This opinion will be unpublished and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
Donald Wallace Butler,
Filed November 29, 2005
Reversed and remanded
Ramsey County District Court
File No. K2-02-1414
John M. Stuart, State Public Defender, Rochelle R. Winn,
Assistant Public Defender,
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.
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.
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.
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.
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 (
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
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
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 (
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 (
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.
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 (
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 [
(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.
The legislature’s amendment added a subdivision regulating sentencing
departures through the use of sentencing juries. 2005