This opinion will be unpublished and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
Filed February 7, 2006
Lyon County District Court
File No. K6-03-681
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.
United States Supreme Court has held that “‘any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a
jury’” and that the statutory maximum is the sentence that can be imposed
without making additional findings. Blakely v. Washington, 542
district court here based the departure on three factors: (1) appellant had prior convictions; (2) appellant
qualified as a patterned sex offender under Minn. Stat. § 609.108, subd. 1
(2002); and (3) appellant qualified as a dangerous offender under Minn. Stat. §
609.1095, subd. 2 (2002) (dangerous offender statute). Appellant’s prior convictions are one element
of the presumptive sentence, which is based on the severity of the offense and
appellant’s criminal history score, including prior convictions. See
Stat. § 609.108, subd. 1(a)(2), requires the district court, before imposing an
enhanced sentence, to determine that the defendant “is a danger to public
safety.” “Danger to public safety” is
defined as an aggravating factor that would permit a durational departure under
the sentencing guidelines.
Likewise, an enhanced sentence imposed under Minn. Stat. § 609.1095, subd. 2(2) (i-ii), requires a finding that the offender is a danger to public safety, based on a “high-frequency rate of criminal activity . . . or long involvement in criminal activity” or “an aggravating factor that would justify a durational departure under the sentencing guidelines.” Again, this involves a determination of facts beyond the elements of the offense and those necessary for a guilty verdict or plea. See State v. Henderson, 706 NW.2d 758, 762 (Minn. 2005) (stating that departure under Minn. Stat. § 609.1095, subd. 4 (2004), requiring pattern of criminal conduct, goes beyond mere fact of prior conviction and concluding that defendant had Sixth Amendment right to jury determination of facts to support departure). As such, appellant has a Sixth Amendment right to have a jury decide those facts beyond a reasonable doubt.
Because the supreme court in Shattuck made clear that an upward departure may not be based on judicially found facts, and severed and declared unconstitutional that part of the sentencing guidelines that permitted such a departure, we conclude that the postconviction court erred by denying appellant’s petition for postconviction relief. We therefore reverse the postconviction decision and remand for resentencing in accordance with Shattuck.
Reversed and remanded.
Appellant was sentenced on April 15, 2004.
Because his conviction had not yet become final before Blakely was released on June 24, 2004, Blakely applies to the sentence.