This opinion will be unpublished and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,
Samuel J. Lyons,
Filed July 3, 2007
File No. K6-02-1097
Attorney General, Kimberly Parker, Assistant Attorney General, 445 Minnesota
Street, Suite 1800, St. Paul, MN 55101-2134; and
Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street
N.E., Grand Rapids, MN 55744 (for
Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425,
Considered and decided by Peterson,
Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
In September 2002, appellant
Samuel Lyons pleaded guilty to aiding and abetting first-degree assault, waiving
his right to appeal the conviction or sentence as part of the plea
agreement. His time for appeal expired
90 days after his October 28, 2002 sentencing.
After violating probation several times, his sentence was executed, and
he filed an appeal on May 19, 2005, claiming that he is entitled to relief
under Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), arguing that his case was on direct review because
he entered a plea agreement requiring him to waive his right to appeal. The appeal was stayed pending the Minnesota supreme court’s decision in State v. Losh, 721 N.W.2d 886, 886 (Minn. 2006). Because Lyons’s waiver could have been challenged, even on
direct appeal, and because we decline to extend the line of cases to which Blakely may retroactively apply beyond
the time when the right to direct review expires or is exhausted, we
the night of May 28, 2002, appellant Samuel J. Lyons and several other people
were gathered together in Ball Club drinking alcohol. At some point in the evening, two men and one
woman arrived to join Lyons’s
group. The woman indicated that M.S.,
one of the men in the group, had hit her in the face.
in the evening, Lyons and three male friends chased M.S., and two of the men
tackled him. All four men started
hitting M.S. One man picked up a
stroller and hit him twice with it. The
men stopped and started walking away, but then returned to hit and kick M.S. some
M.S. was treated at the Deer River
Hospital for severe head
trauma, and the doctors believed he would not survive the beatings. He was eventually taken to St. Mary’s hospital
in Duluth to
undergo brain surgery and was later listed in critical condition. He did survive, and Lyons was apprehended and charged with first-degree
felony assault, in violation of Minn. Stat. § 609.221, subd. 1 (2000). Witnesses told police that Lyons and two
other men chased M.S., punched him, and kicked him repeatedly while he was on
the ground. Lyons pleaded guilty to aiding and abetting first-degree
assault, and admitted to hitting M.S. once or twice when he was lying on the
ground, but stated that he was not involved when M.S. was hit with a stroller
and that he did not participate when the other men continued to beat M.S. He also claimed that he had problems remembering
the incident with any clarity because of the amount of alcohol he had consumed
throughout the evening.
pleading guilty to aiding and abetting first-degree assault, Lyons was sentenced to an upward durational
departure of 172 months, and the court stayed execution of the sentence as a
downward dispositional departure. Lyons had to waive his
right to appeal the conviction or sentence as part of the plea agreement. Soon after he was sentenced, Lyons violated his probation numerous times. After several hearings, the district court
vacated the stay and executed Lyons’s
original 172-month sentence.
D E C I S I O N
Retroactive Application of Blakely
Lyons first argues that
his case is distinguishable from State v.
Losh because he had to waive his right to an appeal as part of his plea
agreement. In Losh, the supreme court affirmed this court’s determination that a
probation-revocation appeal is not “direct review” of a sentence for purposes
of retroactivity analysis. State v. Losh, 721 N.W.2d 886, 895 (Minn. 2006). The supreme court also held that Minn. Stat.
§ 244.11, subd. 3 (2004), violates the separation-of-powers doctrine and
is therefore unconstitutional. Id. at 892.
Lyons alleges that, whereas Losh failed to perfect a
timely review, Lyons
entered into a plea agreement that impermissibly required him to waive his
right to review. He argues, therefore,
that his case was pending at the time that Blakely
was decided. The general rule is
that Blakely, as a new rule of
constitutional criminal procedure, is retroactively applicable to cases pending
on direct review at the time Blakely
was released, but not to cases then on collateral review or later challenged on
collateral review. State v. Houston, 702 N.W.2d 268, 273
2005). The supreme court in Losh held that a challenge to a sentence
that is made in a probation-revocation appeal is not “direct review” for
purposes of the retroactivity of Blakely. 721 N.W.2d at 894-95.
also note the bright-line rule set
forth by the Supreme Court in Teague v. Lane,
drawing the line for retroactivity purposes when the right to direct review
expires or is exhausted, precisely to avoid inconsistent results. See 489
U.S. 288, 302, 109 S. Ct. 1060, 1071 (1989) (noting that the previous
standard led to inconsistent results). Lyons’s appeal waiver, although
it presents a reason why he would not have challenged his sentence duration on
direct review, is not sufficient to justify deviation from the bright-line rule
for a Blakely analysis.
argues that this case is more like State
v. Beaty, 696 N.W.2d 406, 412-13 (Minn. App. 2005), in which we held that a
defendant who received a stay of imposition, and, therefore, had no sentence
duration to challenge, could raise a Blakely
claim in a probation-revocation appeal, since his first opportunity to appeal did
not occur until the stay of imposition was vacated.
