IN SUPREME COURT
Court of Appeals
Concurring specially, Anderson, Paul H., J.
Dissenting, Gildea, and Page, JJ.
Filed: August 10, 2006
Office of Appellate Courts
Douglas Alan Dettman,
S Y L L A B U S
2. An express, knowing, voluntary, and intelligent waiver of the right to a jury determination of facts supporting an upward sentencing departure is required before a defendant’s statements at his guilty-plea hearing may be used to enhance his sentence beyond the maximum sentence authorized by the facts established by his guilty plea.
3. A defendant’s statements to police during interrogation are not admissions on which a district court may base an upward sentencing departure.
4. A Blakely error that increased the defendant’s sentence by 72 months was not harmless error.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Russell A., Chief Justice.
Douglas Alan Dettman pleaded guilty to one count of first-degree criminal
sexual conduct. The district court
sentenced him to 216 months in prison, a 72-month upward departure from the presumptive
sentence. See Minn. Stat. § 609.342, subd. 2(b) (2004). While his case was pending on appeal, the United
States Supreme Court decided Blakely v.
Washington, 542 U.S. 296 (2004).
Based on Blakely, the court of
appeals reversed Dettman’s sentence, holding that the upward sentencing departure
was unconstitutional because it was based on judicial findings of fact. State
v. Dettman, 696 N.W.2d 812, 813, 816 (
facts giving rise to this appeal are relatively straightforward. In the late hours of May 12 or very early on
May 13, 2003, Dettman called L.L.B. on the phone and asked her to come to his
apartment to assist her boyfriend, who Dettman said was in trouble. When L.L.B. arrived at Dettman’s apartment, Dettman told her that her boyfriend
had gone to purchase cigarettes, and L.L.B. entered the apartment to wait for his
return. Dettman then grabbed a piece of
duct tape and attempted to cover L.L.B.’s mouth with it. When L.L.B. fought back, Dettman restrained
her and told her to be quiet or he would cut her throat. Dettman then instructed L.L.B. to get
undressed and get on his bed, where he penetrated her vaginally with his
fingers and put his mouth on her vagina.
According to the criminal complaint, Dettman also told police that he
ordered L.L.B. to sit on his face and urinate into his mouth. At this point, the attack was interrupted by
Dettman was arrested and charged with three counts of first-degree criminal sexual conduct and one count of kidnapping. On January 12, 2004, Dettman pleaded guilty to one count of first-degree criminal sexual conduct in exchange for dismissal of the other charges. At the plea hearing, the district court informed Dettman of his right to a jury trial on the issue of guilt, which he waived. Dettman then admitted luring L.L.B. to his apartment by telling her that her boyfriend was in trouble, performing multiple types of sexual penetration, and causing her to fear great bodily harm by threatening to slit her throat.
On March 1, 2004, the district court sentenced Dettman to 216 months in prison, a 72-month upward departure from the 144-month presumptive sentence provided in Minn. Stat. § 609.342, subd. 2(b). The court based the departure on the particular cruelty with which the offense was committed and the lasting psychological impact on the victim. With respect to particular cruelty, the court determined that Dettman (1) exploited his knowledge of L.L.B.’s relationship with her boyfriend to lure her to Dettman’s apartment, (2) subjected L.L.B. to multiple forms of penetration, (3) planned and prepared for the assault by pre-cutting duct tape that he planned to use to silence L.L.B., and (4) ordered L.L.B. to engage in especially repulsive acts.
appealed, and while his appeal was pending before the court of appeals, the
United States Supreme Court decided Blakely
v. Washington, 542 U.S. 296 (2004). In
Blakely, the Court reiterated its
holding in Apprendi v. New Jersey,
530 U.S. 466 (2000), that the Sixth Amendment requires that, other than a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed “statutory maximum” must be proved to a jury beyond a reasonable
doubt. Blakely, 542
the court of appeals, Dettman argued that the upward departure in his case
violated the rule announced in Blakely
because the departure was based on facts found by the district court. Relying on Blakely,
the court of appeals concluded that the upward departure violated Dettman’s
Sixth Amendment right to a jury determination of aggravating sentencing factors
and reversed and remanded for resentencing.
