This opinion will be unpublished and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,
Filed November 7, 2006
Hennepin County District Court
File No. 00087369
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the sentence imposed for a second-degree criminal-sexual-conduct conviction, appellant David Hearn argues that the upward departure from the presumptive sentence violates the Sixth Amendment and unreasonably exaggerates the severity of the offense. We affirm.
D E C I S I O N
was convicted in 2000 of attempted criminal sexual conduct in the first degree (Count
1), criminal sexual conduct in the second degree (Count 2), and kidnapping
(Count 3). On appeal, this court reversed a life sentence
stemming from Count 1; held that appellant could not be sentenced on both Count
1 and Count 2; and upheld the duration of the sentence on Count 3, but determined
that it was to be served concurrently with the Count 1 or Count 2 sentence
rather than consecutively. State v. Hearn, 647 N.W.2d 27, 32-34 (
Hearn II, 2004 WL 2283583, at *1.
On remand, the district court resentenced appellant to the statutory maximum of 300 months on Count 2, a fivefold upward departure from the presumptive 58-month sentence. The court relied on its 2001 judicial determination that appellant was a patterned sex offender, as defined in Minn. Stat. § 609.108 (1998), to justify the upward departure. The district court also provided, as an alternative basis for appellant’s sentence, that he met the definition of a repeat sex offender under Minn. Stat. § 609.109 (1998).
In this appeal, appellant argues that the district court’s resentencing on Count 2 violates his right to a jury trial under Blakely and, that even if the sentence does not violate Blakely, it unreasonably exaggerates the severity of his offense.
argues that the district court violated his right to a jury trial under Blakely by judicially determining that
he is a patterned sex offender and by relying on this determination to enhance
his sentence. In Blakely, the Supreme Court held that the greatest sentence a judge
can impose is one based “solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely,
Because appellant’s first appeal was pending before this court on remand from the supreme court when Blakely was handed down, appellant’s case was pending on direct review and the rule of Blakely applies. And because the upward departure was based on judicial rather than jury findings under the patterned-sex-offender statute, following Boehl we conclude that appellant’s sentence violates the Sixth Amendment.
the district court provided as an alternative ground for the sentence,
application of the repeat-sex-offender statute.
And even if the sentence based on the patterned-sex-offender statute is
unconstitutional, the sentence can be upheld if the alternative basis is
valid. Appellant challenges the
alternative basis, arguing that the district court’s use of appellant’s prior
convictions in the alternative sentence under the repeat-sex-offender statute
is unconstitutional because the prior-conviction-exception announced in Apprendi v.
Although the continuing viability of the
prior-conviction exception has been questioned, it has not been overruled. Shepard v. United
Appellant also argues that the district court erred by imposing the alternative statutory maximum sentence because the repeat-sex-offender statute requires that the aggravating factor supporting an upward departure relate to the charged offense rather than past crimes. We disagree.
Appellant’s alternative sentence was
imposed under the repeat-sex-offender statute, Minn. Stat. § 609.109, subd. 6. The statute is applicable if (1) the defendant
is convicted of a crime enumerated in the statute; and (2) “the court
determines on the record at the time of sentencing that the crime involved an
aggravating factor . . . under the Sentencing Guidelines.”
Statutory construction is a question
of law, which we review de novo. Brookfield Trade Ctr., Inc. v.
the crime involved an aggravating factor that would provide grounds for an upward departure under the sentencing guidelines other than the aggravating factor applicable to repeat criminal sexual conduct convictions.
Minn. Stat. § 609.109, subd. 4 (2)(i) (emphasis added). Because the legislature chose not to adopt such language in the repeat-sex-offender statute, the district court did not err in using appellant’s prior convictions as an aggravating factor under the repeat-sex-offender statute.
Appellant also argues that the
district court’s upward departure to the statutory maximum sentence is
unreasonable because it exaggerates the severity of his offense. “We review a
sentencing court’s departure from the sentencing guidelines for abuse of
discretion.” State v. Geller, 665 N.W.2d 514, 516 (
The repeat-sex-offender statute
requires a sentence of “at least twice the presumptive sentence recommended by
the sentencing guidelines.”
Like the dangerous-offender statute, the repeat-sex-offender statute provides for sentences up to the statutory maximum without regard to severe aggravating factors. Thus, the district court did not need to base its statutory maximum sentence on severe aggravating factors.
We recognize that sentencing-enhancement statutes do not envision the statutory maximum sentence in every case and that “courts should use caution when imposing sentences that approach or reach the statutory maximum sentence” to avoid disproportionate sentencing. Neal, 658 N.W.2d at 546. But we conclude that here, appellant’s sentence is not disproportionate.
In Hearn I, this court analyzed whether appellant’s sentence exaggerated the severity of his offense under the patterned-sex-offender statute. Hearn I, 647 N.W.2d at 32. Although we are now analyzing the sentence under the repeat-sex-offender statute, appellant’s record has not changed, and the previous analysis remains persuasive. In Hearn I we stated that:
Hearn has a 30-year history of predatory sex crimes. He has undergone sex-offender treatment twice without success. He has demonstrated a clear likelihood that he will reoffend. . . . In light of Hearn’s current conduct, his past predatory history, and caselaw approving substantial departures for similar crimes, the sentence did not exaggerate the criminality of Hearn’s offense.
Id. at 33 (citation omitted).
The legislature provided for sentences of at least twice the presumptive sentence and up to the statutory maximum for offenders with a single, prior felony-criminal-sexual-conduct conviction. Here, appellant had three prior qualifying convictions rather than the single conviction required under the statute. Based on appellant’s history and multiple prior sex-offense convictions, we conclude that the district court’s statutory maximum sentence is not an abuse of discretion and does not exaggerate the severity of appellant’s conduct.
The facts of this case are set forth in this
court’s published decision State v. Hearn,
647 N.W.2d 27 (