This opinion will be unpublished and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
Alan T. Enger,
Reversed and Remanded
Concurring in part, dissenting in part, Shumaker, Judge
Hennepin County District Court
File No. 04080840
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County
Attorney, Michael Richardson, Assistant Hennepin County Attorney, C-2000
John M. Stuart, State Public
Defender, G. Tony Atwal, Assistant State Public Defender,
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Alan Theodore Enger challenges his enhanced sentence imposed under Minnesota Statutes § 609.1095, subdivision 2 (2004) (the dangerous-offender statute), arguing that because the statute is facially unconstitutional, his sentence must be reversed and the matter must be remanded to the district court for resentencing. Because section 609.1095, subdivision 2, is unconstitutional, we reverse and remand for resentencing.
The state charged Enger with felony second-degree arson in violation of Minnesota Statutes § 609.562 (2004). The complaint alleged that he intentionally set fire to a residence, causing over $100,000 in damage.
Enger pleaded guilty to this offense based on an agreement in which, in the words of his counsel, Enger would “waive any rights under the Blakely decision, and at the time of sentencing, or before sentencing, perhaps, the prosecutor could argue for an upward departure and we could argue that there should be no departure.” The prosecutor explained that under the agreement, the state would seek an upward departure based on Minnesota Statutes § 609.1095, subdivision 2, which allows the court to “impose an aggravated durational departure from the presumptive imprisonment sentence” based on a judicial finding that a convicted criminal is a “danger to public safety.”
The district court sentenced Enger to 120 months in prison—the statutory maximum—after finding on the record and beyond a reasonable doubt the criteria set forth in section 609.1095, subdivision 2, that Enger was over 18, that he was guilty of the charged offense, that he had two or more prior convictions for violent crimes, and that he is a danger to public safety based on his past criminal behavior. The court also determined that Enger was ineligible for supervised release. This appeal follows.
Enger argues that this court must reverse his sentence as unauthorized by law because section 609.1095, subdivision 2, under which his sentence was enhanced, is facially unconstitutional. We agree.
Recent constitutional interpretation imposes new limits
on the role of a district court judge in making sentencing decisions. In Blakely
v. Washington, the United States Supreme Court held that, under the Sixth
Amendment, a district court can issue only the maximum sentence warranted by
facts as determined by a jury or admitted by the defendant. 542
This constitutional development may also result in
invalidating sentencing statutes. This
court recently relied on Blakely
and Shattuck to hold that section 609.1095, subdivision 2,
is unconstitutional because it specifically authorizes an enhanced sentence
based on a judicial finding that the offender is a “danger to public
safety.” State v.
In reversing Enger’s sentence,
we also specify our instruction to the district court on remand. The Shattuck
court, in considering its remand instruction, 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 not act on that authority.
While Shattuck did not decide whether resentencing “consistent with” that
opinion could include a remedy other than imposition of the presumptive
guidelines sentence, State v. Barker later
held that it could not. 705 N.W.2d 768, 773,
775-76 & n.1 (
The unconstitutionality of section 609.1095, subdivision 2, resolves this appeal. We therefore do not address Enger’s challenge to his waiver of a jury determination of the sentence-enhancing findings.
Reversed and remanded.
SHUMAKER, Judge (concurring in part, dissenting in part)
I agree that Enger’s sentence must
be reversed and remanded, and I concur with the majority in that respect. But I dissent from the majority’s
determination that the district court must impose the presumptive sentence on
remand. I do not believe that Blakely and Apprendi, as interpreted by Shattuck,
strictly limit the dispositions available to the district court on remand to
imposition of the presumptive guidelines sentence. As I explained in State v. Lushenko, 714 N.W.2d 729, 737 (Minn. App. 2006) (Shumaker,
J., concurring specially), I believe that 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 simply recognizing that the Minnesota Sentencing
Guidelines are a legislative creation and that the judiciary has no authority
to alter legislation. State v. Shattuck, 704 N.W.2d 131, 148 (