Dettman, 696 N.W.2d at 816. The court of appeals noted that the “findings
supporting the upward durational departure were made solely by the district
court,” and, under Blakely, Dettman
was “entitled to a jury determination of any fact that increases the
presumptive sentence.” Dettman, 696 N.W.2d at 815. The court concluded that a defendant must make
an express on-the-record waiver of his right to a jury determination of aggravating
sentencing factors before his statements at a plea hearing may be used to
enhance his sentence.
We have previously determined
that Blakely announced a new rule of
constitutional criminal procedure which applies to cases pending on direct
review at the time Blakely was
decided. State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005); O’Meara v. State, 679 N.W.2d 334, 339 (
On appeal to this court, the state argues that Dettman forfeited appellate consideration of the alleged Blakely violation by failing to preserve the error at the district court. The state contends that most district court errors, if not properly preserved for appeal, are deemed forfeited and that any appellate review of the error must be under the plain error standard. In addition, the state argues that, irrespective of the standard of review, no Blakely error occurred in this case because Dettman admitted the facts necessary to support the sentencing departure at his plea hearing and in statements made to police, which were later incorporated into the complaint. This case thus presents two Blakely-related questions: (1) whether Dettman forfeited appellate review of his Blakely claim by failing to object on Blakely grounds at the district court; and (2) whether the upward sentencing departure may constitutionally be based on statements Dettman made at his plea hearing and statements attributed to him in the criminal complaint.
We first address the state’s contention
that Dettman forfeited consideration on appeal of his Blakely claim because he failed to preserve the alleged Blakely error below. The state correctly notes that Dettman did
not object at the district court to his sentence on the basis of a violation of
his Sixth Amendment jury-trial right. Generally,
a district court error not objected to at the district court is considered
forfeited for purposes of appeal. See, e.g., State v. Blanche, 696 N.W.2d 351, 375 (
now turn to the state’s second argument—that no Blakely error occurred because Dettman admitted the facts used to
enhance his sentence. The alleged Blakely error in this case presents a constitutional
question that we review de novo.
the Apprendi line of cases, it is
clear that Dettman’s sentence could not constitutionally have been enhanced, beyond
the maximum sentence authorized by the facts established by his guilty plea, based
on judicial findings of fact. See
The state argues that Dettman admitted, both at his plea hearing and in police interrogation later incorporated into the complaint, facts supporting the upward departure, and therefore no Blakely error occurred. At his plea hearing, Dettman and his attorney had the following exchange:
Q. On May 12th or early May 13th did you place a phone call to a young woman with the initials L.L.B.?
Q. And you asked her to come over to your apartment to help her boyfriend who was in trouble, is that correct?
Q. She drove to your apartment and eventually came up to your apartment, is that correct?
Q. When she got there her boyfriend was not at the apartment, is that correct?
Q. You had told her that her boyfriend had gone out to get cigarettes, is that correct?
* * *
Q. You penetrated her vaginally with your fingers, is that correct?
Q. You also put your mouth in her vaginal region, it that correct?
In addition, Dettman made several statements to police that could support the district court’s upward departure if they constitute admissions on which an upward departure may constitutionally be based. Dettman told police that he planned for the assault by precutting a strip of duct tape to muzzle L.L.B. and by arranging pillows on his bed where he planned to have her lie. Dettman also told police that he ordered L.L.B. to urinate into his mouth.
The state argues that these statements together constitute admissions supporting the district court’s finding of particular cruelty, which the court based on Dettman’s exploitation of his knowledge of L.L.B.’s relationship with her boyfriend to lure her to Dettman’s apartment, his planning for the assault, his ordering L.L.B. to engage in especially repulsive acts, and the multiple forms of penetration. The state contends that Blakely does not require an express waiver of the right to a jury determination of aggravating sentencing factors before a defendant’s admissions may be used to enhance his sentence. In opposition, Dettman argues that a knowing, voluntary, and intelligent waiver of that right must precede the use of a defendant’s admissions to enhance his sentence, and, in the absence of such a waiver by Dettman, the upward departure in his case violates the Sixth Amendment. Dettman notes that he neither stipulated to the aggravating factors found nor consented to judicial fact finding on those issues.
