This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
William Larry Armstrong,
Filed February 27, 2007
Hennepin County District Court
File No. 04001405
Lori Swanson, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent);
John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
This appeal from a conviction and sentence for second-degree felony murder has been remanded by the supreme court for reconsideration of the adequacy of appellant’s waiver of his right to a jury determination of sentencing issues. Appellant argues that the waiver of his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was inadequate. Based on the supreme court’s decision in State v. Thompson, 720 N.W.2d 820 (Minn. 2006), we conclude the waiver was adequate, and, therefore, we affirm.
Appellant William Larry Armstrong was indicted for first-degree murder in the death of three-year-old K.L., the son of Armstrong’s girlfriend. Armstrong was convicted of second-degree felony murder after he waived his right to a jury trial and agreed to submit the matter to the court based on stipulated facts.
The agreement to submit the lesser charge of second-degree felony murder came two months before the scheduled trial date. The parties also agreed “that there are departure grounds in the stipulation that would support the 400-month sentence.”
Armstrong completed a rule 15 petition to plead guilty, and, two days later, an agreement to a stipulated-facts trial. Armstrong’s attorney questioned him, at first using the terminology of a guilty plea, about his understanding of the jury-trial rights he would be waiving. The prosecutor then corrected defense counsel, explaining to Armstrong that “you’re not pleading guilty but rather doing a trial by stipulated facts.” The district court then went through the individual trial rights with Armstrong, obtaining a statement of his understanding of those rights.
Finally, defense counsel explained to Armstrong his right “to a jury as it relates to any kind of a sentence.” Counsel explained that he had a right to have a jury determine whether there was a basis for a sentencing departure. Counsel explained that if the court found him guilty, “you would be looking at a sentence of 400 months,” which was an upward departure. He then elicited from Armstrong his agreement to waive his right to a jury determination “whether or not there are grounds to justify that departure.” The court asked Armstrong if he understood that the facts he stipulated to “would have been submitted to a jury for purposes of sentencing if you went to trial[,]” and Armstrong responded that he did.
On the same day, Armstrong signed an agreement to a stipulated-facts trial. The stipulation states that Armstrong “has acknowledged and waived his right to testify at trial, to have the prosecution witnesses testify in open court in [his] presence, to cross-examine the prosecution witnesses, and to require any favorable witnesses to testify for the defense in open court.” The agreement set forth the parties’ agreement “that if the defendant is found guilty by the Court, he shall receive an executed sentence of 400 months.” The parties agreed that the 400-month sentence, an upward departure, was supported by the particular vulnerability of the victim, the particular cruelty of the assault, Armstrong’s position of trust and authority, and Armstrong’s history of “at least two prior incidents of domestic assault.” Finally, the agreement stated that Armstrong “has agreed to waive a jury pursuant to [Blakely].”
The district court found Armstrong guilty of second-degree felony murder based on the stipulated facts, after making the factual findings required by Minn. R. Crim. P. 26.01, subd. 2, orally on the record. The district court sentenced Armstrong to the anticipated 400-month sentence, after hearing victim-impact statements from relatives of the three-year-old victim and after affording Armstrong a chance to speak on his own behalf. The court made findings orally on the record concerning the aggravating factors that supported the upward departure.
Armstrong appealed, arguing that the waiver of his Blakely right to a jury determination of facts supporting the upward departure was inadequate. This court agreed with that argument, holding that Armstrong’s waiver was inadequate because it did not include the specific waivers of individual trial rights required by Minn. R. Crim. P. 26.01, subd. 3, when a defendant submits to a trial on stipulated facts. State v. Armstrong, No. A04-2142, 2006 WL 91336 (Minn. App. Jan. 17, 2006). The supreme court granted review and has now vacated this court’s earlier opinion and remanded for reconsideration in light of State v. Thompson, 720 N.W.2d 820, 827 (Minn. 2006).
The Blakely waiver issue presents a legal issue, which this court reviews de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). Moreover, on remand the supreme court has presented a question, involving the application of State v. Thompson, 720 N.W.2d 820, 827 (Minn. 2006), to this case, that was not before the district court.
