IN SUPREME COURT
Court of Appeals
Anderson, G. Barry, J.
Dissenting, Hanson, Page, and Anderson, Paul H., JJ.
Filed: September 28, 2006
Office of Appellate Courts
Stephanie Dawn Losh,
S Y L L A B U S
1. Minnesota Statutes § 244.11, subd. 3 (2004), violates the doctrine of separation of powers by unconstitutionally encroaching on a judicial function.
2. A sentencing appeal pursuant to State v. Fields, 416 N.W.2d 734 (
3. The district court did not abuse its discretion in imposing an upward durational departure.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, G. Barry, Justice.
Losh was indicted for second-degree murder, Minn. Stat. § 609.19, subd. 2(1) (2004), for her actions in connection with the death
of Brian Jenny. She pleaded guilty to
kidnapping, Minn. Stat. § 609.25, subd. 2(2) (2004). At sentencing, the district court departed
durationally and dispositionally, imposing a 120-month stayed sentence. On March 8, 2004, the district court found
Losh to be in violation of the terms of her probation and executed her
sentence. Losh appealed. The court of appeals affirmed Losh’s sentence
and the execution of her sentence. State v. Losh, 694 N.W.2d 98, 99 (
In early October
2002, Brian Jenny and his brother-in-law, David Matzke, were staying in a cabin
in Federal Dam,
returned to the cabin and asked Losh for a ride. Losh drove Jenkins to a location where Losh
observed Conger hitting a person (whom Losh later learned was Jenny) with a
baseball bat. Losh and Jenkins returned
to the cabin, and after leaving the cabin once again, they noticed Conger by
the side of the road. Conger joined them
in the vehicle and instructed Losh to drive to the location where he had left
Jenny. Conger and Jenkins placed Jenny
in the back of the car. Losh stated that
she did not look at Jenny when Jenkins and Conger placed him in the car and
that Jenny was not saying anything. Jenkins
and Conger told Losh to drive “toward Sugar Point or * * * Peter’s
Losh was indicted
for second-degree felony murder; the underlying felony was kidnapping. Losh reached a plea agreement with the state,
and the district court accepted Losh’s plea of guilty to kidnapping involving
unsafe release and great bodily harm, Minn. Stat. § 609.25, subd.
2(2). This is a severity level nine
offense with a presumptive sentence of imprisonment for 86 months.
On March 8, 2004, the district court found that Losh had violated the terms of her probation, namely by ingesting a pill containing a narcotic. The district court executed her 120-month sentence. Losh appealed to the court of appeals, and while her appeal was pending, the Supreme Court decided Blakely. The court of appeals affirmed the district court, holding that Blakely did not apply retroactively to Losh’s sentence because Blakely was decided after the time to file a direct appeal from the judgment had expired. Losh, 694 N.W.2d at 99. We granted review, and before this court, Losh challenges her sentence on two grounds: (1) that her sentence violates Blakely, a rule to which Losh claims she is entitled, and (2) that the district court abused its discretion in imposing an upward durational departure. After hearing argument, we ordered the parties to file supplemental briefs addressing the question of whether we have jurisdiction to entertain Losh’s appeal in light of Minn. Stat. § 244.11, subd. 3. We first address the jurisdictional issue and then Losh’s sentencing challenges.
issue of this case is whether Losh’s appeal is time-barred by section 244.11,
subd. 3. If the appeal is time-barred, then this
court appears to be without jurisdiction to entertain this appeal. See
Ford v. State, 690 N.W.2d 706, 709 (
(a) As used in this subdivision, “appeal” means:
(1) an appeal of a sentence under rule 28 of the Rules of Criminal Procedure; and
(2) an appeal from a denial of a sentence modification motion brought under Rule 27.03, subdivision 9, of the Rules of Criminal Procedure.
(b) If a defendant agrees to a plea agreement and is given a stayed sentence, which is a dispositional departure from the presumptive sentence under the Minnesota Sentencing Guidelines, the defendant may appeal the sentence only if the appeal is taken:
(1) within 90 days of the date sentence was pronounced; or
(2) before the date of any act committed by the defendant resulting in revocation of the stay of sentence; whichever occurs first.
(c) A defendant who is subject to paragraph (b) who has failed to appeal as provided in that paragraph may not file a petition for postconviction relief under chapter 590 regarding the sentence.
(d) Nothing in this subdivision shall be construed to:
(1) alter the time period provided for the state to appeal a sentence under Rule 28 of the Rules of Criminal Procedure; or
(2) affect the court’s authority to correct errors under Rule 27.03, subdivision 8, of the Rules of Criminal Procedure.
Minn. Stat. § 244.11, subd. 3 (footnotes added).
Losh entered a plea agreement with the state, was given a stayed sentence which
was a dispositional departure, and appealed pursuant to Minn. R. Crim. P.
27.03, subd. 9 as interpreted by this court in State v. Fields, 416 N.W.2d 734 (
does not argue that her appeal falls outside the scope of section 244.11, subd.