The court of appeals concluded
that a knowing, voluntary, and intelligent waiver of a defendant’s Sixth
Amendment right to a jury determination of facts supporting an upward
sentencing departure is required before the defendant’s statements may be used
to enhance his sentence. Dettman, 696 N.W.2d at 815. Because Dettman did not expressly waive this
right, the court held that his statements could not be used to enhance his
holding, the court of appeals relied largely on an earlier court of appeals
case, State v. Hagen, 690 N.W.2d 155
(Minn. App. 2004). In
In addition, the court in Hagen
noted that a defendant’s stipulation to an element of an offense must be
supported by a waiver of the defendant’s right to a jury trial on that
In State v. Barker,
we expressed approval of the court of appeals’ analysis and conclusion in
The Apprendi line of cases establishes the principle that a defendant’s
constitutional right to a jury trial extends to any fact, other than the fact of a prior conviction, that is used
to sentence the defendant. Apprendi, 530 U.S. at 490; State v. Allen, 706 N.W.2d 40, 46 (Minn. 2005); see also Blakely, 542 U.S. at 304 (recognizing
that the Sixth Amendment jury-trial right extends to all facts that the law
makes essential to punishment); see also
Apprendi, 530 U.S. at 477, 494 n.19
(noting that a criminal defendant is entitled to a jury finding of each element
of the offense with which he is charged and that a fact used to enhance a
sentence is the functional equivalent of an element of an offense). This right is grounded in the Sixth Amendment’s
guarantee of the right to a jury trial and the requirement of proof beyond a
reasonable doubt. See Apprendi, 530
It is well established that a defendant’s waiver of his
right to a jury trial on the elements of an offense must be knowing,
intelligent, and voluntary. Brady v. United States,
The dissent relies on language in Blakely
that facts “admitted by a defendant” may be used to determine the defendant’s
sentence to support its conclusion that Dettman’s plea hearing statements could
constitutionally be used to enhance his sentence. This reasoning begs the question of what
constitutes an “admission” for Blakely
purposes. In the more familiar context of the Sixth
Amendment right to a jury trial on the elements of an offense, it is clear that
only a defendant’s statement made after a knowing waiver of his right to jury
trial constitutes an admission that dispenses with the state’s burden of
proving offense elements to a jury. See Boykin
v. Alabama, 395
Furthermore, language in Blakely supports our conclusion that an express waiver is required before a defendant’s statements may be used to enhance his sentence. In Blakely, the Court stated,
nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.
We are aware that several federal
courts of appeals have upheld upward sentencing departures based on facts
admitted at a sentencing hearing, a plea hearing, or in a plea agreement,
without requiring an express waiver of the right to a jury determination of aggravating
sentencing factors. See, e.g., United States v. Pittman, 418 F.3d 704, 709 (7th Cir. 2005); United States v. Monsalve, 388 F.3d 71,
73 (2d Cir. 2004); United States v. Saldivar‑Trujillo, 380 F.3d 274, 279 (6th Cir.
state cites our decision in State v.
Leake, 699 N.W.2d 312 (
Leake is distinguishable from the case at bar in two crucial ways
and thus does not control resolution of the issue presented here. First, in Leake,
the admission used to enhance Leake’s sentence was an admission to an essential
element of a prior offense to which Leake had pleaded guilty—a “fact
established by a plea of guilty.” Leake, 699 N.W.2d at 324; see Booker, 543
unlike this case, Leake involved Blakely’s prior conviction exception,
“which appears to incorporate its own admission exception.” Barker,
705 N.W.2d at 774; see Leake, 699 N.W.2d at 323-25. The United States Supreme Court has expressly
held that a defendant’s statements during a plea colloquy may be used to determine
the character of a prior offense for purposes of Blakely’s prior conviction exception, without requiring a knowing
waiver of the right announced in Blakely. Shepard
v. United States, 544
Dettman’s waiver of his right to a jury trial on the issue of guilt cannot be interpreted as a waiver of his right to a jury determination of aggravating sentencing factors. Dettman knowingly waived his jury-trial right as to the elements of first-degree criminal sexual conduct. However, because Dettman was sentenced before Blakely was decided, he could not have known that he had a right to a jury determination of the facts used to enhance his sentence—facts going beyond the elements of first-degree criminal sexual conduct—and thus did not knowingly waive that right. See Minn. Stat. § 609.342, subd. 1; Brown, 129 P.3d at 950-51.
