This opinion will be unpublished and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
State of Minnesota,
Henry Moore, Jr.,
Filed August 8, 2006
Reversed and remanded
Concurring in part, dissenting in part, Ross, Judge
File No. K2-04-2731
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman,
Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN
55102-1657 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn,
Assistant Public Defender, 2221
University Avenue S.E., Suite 425, Minneapolis,
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
Henry Moore, Jr. challenges the district court’s imposition of an enhanced
360-month sentence for criminal sexual conduct in the first degree on the
ground that the sentence was imposed under a statute that has been declared
unconstitutional by the Minnesota Supreme Court. Because the sentence was imposed under a
statute declared unconstitutional, we reverse and remand to the district court
complaint filed on November 23, 2004, the state charged appellant Henry Moore,
Jr. with kidnapping, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2)
(2004), and first-degree criminal sexual conduct, in violation of Minn. Stat. §
609.342, subds. 1(e)(i), 2(a) (2004).
The complaint alleged that at approximately 12:30 on the morning of July
18, 2004, Moore abducted L.J.R., an adult woman,
in front of a bar in St. Paul,
forced her into his car, drove to a park, and raped her. Moore
pleaded not guilty.
jury found Moore
guilty as charged. Immediately after the
jury returned its verdicts, the district court asked it to determine whether
the state had proved beyond a reasonable doubt that Moore, among other things,
had “committ[ed] multiple penetrations of [L.J.R.].” The jury answered in the affirmative.
sentencing, the state brought a motion pursuant to Minn. Stat. § 609.109, subd.
4 (2004), which requires that the district court impose a 30-year minimum
sentence for certain repeat sex offenders if it finds, at the time of
sentencing, that an aggravating factor exists that provides grounds for an
upward departure under the Minnesota Sentencing Guidelines.
guidelines sentence for the kidnapping conviction was 68 months; the
presumptive sentence for the criminal-sexual-conduct conviction was 146
months. Under Minn. Stat. § 609.035,
subd. 6 (2004), consecutive sentences imposed for a violation of section
609.342 and another crime committed as part of the same conduct are not a
departure from the sentencing guidelines.
The district court
to the presumptive 68-month prison term for kidnapping and to an enhanced
360-month (30-year) term for first-degree criminal sexual conduct pursuant to
section 609.109, subdivision 4, and ordered the sentences to be served
concurrently. The court justified the
enhanced sentence by reference to the uncontested fact of a previous
sex-offense conviction and to the jury’s finding that Moore’s crime involved multiple penetrations,
an aggravating sentencing factor under section 609.109, subd. 4(i). This appeal follows.
D E C I S I O N
Moore argues that the enhanced sentence
imposed pursuant to Minn. Stat. § 609.109, subd. 4 (2004), must be
reversed because the Minnesota Supreme Court has held that statute to be
facially unconstitutional. We agree.
Supreme Court struck down this statute in State
v. Shattuck, holding that
[b]ecause section 609.109, subdivision 4, and Minn. Sent. Guidelines II.D
authorize the district court to make such an unconstitutional upward durational
departure upon finding an aggravating factor without the aid of a jury, we hold
that the statute is facially unconstitutional and section II.D of the
guidelines is unconstitutional as applied.
704 N.W.2d 131, 142 (Minn. 2005).
Following Shattuck, we reverse Moore’s sentence and remand to the district
court for resentencing. Id.
148 (reversing a sentence imposed under 609.109, subdivision 4, and
remanding for resentencing). As
to our instruction to the district court on remand, we observe that in Shattuck, the court concluded that
although it “has the inherent authority to authorize the use of sentencing
juries and a bifurcated trial process” to remedy Blakely violations, it would nonetheless “proceed cautiously in
exercising that authority in order to respect the equally unique authority of
the executive and legislative branches of government over their
constitutionally authorized functions.” Id.
at 147-48. The court then “remand[ed] [the]
case to the district court for resentencing consistent with this opinion”
without specifying whether this instruction required the district court to
impose the presumptive guidelines sentence or left it free to consider other
sentencing dispositions. Id.
at 148. We recognize that this court has
recently held, in light of State v.
Barker, 705 N.W.2d 768, 768 (Minn.
