This opinion will be unpublished and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
Michael Walton Hinton, petitioner,
Filed July 25, 2006
Faribault County District Court
File No. K8-01-239
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian D. Roverud, Faribault County Attorney, 412 North Main, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends that the district court’s upward durational departure from the presumptive sentence for second-degree assault violated the plea agreement, was without a proper basis, and violated the Apprendi rule. Because the court did not err in sentencing appellant, we affirm.
Appellant Michael Walton Hinton was charged with three counts of first-degree criminal sexual conduct, one count of second-degree assault with a dangerous weapon, and one count of felony domestic assault. He pleaded not guilty and demanded a jury trial on all charges.
On the second day of the trial, Hinton agreed to plead guilty to second-degree assault under Minn. Stat. § 609.222, subd. 1 (2000), which provides a maximum sentence of seven years, in return for the dismissal of all other charges. He also agreed that the court could impose the maximum sentence under the assault statute, and he acknowledged that such a sentence would be an upward durational departure from the presumptive sentence of 39 months. The bases for the departure were that Hinton committed the assault by threatening his wife with a knife in her home and in full view of the parties’ children, and that he showed no remorse for his crime.
On September 24, 2001, the district court sentenced Hinton in accordance with the plea agreement.
petitioned for postconviction relief four times, alleging that a requirement
that he must register as a sex offender violated the plea agreement, that there
were no grounds for the upward sentencing departure, and that the departure
violated his right to a jury trial under Apprendi
D E C I S I O N
This court reviews a postconviction
order to determine whether there is sufficient evidence to sustain the
postconviction court’s findings. Dukes v. State, 621 N.W.2d 246, 251 (
Hinton was charged with first-degree criminal sexual conduct in violation of various subdivisions of Minn. Stat. § 609.342 (2000). Although those charges were dismissed under the plea agreement, Minn. Stat. § 243.166, subd. 1 (2000), requires that a person who is charged with the sex offenses of which Hinton was accused must register as a predatory sex offender. The dismissal of the charges does not negate the registration requirement.
It appears from the record that Hinton was not told of the registration requirement at either the time of the plea agreement or at the sentencing. The record is silent on that issue.
registration is a collateral, rather than a direct, consequence of a plea of
guilty. Kaiser v. State, 641 N.W.2d 900, 903 (2002). A plea of guilty may be accurately, intelligently,
and voluntarily entered despite the lack of notice of a collateral
Hinton also contends that he is required to participate in sex-offender treatment. The district court never ordered sex-offender treatment, and we are aware of no such requirement that would apply to Hinton given the facts and disposition of this case.
Hinton disputes the propriety of basing a departure on
the accused’s lack of remorse for the offense to which he pleaded guilty,
contending that to do so requires a reading of the accused’s mind. The record reveals that, although lack of
remorse was offered by the prosecutor, and apparently adopted by the court, as
one of the departure bases, the court also found that Hinton violated the
victim’s zone of privacy when he committed the assault and that he committed
the crime in the presence of children.
Facts supporting these findings are undisputed. Multiple bases for a sentencing departure are
not required but rather, under these undisputed facts, invasion of the victim’s
zone of privacy alone is sufficient support for the durational departure.
In Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2363 (2000), the Supreme Court held that a
court cannot properly impose a sentence that exceeds the maximum term provided
by statute unless the accused is afforded the right to have a jury determine
the factors on which the extra term is based.
Until the Supreme Court’s decision in Blakely v. Washington, 542
Hinton’s sentence did not exceed the maximum penalty in the second-degree assault statute but it did exceed the presumptive guidelines sentence of 39 months. The question then is whether Blakely, decided three years after Hinton’s sentence, is to be applied retroactively so as to give Hinton the opportunity for a jury trial on the departure factors.
The Minnesota Supreme Court has held
that Blakely does not apply
retroactively on collateral review to convictions that were final as of June
24, 2004, the date of the Blakely decision. State
Supreme Court has been filed and finally denied.” O’Meara v. State, 679 N.W.2d 334, 336 (