In sum, in the absence of a
knowing waiver of his Sixth Amendment right to a jury determination of facts
supporting an upward sentencing departure, Dettman’s statements at his plea
hearing cannot be used as admissions to enhance his sentence. Additionally, Dettman’s statements to police,
later incorporated into the complaint, are not admissions
on which a judge may base a sentence enhancement because they were not made for purposes of dispensing with the state’s burden of proof after a knowing waiver of Dettman’s jury-trial rights. Accordingly, because the upward departure in this case was based on facts neither found by a jury nor properly admitted by Dettman, we hold that the departure violated Dettman’s Sixth Amendment rights.
determined that the upward sentencing departure in this case violated the rule
established in Blakely, we now
consider whether this error was harmless.
See Osborne, 715 N.W.2d at 447; see
S P E C I A L C O N C U R R E N C E
ANDERSON, Paul H., Justice (concurring specially).
agree with the result reached by the majority, but disagree with the majority’s
analysis for the reasons stated in my special concurrence in State v. Osborne.
Unlike the majority, I would apply the plain error doctrine to the unobjected-to Blakely error in this case and conclude that there was error, it was plain because the aggravating factors were not admitted to a degree that the concerns raised in Blakely are satisfied, that the plain error affected Dettman’s substantial rights, and that the fairness and the integrity of Dettman’s trial was affected to the extent that he is entitled to relief. Using this analytical framework, it is not necessary to reach the question of waiver.
I would affirm the court of appeals.
D I S S E N T
GILDEA, J. (dissenting).
I respectfully dissent from the majority’s conclusion that the district court erred in imposing an upward departure sentence. The district court’s decision to depart was based on facts Dettman admitted after he executed a knowing and voluntary waiver of his trial rights. I would reverse the court of appeals and uphold the sentence imposed.
In Blakely v. Washington, the Supreme Court
recognized that sentencing courts could use facts the defendant admitted in
imposing sentence. 542
In Blakely, the Supreme Court said that
“the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542
Dettman waived his trial rights, including his right to remain silent and his right to a jury trial. Prior to accepting Dettman’s guilty plea, the district court inquired to insure that Dettman understood these and all of his rights. Specifically, the district court asked if Dettman knew that there was no agreement regarding what his sentence would be, and
that at sentencing the actual sentence will be up to the judge who sentences you, * * * after hearing arguments from both sides and that both attorneys are free to make a motion for a downward departure from this guideline sentence and the prosecution is also free to make a motion for an upward departure?
Dettman responded that he understood. The judge then inquired to make sure that Dettman understood that “there are no guarantees about whether either of those motions would be granted and it’s possible that you could be sentenced to longer than 144 months?” Again Dettman indicated that he understood and stated that he wanted to proceed with his guilty plea.
Following the district court’s examination, Dettman admitted that he lured the victim to his apartment through a lie, restrained her, threatened to cut her throat if she was not quiet, engaged in multiple acts of sexual penetration without the victim’s consent, and that the victim feared for her safety. These admissions were beyond the elements of the offense to which Dettman pleaded guilty and accordingly, could be used to support an aggravated departure as long as the departure complied with the rule in Blakely.
Before Blakely, trial courts in Minnesota based upward departures upon
three types of facts: 1) a fact admitted by the defendant,
2) a fact reflected in the jury verdict, and 3) a fact found by a judge without
first obtaining the defendant’s waiver of a jury trial. In Blakely,
the Supreme Court ruled that, under sentencing guidelines similar to
obtaining the defendant’s waiver of a jury trial) violated the defendant’s Sixth Amendment right to a jury trial. See 542
In Blakely, the defendant entered an Alford plea; he did not make factual admissions but merely admitted
that the evidence the state had was sufficient to convict him. See
State v. Blakely, 47 P.3d 149, 153 (Wash. Ct. App. 2002), rev’d, 542 U.S. 296 (2004). The Supreme Court thought it important to
note that the defendant had admitted only to the elements of the crime to which
he pleaded guilty—“but no other relevant facts.” Blakely,
After the plea, the
sentencing court imposed an upward departure, and not the sentence recommended
in the plea agreement. The sentencing
judge imposed an upward departure based not on any facts admitted by the
defendant, but on the victim’s description of the crime. 542
In my view, the error in the majority’s reasoning is its contention that “[t]he use of a defendant’s statements to enhance his sentence thus entails a relinquishment of his Sixth Amendment right to a jury determination of facts supporting an upward sentencing departure.” A defendant did not have the right to a jury determination of admitted sentencing factors before Blakely and neither Blakely nor its progeny have created such a right. Instead, in determining upward departures, defendants now have a right to a jury determination of facts other than the two types of facts the Blakely court specifically said do not require a jury determination (i.e. facts admitted by the defendant or facts reflected in a jury verdict). Blakely did not change precedent that allowed a sentencing court to impose an aggravated departure based on facts the defendant has admitted.
