This opinion will be unpublished and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
Filed August 23, 2005
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
John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public
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
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
On June 6, 2004,
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.
D E C I S I O N
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 novo. State v.
In Blakely v. Washington, 542
court has held that the Minnesota Sentencing Guidelines are subject to the
analysis set forth in Blakely. State
v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (
[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.
Appellant argues that under
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
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 (
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
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.
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).
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.
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.
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 (