This opinion will be unpublished and

may not be cited except as provided by

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







Donald Wallace Butler,





State of Minnesota,




Filed November 29, 2005

Reversed and remanded

Halbrooks, Judge



Ramsey County District Court

File No. K2-02-1414



John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for respondent)


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for appellant)




            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


The state appeals the district court’s order granting respondent’s petition for postconviction relief and imposing the presumptive sentence without holding a hearing on the issue of resentencing.  Because the state requested a hearing in its reply to respondent’s petition and because the issue of the appropriate remedy for an unconstitutional sentence under Blakely is to be litigated in the district court, we reverse and remand.


            Respondent Donald Butler was convicted of second-degree burglary following a jury trial.  The district court imposed a 72-month executed sentence, which reflected a one-third upward durational departure based on the fact that respondent is a career offender under Minn. Stat. § 609.1095, subd. 4 (2002).  Respondent appealed his conviction to this court, alleging a Miranda violation, ineffective assistance of counsel, and prosecutorial misconduct.  See State v. Butler, No. CX-03-171 (Minn. App. Apr. 13, 2004).  This court affirmed respondent’s conviction.  Id.  The Minnesota Supreme Court denied further review on May 26, 2004.  Id. 

            On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Respondent then filed a petition for postconviction relief in the district court, seeking a sentence modification under Blakely.  The state replied to the petition, asserting that Blakely did not apply to respondent’s sentence; but if the district court found that it did apply, the state requested a hearing to determine the appropriate remedy.  Thedistrict court found that Blakely applied to respondent’s sentence because his conviction was not yet final at the time the Supreme Court issued Blakely, but did not conduct a hearing to determine the remedy.  Instead, the district court merely resentenced respondent by imposing the presumptive sentence.  This appeal follows.


            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

The United States Supreme Court held that an upward departure is unconstitutional unless the facts supporting the departure were either admitted by the defendant or found beyond a reasonable doubt by a jury.  Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004). 

            If a court finds that a sentence is unconstitutional, this court has stated that

in Blakely, the Court did not remand for imposition of a sentence within the “standard range” under Washington law, but instead remanded “for further proceedings not inconsistent with this opinion.”  We agree with the state’s argument that [defendant] is not automatically entitled on remand to a reduction of his sentence to the presumptive sentence.  But the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated here and must be determined in the first instance by the district court.


State v. Hagen, 690 N.W.2d 155, 160 (Minn. App. 2004) (citation omitted); see also State v. Thompson, 694 N.W.2d 117, 123 (Minn. App. 2005), review granted (Minn. June 28, 2005).  In addition, this court refused to merely impose the presumptive sentence when a defendant requested that relief and instead remanded the case for a hearing on the resentencing.  State v. LaFontaine, No. A04-2027, 2005 WL 1743752, at *4 (Minn. App. July 26, 2005) (“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.”), review granted (Minn. Oct. 18, 2005).

This court stated that it was apprehensive about determining the appropriate remedy on remand because the Minnesota Supreme Court “implied that placing the facts regarding the sentencing enhancement before a jury may require the ‘inherent authority’ of that court.”  State v. Barker, 692 N.W.2d 755, 760 (Minn. App. 2005) (quoting State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004)), aff’d, ___ N.W.2d ___ (Minn. 2005).

            The supreme court recently addressed this issue by stating:

In the area of sentencing, both the legislature and the judiciary exercise constitutionally authorized functions.  The power to fix the limits of punishment for criminal acts lies with the legislature, but the imposition of a sentence in a particular case within those limits is a judicial function. . . . [W]e leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with [Blakely].


State v. Shattuck, 704 N.W.2d 131, 148 (Minn. 2005), reh’g granted (Minn. Oct. 6, 2005).

            The supreme court then granted respondent’s petition for rehearing and amended its opinion by stating:

We note that the legislature has recently enacted significant new requirements for aggravated sentencing departures, including sentencing juries and bifurcated trials, and that these changes apply both prospectively and to resentencing hearings.  We express no opinion about these recent changes, and do not foreclose the district court from considering any constitutionally applicable and/or available laws on remand.


Id. at 148 n.17 (citation omitted).[1]


Here, after the Supreme Court decided Blakely, respondent filed a petition for postconviction relief in the district court seeking a sentence modification.  Originally, the district court imposed a 72-month executed sentence, which reflected a one-third upward durational departure.  The factors supporting the upward departure were not found by a jury or admitted by respondent.  The state replied to respondent’s petition, asserting that Blakely did not apply to his sentence, but requested an evidentiary hearing to determine the appropriate remedy and procedure for resentencing if the district court determined that Blakely did apply. 

The district court found that the sentence imposed violated respondent’s Sixth Amendment right to a jury.  Cf. O’Meara v. State, 679 N.W.2d 334 (Minn. 2004) (holding that newly announced rules of constitutional criminal procedure should be retroactively applied to cases pending on direct review).  The district court did not, however, hold a hearing to determine what the appropriate remedy is.  Instead, the district court modified respondent’s sentence by imposing the presumptive sentence. 

The district court found that “[n]o evidentiary hearing was requested by either party.”  But in its reply to respondent’s petition, the state asserted:

In the event that the Court disagrees with [the state], then the matter should be set for a hearing at which [Butler] may elect either to have the matter submitted to a jury or to the Court.  The Court will also need to decide, with the assistance of the parties, how the matter may be dealt with “consistent with” the Blakely decision.


(Emphasis added.)  Thus, the state did request a hearing regarding the appropriate remedy and procedure for resentencing if the district court found that Blakely applied to respondent’s sentence.  Therefore, the district court clearly erred in finding that neither party requested a hearing.

Thompson and Hagen established that the appropriate remedy for a sentence that is unconstitutional under Blakely mustbe initially determined by the district court.  Thompson,694 N.W.2d at 123; Hagen,690 N.W.2d at 160.  An issue is not litigated if the district court does not give the parties an opportunity to be heard, either through additional briefing or a hearing.  Thus, under Hagen and its progeny, the district court abused its discretion by automatically imposing the presumptive sentence without first litigating what the appropriate remedy is.  

            Reversed and remanded.

[1] The legislature’s amendment added a subdivision regulating sentencing departures through the use of sentencing juries.  2005 Minn. Sess. Law Serv. ch. 136, art. 16, § 6, subd. 5 (West 2005).  The first procedure is a unitary trial, where the prosecutor would present evidence regarding the substance of the offense as well as evidence regarding the aggravating factors during the trial.  Id., subd. 5(b).  The second procedure is a bifurcated trial, with separate guilt and sentencing phases.  Id., subd. 5(c).