The majority argues that the Blakely
admission exception “begs the question of what constitutes an ‘admission’ for Blakely
purposes.” The Supreme Court, however,
has provided the answer to the majority’s question. In articulating the admission exception in Blakely,
the Supreme Court cited to its opinion in Apprendi. Blakely, 542
Every federal circuit court of appeals has indicated that sentencing courts do not run afoul of Blakely or the Sixth Amendment when they rely on a defendant’s admissions of fact in sentencing. See, e.g., United States v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir. 2004) (“The sentence in the present case was based solely upon the facts admitted by [the defendant] as part of his guilty plea. Blakely therefore does not affect the validity of his sentence.”). Even though Dettman is arguing that a “right” based on the U.S. Constitution has been violated, the majority dismisses the federal cases without discussion, and relies instead on certain state cases. While it seems to me that the federal cases are more useful to an interpretation of what is purportedly a federal constitutional “right,” we need not even look outside our own jurisprudence to resolve this case.
In Shattuck, this court implicitly
recognized that when the “guilty plea alone” supports an enhanced sentence, the
rule in Blakely is not
implicated. 704 N.W.2d at 131, 141-42 (
we relied on the “admission exception” in upholding an enhanced sentence in State v. Leake, 699 N.W.2d 312 (
The majority attempts to distinguish Leake, arguing that the use of the defendant’s admissions was constitutional because those admissions were made within the context of the prior conviction exception to the Apprendi/Blakely rule. Nothing in Leake supports this limitation. We unqualifiedly said in Leake: “Under both Apprendi and Blakely, a defendant’s admissions can be used to determine sentencing enhancements.” Leake, 699 N.W.2d at 324. We also cited with approval the decisions from the federal circuits, including some of the federal cases cited supra, that hold that sentencing courts may rely on defendants’ factual admissions. See Leake, 699 N.W.2d at 325(citing federal cases). Finally, the admissions in Leake were made as part of a guilty plea—just as in this case. We did not condition the sentencing court’s reliance on these factual admissions on a finding that the defendant had waived a separate right to have a sentencing jury determine these facts. The defendant admitted to the facts as part of a guilty plea and the sentencing court in the later case was permitted to rely on those facts as the basis for imposing an enhanced sentence. The same result is warranted in this case. I would hold that Dettman’s admissions at his plea hearing were properly considered by the district court in determining whether to impose an upward sentencing departure.
Even if Blakely gave Dettman a right to jury trial on sentencing factors, I would conclude that his waiver of his trial rights included this Blakely right. The majority bases its conclusion that the district court erred in imposing an upward departure on the assertion that “Dettman’s waiver of his right to a jury trial on the issue of guilt cannot be interpreted as a waiver of his right to a jury determination of aggravating sentencing factors.” The majority cites to our rule that waivers of the right to jury trial must be knowing and voluntary and articulated on the record. There is no dispute that Dettman made such a waiver in this case. In his Petition to Enter a Plea of Guilty and independently on the record, Dettman gave up his trial rights, including his right to “trial by jury.” The dispute here is only about whether Dettman’s waiver was “knowing” as to any Blakely rights.
Dettman did not explicitly waive a jury finding of aggravating factors, the
majority concludes that his waiver of his trial rights was unknowing and
therefore ineffective as to any rights created by Blakely. Of course, Dettman
could not have articulated a waiver of any Blakely
rights since the “new rule” in Blakely
would not be announced until six months after the district court accepted
Dettman’s guilty plea.
The leading case from the
Supreme Court on the question of whether changes in the law invalidate a guilty
plea is Brady v. United States, 397
U.S. 742 (1970). In Brady, the Supreme Court held that “absent misrepresentation or
other impermissible conduct by state agents, a voluntary plea of guilty
intelligently made in the light of the then
applicable law does not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise.”
It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.