2005), that Shattuck should be read
as limiting the remedy in this situation to the imposition of the presumptive
sentence. See State v. Hobbs, 713 N.W.2d 884, 890(Minn. App. 2006) (directing the district court to correct a
sentence imposed in violation of Blakely
by imposing the presumptive sentence under the Minnesota Sentencing
Guidelines). We respectfully believe
that directive to misconstrue the constraint established in Blakely, as interpreted by Shattuck.
When the supreme
court stated in Shattuck that it did
not have the authority to “engraft sentencing-jury or bifurcated-trial
requirements onto the Sentencing Guidelines,” it was recognizing that the
Minnesota Sentencing Guidelines are a legislative creation and that the
judiciary has no authority to alter legislation. Shattuck,
704 N.W.2d at 148. But while the
sentencing guidelines may be a
legislative creation, sentencing departures
have historically been within the inherent powers of the judiciary and were,
prior to the 2005 sentencing legislation (Minn. Stat. § 244.10, subd. 5
(Supp. 2005)), expressly outside the domain of the legislatively created Minnesota
Sentencing Guidelines. Therefore, on
remand, the district court here should have the opportunity, consistent with
its judicial authority as constrained by Blakely
and articulated in Shattuck, to
determine whether Moore
is entitled to the presumptive sentence or whether another sentencing
disposition is available. See State v. Henderson, 706 N.W.2d 758,
2005) (after Barker, applying Blakely to the career-offender statute
and reversing and remanding with instructions to the district court to proceed
with “resentencing consistent with Shattuck”).
Reversed and remanded.
ROSS, Judge (concurring in part, dissenting in part)
I agree that Moore’s sentence must be
reversed and remanded, but I write separately to note that I believe that Blakely and Apprendi, as interpreted by Shattuck
and Barker, limit the remedy on
remand to the imposition of the presumptive sentence. To the extent the majority invites the
district court to impanel a sentencing jury to consider a sentence enhancement,
I respectfully dissent. The majority
extends the invitation relying entirely on Shattuck. Although Shattuck
might arguably have left open the question of whether resentencing “consistent
with” that opinion could include remedies other than the imposition of the
presumptive guidelines sentence, I believe that Barker subsequently determined that it could not. 705 N.W.2d 768, 773 n.1, 775-76 (Minn. 2005).
In Barker, the supreme court reversed a
sentence imposed under a statute rendered unconstitutional by Blakely, just as we do today. But with respect to the appropriate remedy,
the Barker court rejected the state’s
suggestion to “remand to the district court for resentencing, with directions
that the district court impanel a jury to determine the [statutory
enhanced-]sentencing factors.” Id.
at 775. Instead, the supreme court
remanded with specific, restrictive direction: “for imposition of a sentence
within the presumptive range.” Id.
at 776. The reason for this resentencing
restriction could not be more clear. The
Barker court explained, “In Shattuck, we rejected the suggestion
that the district court should use its inherent power to impanel a resentencing
at 775. The court determined that there
was no legislative authorization for a district court to impanel a resentencing
jury for the purpose of imposing an upward departure from the presumptive
sentence under section 609.11, and, therefore, on remand the district court
could not impanel a separate sentencing jury.
Id. at 776; see also Henderson, 706 N.W.2d at 763
(declining to “engraft onto the sentencing guidelines and sentencing statutes a
requirement for sentencing juries or bifurcated trials, for to do so would
require us to rewrite those guidelines and statutes”). Quite plainly, the majority today reads Shattuck to confer on the district court
the very resentencing authority that the supreme court in Barker read Shattuck to
prohibit. As much as it may seem that
the district court ought to be free to exercise the inherent authority to
engage juries for sentencing when procedurally necessary to remedy either a
constitutional or statutory gap, for the reasons I expressed in State v. Greer, No. A05-552, 2006 WL
1704059, *7-*10 (Minn. App. June 20, 2006), I believe the supreme court has
determined the question otherwise.
case, the presumptive guidelines sentence for the kidnapping conviction was 68
months; the presumptive sentence for the criminal-sexual-conduct conviction was
144 months. Under Minn. Stat. § 609.035,
subd. 6 (2004), consecutive sentences imposed for first-degree criminal-sexual
conduct and for another crime committed as part of the same conduct do not
constitute a departure from the sentencing guidelines. It would therefore appear that Moore’s presumptive
sentence is 212 months, which, it seems to me, is the only sentence that Shattuck, as applied and explained in Barker, would allow.