This opinion will be unpublished and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
Juan Luis Ocampo-Perez,
Filed March 20, 2007
Scott County District Court
File No. 2004-08608
Lori Swanson, Attorney General, 1800
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a sentence imposed for aiding and abetting second-degree felony murder, appellant argues that the district court (1) abused its discretion by imposing a durational departure without stating an aggravating factor supporting the departure; (2) was required to state the aggravating factor (victim vulnerability) at the time of sentencing, and to find that the victim’s vulnerability due to intoxication was a substantial and compelling circumstance; (3) imposed an unconstitutional departure under Blakely; and (4) on remand must impose the presumptive sentence. We affirm.
D E C I S I O N
Appellant Juan Luis Ocampo-Perez argues
that the district court abused its discretion in imposing an upward departure
because it failed to state at the time of sentencing that it was departing from
the presumptive sentence and failed to make a finding that an aggravating
factor existed that supported the departure.
Departures from presumptive sentences are reviewed for abuse of
discretion, but there must be “substantial and compelling circumstances” in the
record to justify departures. Rairdon v. State, 557 N.W.2d 318, 326 (
Here, appellant pleaded guilty to aiding and abetting second-degree unintentional murder based on a plea agreement wherein appellant would serve 206 months in prison, an upward departure, waive his right to a jury trial on aggravating factors under Blakely, and stipulate to the aggravating factor that the victim was vulnerable because he was impaired at the time of the murder. Appellant acknowledged that he understood the plea agreement and was aware that he was waiving his right to a hearing on the existence of aggravating factors and agreeing that the victim’s vulnerability was an aggravating factor that supported the upward departure. Specifically, when asked by the prosecutor, “And you would agree that the fact that [the victim] was intoxicated and under the influence of drugs at the time he was killed is an aggravating factor,” appellant stated that he agreed. The district court then clarified, “So the aggravating factor, just so I’m understanding, under the sentencing guidelines would be the victim was vulnerable because of his – because of the fact he was impaired.” The court then found that there was a factual basis for appellant’s guilty plea. After appellant waived his right to a presentence-investigation report, the district court sentenced appellant, stating:
It is the sentence of the Court that you be committed to the Commissioner of Corrections for a period of 206 months, 137 and-a-third of which will be served in a correctional facility selected by the Commissioner and 68 and two-thirds months on supervised release.
argues that during the specific sentencing-pronouncement portion of the
hearing, the district court failed to state that the sentence was an upward
departure and that the district court found that an aggravating factor existed
to support the departure.
Appellant argues that the district
court erred in imposing the upward departure because it failed
to obtain a valid waiver of his right to a jury determination under Blakely v.
Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004).
The alleged Blakely error in this
case presents a constitutional question that we review de novo.
Blakely, the Supreme Court held that
a district court may not impose a sentence greater than “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, 542