McMann v. Richardson, 397
recently, the Court has confirmed its holding in Brady, stating “that the Constitution, in respect to a defendant’s
awareness of relevant circumstances, does not require complete knowledge of the
relevant circumstances, but permits a court to accept a guilty plea, with its
accompanying waiver of various constitutional rights, despite various forms of
misapprehension under which a defendant might labor.”
this clear and long-established precedent, it should be no surprise that every
federal circuit court of appeals that has addressed the issue has concluded
that the defendant’s guilty plea was knowing, voluntary, and intelligent
notwithstanding a subsequent change in the applicable sentencing law. For example, in United States v. Parsons, the defendant pleaded guilty to mail
fraud and money laundering. 408 F.3d
519, 520 (8th Cir. 2005). The defendant
claimed “that the district court committed Sixth Amendment error by enhancing
his sentence under the [Federal Sentencing] Guidelines based on the amount of
loss” attributable to his crimes. Parsons, 408 F.3d at 521. In addition to concluding that there was no
error because Parsons had admitted to the amount of the loss, the Eighth
Circuit also concluded that “the development in the law announced by Booker subsequent to Parsons’s guilty
plea does not invalidate his plea.” Parsons, 408 F.3d at 521 (citing Brady, 397
These federal appellate cases recognize that the failure to anticipate a change in the law regarding sentencing does not, as a constitutional matter, undermine the validity of the defendant’s guilty plea. As the Sixth Circuit succinctly stated after reviewing the Supreme Court’s precedent,
the Court has explained that where developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. A valid plea agreement, after all, requires knowledge of existing rights, not clairvoyance.
Dettman made his guilty plea fully aware of the charges against him, after advice from his counsel, and with a full understanding of the range of consequences he faced as a result of pleading guilty. The analysis in the federal cases compels the conclusion that Dettman’s guilty plea was voluntary, knowing, and intelligent.
In the face of Brady and its progeny, the only way for the majority to conclude that Dettman’s waiver was not valid as to any Blakely rights would be to conclude that Dettman had two separate jury trial rights, one on the question of guilt and a separate one on sentencing factors. The majority cites no case that stands for that proposition.
I would hold that Dettman’s plea does not become unknowing because of the new rule in Blakely.
A final issue remains
unaddressed by the majority. Dettman
alternatively argues that the facts admitted by him do not present substantial
and compelling circumstances justifying an upward sentencing. This argument is without merit. Dettman’s express, knowing, and voluntary
admission to multiple forms of sexually penetrating the victim amply supports
the district court’s decision to depart.
State v. Van Gorden, 326
N.W.2d 633, 635 (
I would reverse the court of appeals and uphold the sentence originally imposed.
I join in part II of Justice Gildea’s dissent.
 The presumptive 144-month sentence in
Minn. Stat. § 609.342, subd. 2(b), is
the maximum sentence authorized by the facts established by Dettman’s guilty
plea—that is, the facts necessary to establish the elements of the offense to
which he pleaded guilty. Minn. Stat. §
609.342, subd. 2(b) (establishing a presumptive sentence of 144 months for
first-degree criminal sexual conduct); State v. Shattuck, 704 N.W.2d 131, 141 (
 Our holding is in line with several
other state courts that have held that a knowing, voluntary, and intelligent
waiver is required before a defendant’s statements may be used to enhance his
sentence. See, e.g., State v. Brown,
129 P.3d 947, 951 (
 Our recent holding in Osborne that failure to raise a Blakely claim at the district court does not forfeit appellate review of that claim is similarly premised on the jury trial waiver requirement firmly embedded in our jurisprudence and reflected in Minn. R. Crim. P. 26.01. See Osborne, 715 N.W.2d at 442-46.
 The dissent cites Almendarez-Torres v. United States, 523 U.S. 224 (1998), for the proposition that an admission for Blakely purposes includes a fact admitted by a defendant during a plea hearing. But Almendarez-Torres involved an entirely different exception to the rule announced in the Apprendi line of cases, the prior conviction exception, which is not implicated in the case at bar. See Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)); Almendarez-Torres, 523 U.S. at 227. That is, the fact admitted by the defendant in Almendarez-Torres, which the Supreme Court held could be used to enhance his sentence, was the fact of a prior conviction. Almendarez-Torres, 523 U.S. at 227; see Apprendi, 530 U.S. at 488 (“[O]ur conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was the prior commission of a serious crime.” (quotation omitted)). Had Dettman admitted to a prior criminal conviction, we do not dispute that the conviction could have been used to enhance his sentence under the prior conviction exception, if otherwise permitted under a particular enhancement statute.