Beaty, this court noted that a
defendant who receives a stay of imposition of sentence does not know what the
duration of his sentence is, or whether an upward departure will be imposed,
until his probation is revoked. Beaty,696 N.W.2d at 410-11. This
court held, therefore, that when there is a stay of imposition, “thereby
precluding a challenge to the sentence duration on direct review,” Blakely should apply retroactively to a
later probation-revocation appeal in which the sentence is challenged. Id.at 411.
The Beaty court distinguished
the situation in Losh, in which there
was a stay of execution that was later
revoked, stating that, for purposes of Blakely
retroactivity, “the difference between a stay of execution and a stay of
imposition is a marked one.” Id.
at 411 n.2. A defendant who receives a
stay of execution has received a pronounced sentence duration that he could
challenge on Blakely grounds, even
if, as recognized by the supreme court, he may have little incentive to do so
until later, when his probation is revoked.
v. Fields, 416 N.W.2d 734, 736 (Minn.
1987) (noting that defendant placed on probation may delay challenging
durational departure because he planned on succeeding on probation).
Lyons’s argument would have merit if his appeal
waiver made it impossible for him to challenge his sentence on direct
appeal. But such waivers may be
challenged, even on direct appeal. See Spann v. State, 704 N.W.2d 486, 495
(holding that defendant could not waive his right to appeal as part of a
stipulation dismissing the appeal); State
v. Newcombe, 412 N.W.2d 427, 430 (Minn.
App. 1987) (holding that defendant could challenge guilty plea on direct appeal
when grounds for the challenge were present in the record), review denied (Minn. Nov. 13, 1987). The waiver presented no such impossibility,
as did the complete lack of a sentence duration in Beaty. Lyons cites no authority that his plea
agreement is impermissible, and if it were, he was free to file an appeal or a
postconviction petition challenging the agreement. We also note that Lyons’s
appeal waiver constituted only a reason not to challenge the sentence duration
on direct review and that Lyons
agreed to waive an appeal in order to receive the benefit of a downward
dispositional departure. There is a
difference between not having a sentence to challenge and making an agreement
that provides a disincentive to do so.
Lyons also claims he had no opportunity to appeal
until the district court executed his sentence.
However, he cites Spahn to
challenge the enforceability of his sentence, and Spahn arose in the context of a waiver of the defendant’s right to
an appeal after a conviction, indicating that Lyons also could have directly challenged the
waiver. 704 N.W.2d at 488. Lyons
chose to accept the plea agreement and declined to challenge its validity on
direct review. Although the agreement
provided a strong disincentive to not appeal until after his probation was
revoked, it was not impossible for him to challenge the sentence on direct
review, and, therefore, we will not now expand the retroactivity rules of Blakely to cases in which a plea
agreement prohibits a direct appeal.
evidence to support particular-cruelty finding
also argues that there is insufficient evidence to support the aggravating
factor of particular cruelty, and thus the upward durational departure cannot
be imposed. He alleges that the
particular-cruelty elements alleged by the state are coextensive with the
elements of first-degree assault. The
decision to depart from the presumptive sentence rests within the district
court’s discretion and will not be reversed absent a clear abuse of that
discretion. State v. Givens, 544
N.W.2d 774, 776 (Minn.
1996). And if the record supports
findings that substantial and compelling reasons exist, this court will not
modify the departure unless it has a “strong feeling” that the sentence is
disproportional to the offense. State
v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984)
The court accepted Lyons’s plea agreement that allowed a
downward dispositional departure and a double upward durational departure from
the guidelines. Lyons pleaded guilty to aiding and abetting
first-degree assault; therefore, the acts of the others who had aided were
attributable to him for sentencing purposes. See Minn.
Stat. § 609.05, subd. 1 (2000) (establishing criminal liability if a
defendant aids another in committing a crime); see also State v. Gelhar, 392 N.W.2d 609, 612 (Minn. App. 1986) (upholding upward departure
based on the acts of others defendant had aided and abetted in a sexual
assault). The record shows that M.S. was
assaulted numerous times by various men throughout the course of the evening. Periodic and incremental assaults culminated
in Lyons and his friend chasing M.S. down, tackling him, and punching and
kicking him while he lay defenseless on the ground. One of the men picked M.S. up from under his
arms and another man kicked him in the face approximately five to six times. The men initially stopped assaulting M.S., but
then resumed the assault and dragged M.S.’s body out to a road and left him on
the curb. M.S. was
hit at least twice with a baby stroller, and one of the men also hit him in the
head with a rum bottle. After this repeated and brutal attack by the four men, M.S.
was left by the side of the road. No one
in the group called an ambulance or did anything to alleviate M.S.’s injuries,
which were so severe that the doctors initially believed that M.S. would not
survive. The court noted that it was a
“savage attack” that occurred over a “long course of time.” Therefore,
the district court did not abuse its discretion in accepting a plea agreement
that involved an upward durational departure because the record supports a finding
of particular cruelty by Lyons,
as he aided and abetted others in assaulting M.S., and we affirm that determination.