This opinion will be unpublished and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
William Larry Armstrong,
Filed January 17, 2006
Reversed and remanded
Hennepin County District Court
File No. 04001405
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lydia Lillalva Lijó,
Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
On appeal from a conviction of second-degree unintentional felony murder and a 400-month prison sentence, appellant argues that his waiver of his Sixth Amendment right to a jury trial on facts authorizing an increased sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and its Minnesota progeny because appellant did not personally and explicitly waive his rights under Minn. R. Crim. P. 26.01, subd. 3. Because we conclude that appellant’s waiver was invalid, we reverse and remand for resentencing.
2003, appellant William Larry Armstrong had a relationship and lived with Amy
Lawver, mother of three-year-old K.L. On
November 1 of that year, Lawver left K.L. in appellant’s care while she ran an
errand; K.L. was injured when she returned.
Appellant claimed that K.L. had fallen from a rock retaining wall. Lawver bathed K.L., who stiffened and
suffered a seizure. Appellant and Lawver
then drove K.L. to
On January 8, 2004, a grand jury indicted appellant on Count I, first-degree murder in violation of Minn. Stat. § 609.185(a)(6) (2004), and Count II, second-degree (unintentional) felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2004). The state offered to dismiss Count I if appellant pleaded guilty to Count II and also offered a choice between two sentencing options: (1) a range between 360 and 450 months, with the exact sentence to be decided by the judge, or (2) a 400-month sentence.
Appellant agreed to a stipulated-facts trial on Count II and waived his right to a jury trial on guilt and on aggravating factors authorizing an upward departure in his sentence. Appellant stipulated to the aggravating factors authorizing the increased sentence and agreed to a 400-month sentence. Appellant did not waive his rights to testify, to have witnesses testify for the defense, or to call and question prosecution witnesses in his waiver of a jury trial for the aggravating sentencing factors.
The district court convicted appellant of second-degree unintentional felony murder and sentenced him to 400 months in prison. The sentence represents an upward durational departure of 250 months, as appellant’s presumptive sentence for second-degree unintentional felony murder was 150 months, based upon his criminal-history score of zero and the offense severity level of ten. This appeal follows.
Appellant argues that his waiver of his Sixth Amendment right to a jury trial on facts authorizing an increased sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and its Minnesota progeny because appellant did not personally and explicitly waive his rights under Minn. R. Crim. P. 26.01, subd. 3, including “the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.”
appeal of appellant’s sentence under the Minnesota Sentencing Guidelines
presents a constitutional issue, which this court reviews de novo. State
v. Robinson, 699 N.W.2d 790, 800 (
state argues that appellant waived his Blakely
challenge to the durational departure by failing to object to it at
sentencing. See State v. Leja, 684 N.W.2d 442, 447-48 n.2 (
applies to all cases pending on direct review at the time Blakely was released and to subsequent direct appeals. See State
v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (
Blakely, the Supreme Court held that
the greatest sentence that a judge may impose is “the maximum sentence [that
may be imposed] solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.” Blakely,
court has noted that an admission of an aggravating factor amounts to a waiver
of a constitutional right to a jury trial on the sentencing issue and that “the
waiver of a constitutional right must be knowing, voluntary, and
intelligent.” State v.
appellant urgesthis court to reverse
his sentence under Thompson, respondent contends that Thompson was wrongly decided and questions
Thompson’s precedential valuein light of the Minnesota Supreme
Court’s decision to grant review. But because
there is no present indication that Thompson is not good law, we follow
the logic of Thompson. See generally State v. Barker, 705
N.W.2d 768, 773 (
We conclude that appellant’s waiver of his right to a jury trial on aggravating sentencing factors is invalid because it did not explicitly acknowledge and waive his rights to testify, to call certain witnesses, and to question those witnesses as set forth in Minn. R. Crim. P. 26.01, subd. 3. Because we reverse appellant’s sentence on these grounds, we do not reach appellant’s argument concerning the district court’s failure to make written findings.
Appellant contends that he is entitled to the presumptive sentence on remand, arguing that the court lacks authority to impose an upward durational departure because there was no established procedure for a sentencing jury. The appropriate remedy on remand is currently an unsettled area of the law. The supreme court recently stated that
[t]he 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 those cases.
v. Shattuck, 704 N.W.2d 131, 148 (
Reversed and remanded.