 The Oregon Supreme Court has likewise concluded that an “admission” for Blakely purposes must be a judicial admission—that
is, a “statement ‘made by a party * * * for the purpose of dispensing with proof of a fact in issue.’” State v. Harris, 118 P.3d 236, 244 (Or. 2005) (quoting Foxton v. Woodmansee,386 P.2d 659, 662 (Or. 1963)). The
court in Harris distinguished such an admission from the
broader evidentiary concept of an admission by a party opponent.
 Outside of the Blakely context, we have recognized that a defendant’s stipulation to an element of an offense entails a waiver of his right to a jury finding on that element. See Berkelman, 355 N.W.2d at 397 (noting that the defendant “in effect” offered to waive his right to a jury trial on an element of the crime charged by agreeing to stipulate to that element).
 At the plea hearing, the district court informed Dettman only of his right to a jury trial on the issue of guilt. As the dissent notes, the district court told Dettman that his sentence could be enhanced beyond the 144-month presumptive sentence. But the court never informed Dettman that he had a right to a jury determination of the facts supporting such an enhancement, information crucial to a knowing waiver.
v. United States, 397 U.S. 742 (1970), and its progeny, cited by the
dissent, are inapposite here. Brady involved an attempt by a defendant
to invalidate his guilty plea due to a subsequent change in the law, which the
defendant argued altered the calculus involved in his decision to plead
guilty. Brady, 397 U.S. at 756-57.
The Supreme Court rejected Brady’s contention that his decision to plead
guilty was unintelligently made because later case law revealed that his
decision was based on a faulty legal premise.
 Contrary to the dissent’s assertion, our interpretation of “admissions” for Blakely purposes does not render the Blakely “admission exception” a nullity. When a defendant properly waives his right to a jury determination of aggravating sentencing factors, his admissions may be used to enhance his sentence.
 Dettman pleaded guilty to violation of Minn. Stat. § 609.342, subd. 1(c) (2004), which requires sexual penetration under circumstances that “cause the complainant to have a reasonable fear of imminent great bodily harm.”
 See, e.g., Rairdon v. State, 557 N.W.2d 318, 321, 327 (Minn. 1996) (upward departure based on defendant’s admission during jury trial of beginning sexual abuse of daughter when she was eight and continuing abuse for five years); State v. Garcia, 302 N.W.2d 643, 645-47 (Minn. 1981) (upward departure based on defendant’s admissions made during guilty plea), overruled on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996).
 The defendant in Apprendi similarly had not admitted the fact the sentencing court used to enhance his sentence. See 530 U.S. at 471 (noting that defendant “took the stand himself [during the sentencing hearing], explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans.”).
 The majority purports to rely on a portion of Blakely to support its conclusion “that an express waiver is required before a defendant’s admissions may be used to enhance his sentence.” The quotation from Blakely is:
When a defendant pleads guilty, the State is free to seek judicial enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding. If appropriate waivers are procured, States may continue to offer judicial fact finding as a matter of course to all defendants who plead guilty.
 See also
United States v. Jimenez-Beltre, 440
F.3d 514, 520 (1st Cir. 2006); United
States v. Burke, 431 F.3d 883, 889 (5th Cir. 2005); United States v. Ameline, 409 F.3d 1073,
1077-78 (9th Cir. 2005); United States v.
Lechuga-Ponce, 407 F.3d 895, 896 (7th Cir. 2005); United States v. Bartram, 407 F.3d 307, 314 (4th Cir. 2005) (“The
district court did not err in its fact finding because the facts were based on
the defendant’s own admissions [made at the sentencing hearing]. Therefore, we are of the opinion and hold the
defendant’s argument under Blakely to
be without merit.”), cert. denied,
least one state explicitly agrees with the conclusion of the Federal circuits,
with others impliedly agreeing. See, e.g., Morgan v. State, 829 N.E.2d 12, 17 (Ind. 2005) (“We do not
see how the Sixth Amendment is implicated or endangered by permitting judges to
use aggravators to enhance sentences so long as the underlying facts supporting
the aggravator are found by a jury or admitted by a defendant.”); see also State v. Allen, 615 S.E.2d 256, 265 (N.C. 2005), abrogated on other grounds by Washington v.
