This opinion will be unpublished and

may not be cited except as provided by

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







Joseph William Schulz,






State of Minnesota,




Filed February 7, 2006

Reversed and remanded
Klaphake, Judge


Lyon County District Court

File No. K6-03-681


John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Richard R. Maes, Lyon County Attorney, Lyon County Government Center, 607 West Main Street, Marshall, MN  56258 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Joseph William Schulz challenges the district court’s denial of his petition for postconviction relief from his sentence for second-degree criminal sexual conduct under Minn. Stat. § 609.343 (2002).  The district court imposed a 102-month sentence, a double durational departure from the presumptive 51-month sentence.  Because the district court violated appellant’s Sixth Amendment rights by imposing an upward durational departure based on judicially found facts, the postconviction court erred by denying appellant’s petition.  We therefore reverse and remand to the district court for sentencing consistent with this opinion.


            The 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 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)).  Applying Blakely,the Minnesota Supreme Court has concluded that an upward durational departure from the presumptive sentence under the sentencing guidelines based on factors not decided by a jury violates a defendant’s Sixth Amendment rights.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  Specifically, a departure from the presumptive sentence may not be imposed when “the court finds facts beyond the elements of the offense and [when] the verdict or guilty plea alone does not authorize the enhanced sentence.”  Id. at 141-42 (citation omitted).

            The 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).[1]  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 Minn. Sent. Guidelines II.A.; II.B.; Shattuck, 704 N.W.2d at 139.  Because the guidelines already incorporate appellant’s prior convictions, they may not be used as the sole reason to depart.  See Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003) (stating that departures must be based on “substantial and compelling” circumstances that make facts of particular case different from typical case).

            Minn. 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.  Id. at subd. 1(a)(1).  Although Shattuck involved interpretation of Minn. Stat. § 609.109, subd. 4(a) (2002), the standard is the same:  “[T]he crime [must] involve[] an aggravating factor that would provide grounds of an upward departure.”  Id.  The supreme court concluded that deciding whether an aggravating factor exists for purposes of an upward departure under the guidelines violates a defendant’s right to have a jury make that determination beyond a reasonable doubt.  Shattuck, 704 N.W.2d at 142.

            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.

[1] 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.  See State v. Houston, 702 N.W.2d 268 (Minn. 2005); O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).