This opinion will be unpublished and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
Jeremy A. Luckhardt,
Filed November 8, 2005
Reversed and remanded
Lyon County District Court
File No. K1-02-433
Mike Hatch, Attorney General, 1800
Richard R. Maes, Lyon County Attorney,
John M. Stuart, State Public Defender, Roy G. Spurbeck,
Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge; Toussaint, Judge; and Dietzen, Judge.
Appellant challenges the district court’s order and judgment resentencing him following a decision of this court affirming his conviction of two counts of first-degree controlled substance crimes, but reversing the sentence for count one and remanding both for resentencing. Appellant argues that his sentence was an upward departure that violated his constitutional rights under Blakely. Because his direct appeal was pending when Blakely was decided and the sentence violates his rights under Blakely, we reverse.
On July 23, 2002, appellant Jeremy A. Luckhardt was convicted of first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b) and 609.05, subd. 1 (2002), for selling 10 grams or more of a mixture containing methamphetamine (count one); and first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b), and 609.05 subd. 1, for possession with intent to sell methamphetamine (count two).
The district court ordered concurrent 220-month sentences on both counts one and two, an upward departure from the presumptive guidelines sentences of 158 months for count one and 161 months for count two. The district court based the upward departure on its findings that appellant was a “career offender” pursuant to Minn. Stat. § 609.1095, subd. 4, a “dangerous offender” pursuant to Minn. Stat. § 609.1095, subd. 2(1), and “that children were affected.”
sentencing, appellant filed a notice of appeal and, on May 25, 2004, this court
affirmed the convictions but reversed the sentence for count one and remanded
both sentences to the district court for resentencing. State v.
Luckhardt, No. C3-02-2026, 2004 WL 1153024, at *10 (
On June 24, 2004, appellant filed a petition for review to the Minnesota Supreme Court, the same day that the United States Supreme Court’s Blakely decision was filed. The petition for review was denied on August 25, 2004 and a final judgment was entered on Sept. 8, 2004. On January 5, 2005, appellant moved the district court for resentencing on count two, arguing that the upward departure for “presence of children” violated the rule articulated in Blakely. The district court ordered the presumptive sentence of 158 months for count one and 220 months for count two based on its finding that the presence of children was an aggravating factor. This appeal followed.
D E C I S I O N
On appeal, we review a
postconviction resentencing court’s decision to grant or deny relief under an
abuse-of-discretion standard. Hale v. State, 566 N.W.2d 923, 926 (
Appellant contends that the imposition of an enhanced sentence of 220 months for count two violated his constitutional rights under Blakely because the upward durational departure was based on judicial findings that children were present during commission of the crime. Appellant argues that an upward durational departure must be supported either by the defendant’s admissions or jury findings, and cannot be based on judicial findings.
In Apprendi v. New Jersey, the United States Supreme Court held that
any fact, other than the fact of a prior conviction, that increases the penalty
for an offense beyond the statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt. 530
Here, appellant’s upward departure was based on judicial findings that children were present during the commission of the crime. This fact was not reflected in the jury’s verdicts finding appellant guilty of two first-degree controlled substance crimes nor was it admitted by appellant. The district court explicitly stated at the sentencing hearing that it based the departure on its own findings regarding the evidence presented at trial:
I’m satisfied children were affected. Children were living in this house, and my recollection is that there was actually evidence at trial which showed definitely that children were affected. That evidence was the videotape that was played, videotape when the search warrant was executed. Officer went in with a video camera and as he was panning all the rooms where different things were found, one thing that stuck out in my mind probably more than anything else in this trial is the picture of two young, very small children cowering at the end of a couch, their mother reading a story to them while huge policeman were involved. So, those kids were absolutely involved. Those kids will carry with them the rest of their lives some of the things that you have subjected them to.
This use of judicial fact-finding to enhance a
presumptive sentence clearly violates the rule enunciated in Blakely.
Appellant argues that he is
entitled to benefit from the rule announced in Blakely. A defendant is entitled to benefit from a
new rule of federal constitutional criminal procedure if his case is pending on
direct review when the new rule is announced. O’Meara,
679 N.W.2d at 339. “[A] case is pending
until such time as the availability of direct appeal has been exhausted, the
time for a petition for certiorari has elapsed or a petition for certiorari
with the United States Supreme Court has been filed and finally denied.”
The issue of the retroactive
effect of Blakely has been the
subject of recent decisions of this court and the Minnesota Supreme Court. The Minnesota Supreme Court decided that Blakely is a new rule of constitutional
criminal procedure and therefore affirmed this court’s decision that Blakely is not retroactive past its
effective date of June 24, 2004.
Reversed and remanded.