Recuenco, 126 S. Ct. 2546 (2006); State
v. Ose, 124 P.3d 635, 639 (Wash. 2005); cf. Lopez v. People, 113
P.3d 713, 719, 723 (
the majority acknowledges, Barker’s agreement
“in concept” with the approach the court of appeals adopted in State v. Hagen, 690 N.W.2d 155 (Minn.
App. 2004), was dicta.
 To the extent the district court relied on the victim’s testimony as a basis to enhance, we held this “was error as it does not meet the requirements of Blakely.” Leake, 699 N.W.2d at 325 n.9.
majority also contends that Leake is
distinguishable because the admissions relied on were simply admissions to the
elements of the offense and Leake had properly waived his right to a jury trial
on the question of his guilt or innocence as to that charge. The majority’s reading of the Blakely admission exception seems to be
that it covers only a defendant’s admissions to elements of the crime. Such a reading would render the exception a
 The Court later characterized the defendant’s plea in Brady as:
intelligent because, although later judicial decisions indicated that at the time of his plea he did not correctly assess every relevant factor entering into his decision, he was advised by competent counsel, was in control of his mental faculties, and was made aware of the nature of the charge against him.
Bousley v. United States, 523
 See also United States v. Roque, 421 F.3d 118, 119 (2d Cir. 2005) (citing Brady and holding that the defendant could “not withdraw his plea as unintelligent, involuntary, or otherwise illegal, based solely on changes in federal law effected by the United States Supreme Court’s decision in [United States v. Booker].”), cert. denied, 126 S. Ct. 1094 (2006); United States v. Johnson, 410 F.3d 137, 151-53 (4th Cir. 2005) (“the issuance of Booker after the plea agreement was reached does not render Johnson’s plea unknowing or involuntary”), cert. denied, 126 S. Ct. 461 (2005); United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005) (“The Supreme Court has explained that where subsequent developments in the law expand a right that a defendant has waived in a plea agreement, that change does not make the plea involuntary or unknowing or otherwise undo its binding nature.”); United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (“Supreme Court precedent is quite explicit that as part of a plea agreement, criminal defendants may waive both rights in existence and those that result from unanticipated later judicial determinations.”), cert. denied, 126 S. Ct. 550 (2005); United States v. Sahlin, 399 F.3d 27, 31 n.3 (1st Cir. 2005) (“Brady also makes clear that a subsequent judicial decision changing the relevant sentencing law does not permit an attack on whether the plea was knowing.”).
majority cites nothing from our own jurisprudence that supports a conclusion
that our understanding of the scope of a guilty plea varies from the Supreme
Court’s rule articulated in Brady and
McMann. Moreover, while we do not appear to have
addressed the issue in the context of sentencing, we have followed the Supreme
Court’s formulation of the rule in other contexts. See,
e.g., State v. Danaher, 293
 Blakely itself seems to recognize that the constitution guarantees the defendant one right to a jury trial. My reading is based on the exchange between Justice Scalia (for the majority) and Justice Breyer (in dissent), where the majority agreed with Justice Breyer that the “States are not required to give defendants the option of waiving jury trial on some elements but not others.” 542 at 310 n.12. Blakely also does not prevent a state from giving defendants a separate jury trial on sentencing factors, and I note that as a matter of public policy, I think it preferable post-Apprendi and Blakely for defendants who desire to forego their trial rights to execute separate waivers of a jury finding on guilt and a jury finding on sentencing factors. I do not believe, however, that my public policy preferences shed any light on the constitutional question raised by Dettman.
 To conclude otherwise effectively withdraws Dettman’s
guilty plea or rewrites the plea agreement the parties reached. I do not believe this court should do
either. As the Tenth Circuit said, “The essence of plea agreements * * * is that they represent
a bargained-for understanding between the government and criminal defendants in
which each side foregoes certain rights and assumes certain risks in exchange
for a degree of certainty as to the outcome of criminal matters.” Porter,
405 F.3d at 1145.
One of the risks that Dettman assumed was the risk that the Supreme
Court would announce what we have described as a “new rule.”