In Blakely, the Supreme Court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004) (emphasis omitted). The defendant, it held, has a Sixth Amendment right to a jury determination of any fact (other than the fact of a prior conviction) that increases the sentence above this maximum. Id. But the court may also impose a greater sentence based on an admission by the defendant. Id. A defendant’s admission, however, must be accompanied by a valid waiver of the right to a jury trial on the particular factor(s) that support a greater sentence. State v. Dettman, 719 N.W.2d 644, 651 (Minn. 2006); State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005).
The supreme court in Thompson held that a Blakely waiver that followed a plea of guilty did not have to include a waiver of the individual trial rights being forfeited by the defendant in agreeing to a bench trial of the sentencing issue. Thompson, 720 N.W.2d at 827. The court distinguished between a general waiver of the right to a jury trial under Minn. R. Crim. P. 26.01, subd. 1(2)(a)—the waiver required before any bench trial—and the more detailed waiver of individual trial rights under rule 26.01, subd. 3, which is used for a stipulated-facts trial. Id. at 826-27.
Armstrong, unlike the defendant in Thompson who pleaded guilty and then agreed to a bench trial on the sentencing issue, 720 N.W.2d at 824, agreed to a stipulated-facts trial as to both the issue of guilt or innocence and the sentencing issue. Armstrong argues that, therefore, the more detailed waiver of individual trial rights under rule 26.01, subd. 3, required for a stipulated-facts trial, should have been obtained for the Blakely sentencing issue.
This argument has some appeal but ignores the fact that in this case, unlike in Thompson, there was a single waiver procedure. And, as the state points out, as part of that waiver procedure, Armstrong did waive his individual trial rights, as required by rule 26.01, subd. 3. The only issue before us, therefore, is whether that full waiver, despite the unitary nature of the waiver procedure, should be held not to have applied to the Blakely portion of the agreement to a stipulated-facts trial. Or, to put it another way, the issue is whether a separate, self-sufficient Blakely waiver complying with rule 26.01, subd. 3, should have been obtained.
Thompson could have held that a separate, self-sufficient Blakely waiver is required apart from whatever waiver is elicited concerning the determination of guilt or innocence. But it did not do so. Thompson did not have to reach the issue because the timing of the Blakely decision necessitated a separate Blakely waiver. 720 N.W.2d at 824-25. In Thompson, the waiver of individual trial rights as to the determination of guilt or innocence occurred at the guilty-plea hearing, which was nearly three months before the Blakely waiver. Id.
Armstrong does not present any persuasive argument for requiring a separate, self-sufficient Blakely waiver of individual trial rights in addition to the waiver of those rights in the trial of guilt or innocence. In both the written stipulation and the oral record, the Blakely waiver accompanied the full waiver of a jury trial, detailing the jury-trial rights, on guilt or innocence. Armstrong was fully informed that he was waiving his right to a jury trial on sentencing issues. There were statements made, both orally and in the written agreement, that if Armstrong were found guilty in the stipulated-facts trial he would be sentenced to 400 months. But these statements did not imply that, absent the agreement, Armstrong would have been automatically sentenced to 400 months. To the contrary, the district court informed Armstrong that the facts would have been submitted to a jury for the purpose of determining the sentence.
Thus, we conclude that there was nothing in the stipulated-facts agreement, or the inquiry accompanying it, that would lead Armstrong to believe that he had a right to testify at trial, question prosecution witnesses, call favorable witnesses, etc., in trying the issue of guilt or innocence but not the sentencing issue. Armstrong provides no good argument for requiring a repetition of the full waiver of individual trial rights when it came to the Blakely waiver. Therefore, we conclude that the Blakely waiver was adequate and that the sentencing departure must be affirmed.
 The facts of the offense are briefly summarized in this court’s earlier opinion. State v. Armstrong, No. A04-2142, 2006 WL 91336 (Minn. App. Jan. 17, 2006).