Minn. App. 1996) (“[T]he Minnesota Supreme Court is the appropriate forum to address a question regarding the extension of existing law”), review denied (Minn. June 19, 1996). 

Appellant has no constitutional right to have the question of his juvenile adjudications submitted to a jury and, therefore, the district court could find the juvenile point on its own without violating appellant’s Sixth Amendment right as applied in Blakely

Custody-Status Point


            Appellant also argues that the use of a custody-status point constitutes judicial fact finding and violates his Sixth Amendment right as applied in Blakely.  A challenge to a defendant’s sentence raises a constitutional issue, which we review de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). 

            As previously noted, this court held in Brooks that Blakely does not require a jury finding to establish custody-status points as part of the defendant’s criminal-history score.  Brooks, 690 N.W.2d at 163-164.  The Brooks court concluded that the determination of a criminal-history score, including the custody-status point, is analogous to the Blakely exception for the fact of a prior conviction.  Id. at 163.  “[C]ustody status points are established by the court’s own records” and are “based on the fact that a person has one or more prior convictions.”  Id. 

The district court in this case determined appellant’s presumptive sentence based in part on appellant’s criminal-history score, which included a custody-status point because appellant was on probation when he was arrested.  Whether appellant was on probation at the time is established by looking at the court’s records and is based on appellant’s prior conviction.  As this court held in Brooks, the district court need not submit the question of a custody-status point to the jury and could find the custody point on its own without violating appellant’s Sixth Amendment right as applied in Blakely.


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

[1] The Minnesota Supreme Court granted review in Conger, but stayed additional processing of the matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  On December 16, 2004, the supreme court issued an order in Shattuck, holding that imposing of an upward durational departure under the sentencing guidelines based on aggravating factors not considered by the jury violated the defendant’s rights as articulated in BlakelyState v. Shattuck, 689 N.W.2d 785, 786 (Minn. Dec. 16, 2004).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.