This opinion will be unpublished and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
Christopher Andrew Hondl, petitioner,
Filed January 9, 2007
Steele County District Court
File No. K3-02-1326
Christopher A. Hondl,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Daniel A. McIntosh, Assistant Steele County Attorney, 303
Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
In this postconviction appeal, appellant challenges the district court order, on remand from this court, which modified his sentence by concluding that he was eligible for supervised release, arguing that the original sentence imposing a double-upward departure of 60 months violated his right to a jury trial and was unconstitutional under Blakely. Because the district court properly applied the law and did not abuse its discretion, we affirm.
While incarcerated in the
In December 2002, a jury found appellant guilty of third-degree assault, and in February 2003, appellant was sentenced to serve 60 months. This sentence was a double-upward departure from the sentencing guidelines’ presumptive sentence, authorized by the dangerous and repeat offender statute, which—at the time—permitted judges to impose higher sentences for felony offenders who had been previously convicted of two or more violent offenses if the judge determined the offender to be a danger to public safety. Minn. Stat. § 609.1095, subd. 2 (2002). Under the mandatory sentencing provision of Minn. Stat. § 609.1095, subd. 3 (2002), which denies three-time violent offenders eligibility for probation, parole, discharge, or work release, the district court found that appellant was not eligible for supervised release.
appealed his conviction and sentence.
This court affirmed his conviction but remanded for resentencing,
finding that offenders sentenced to an upward departure under Minn. Stat. § 609.1095,
subd. 2, are specifically excluded from subd. 3, which permits denial of
supervised release. State v. Hondl, No. A03-492, 2004 WL 237359 at *3 (Minn. App. Feb.
10, 2004), review denied (
September 2004, the district court resentenced appellant by imposing the
earlier 60-month sentence and, as required by this court’s remand order, found
appellant eligible for supervised release. In December 2005, appellant moved for
correction of his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9,
asserting that the upward departure under
D E C I S I O N
that the district court erred in denying his rule 27.03 motion for sentence
In Blakely, the U.S. Supreme Court held
that the greatest sentence a judge can impose must be based solely on the facts
reflected in the jury verdict or admitted by the defendant.
In State v. Shattuck, the Minnesota
Supreme Court applied Blakely and
concluded that for felonies other than first-degree murder, the presumptive
sentence set forth in the sentencing guidelines is the maximum sentence a judge
may impose on the basis of facts reflected in the jury verdict or admitted by
the defendant. 704 N.W.2d 131, 141 (
Here, appellant’s conviction was final before the Supreme Court’s Blakely decision was filed. Specifically, his conviction was affirmed by this court, and his right to further challenge his conviction was exhausted before the decision in Blakely. But the district court’s order upon remand, which modified his sentence and determined that he was eligible for supervised release, occurred after the decision of Blakely.
Thus, appellant argues that the remand order of this court
directed the district court to review not only its order denying appellant’s
eligibility for supervised release, but also to review his double-upward
departure to 60 months. We
disagree. “It is well established that a
trial court may not vary the mandate of an appellate court or decide issues
beyond those remanded.” Harry N. Ray, Ltd. v. First Nat’l Bank of
Here, the scope of the remand order was limited to reviewing the denial of eligibility for supervised release. Hondl I, 2004 WL 237359 at *3. The portion of the original district court order imposing a 60-month sentence was affirmed by this court and not subject to resentencing. That portion of the decision was final and, therefore, not subject to the benefit of Blakely.
Appellant also argues
that his sentence is unconstitutional under Ring
v. Arizona. 536
considering appellant’s argument, it fails.
In Ring, the Supreme Court
applied its ruling in Apprendi v.
Here, appellant was
convicted of third-degree assault, in violation of Minn. Stat. § 609.223,
subd. 1 (2002). This statute authorizes
a maximum imprisonment of
“not more than five years.”
 This statute has been since amended to
require the factfinder to determine
whether the offender is a danger to public safety. 2005