3, or that she has met the statute’s requirements. Her principal argument is that section 244.11,
subd. 3, is unconstitutional because it violates the separation of powers under
the Minnesota Constitution. We review the constitutionality of a statute
de novo. Deegan v. State, 711 N.W.2d 89, 92 (
court has ‘primary responsibility under the separation of powers doctrine for
the regulation of evidentiary matters and matters of trial and appellate
procedure.’” State v. Lindsey, 632 N.W.2d 652, 658 (
This court has previously construed statutes that set time limits for an appeal as procedural. See In re Welfare of J.R., 655 N.W.2d 1, 2-3 (Minn. 2003) (concluding that a rule of juvenile procedure setting time limit for taking an appeal governed instead of a statute setting an identical time limit for taking an appeal). The state argues that the rules of criminal procedure do not preclude the time limit established by section 244.11, subd. 3. But, a statute purporting to govern criminal procedure need not conflict with the rules of procedure in order to violate the separation of powers and be struck down by this court. See Lindsey, 632 N.W.2d at 659 (declaring Minn. Stat. § 631.04 (2000) unconstitutional as a violation of the separation of powers despite the absence of a conflicting rule of procedure). Moreover, section 244.11, subd. 3, conflicts with this court’s interpretation of the rules of criminal procedure in State v. Fields. In Fields, this court interpreted the rules to allow a probationer to move for modification of the sentence at a probation revocation hearing, occurring long after the original sentence was imposed, and to appeal from a denial of that motion. 416 N.W.2d at 736 (citing Minn. R. Crim. P. 27.03, subd. 9). The legislature has attempted to prohibit such an appeal by certain defendants by requiring them to bring a sentencing appeal within 90 days or before they violate probation—whichever deadline passes first. Section 244.11, subd. 3.
Because this court has previously construed statutes setting time limits on taking an appeal as procedural, see J.R., 655 N.W.2d at 3, and because section 244.11, subd. 3, does not create a new cause of action or deprive a defendant of a defense on the merits, the statute unconstitutionally encroaches on a judicial function in violation of the separation of powers under the Minnesota Constitution.
state argues that the statute does not violate the separation of powers because
it is “jurisdictional, not procedural.”
In addition to this court’s implicit rejection of such a distinction in J.R., we have already determined that
the legislature may not constitutionally encroachon our appellate jurisdiction.
We have “original jurisdiction in such remedial cases as are prescribed
by law, and appellate jurisdiction in all
Despite these constitutional infirmities, this court can acquiesce to section 244.11, subd. 3, as a matter of comity. See McCoy, 682 N.W.2d at 160-61 (recognizing a statutory rule of evidence as a matter of comity despite arguable conflict with Minn. R. Evid. 404(b)); Wingo, 266 N.W.2d at 512. We decline to do so, in part, based on the policy, previously expressed in Fields, 416 N.W.2d at 736, that a defendant who has been placed on probation should not be required to appeal his or her sentence at the time the sentence is pronounced, and that such a requirement would lead to an increase in sentencing appeals. In addition, we are concerned that a recognition of this statute under comity could limit a defendant’s ability to obtain relief from an illegal sentence under Minn. R. Crim. P. 27.03, subd. 9, a possibility the state conceded at oral argument. Having determined section 244.11, subd. 3, to be unconstitutional, Losh’s appeal is properly before this court.
Losh argues that she is entitled to benefit from the rule in Blakely v. Washington. The state argues, and the court of appeals held, that because Blakely was released after the period to file a direct appeal from Losh’s conviction had expired, Blakely does not apply retroactively to Losh. Losh, 694 N.W.2d at 100-01.
In State v. Shattuck, pursuant to Blakely, we held Section II.D of the
Minnesota Sentencing Guidelines to be unconstitutional as applied “insofar as
it permits an upward durational departure based on judicial findings.” State
v. Shattuck, 704 N.W.2d 131, 142-43 (
have recently addressed the question of when a case is pending on direct
review. We held that “a case is pending
until such time as the availability of direct appeal has been exhausted, the
time for a petition for certiorari has elapsed or a petition for certiorari
with the United States Supreme Court has been filed and finally denied.” O’Meara,679 N.W.2d at 336. O’Meara failed to perfect a direct appeal
from the judgment of conviction.
Like O’Meara, Losh did not perfect an appeal directly from the judgment of conviction. See Minn. R. Crim. P. 28.02, subd. 2(1), subd. 4(3) (stating that appeal from final judgment must be taken within 90 days). Under O’Meara, Losh’s conviction appears to have become final the date her period of direct appeal expired. Losh argues, however, that she is entitled to the benefit of Blakely because: (1) for the purposes of determining the retroactive effect of Blakely, the sentence, not the conviction, must be final, and (2) “direct review” of her sentence was pending at the time Blakely was decided. Because we conclude that the appeal procedure followed by Losh does not qualify as “direct review” of her sentence, we need not reach the questions of whether “finality of the sentence” (as opposed to “finality of the conviction”) is ever the touchstone for determining retroactive effect and whether or not some methods of review of a sentence qualify as “direct review.”
argues that she did seek “direct review” of her sentence through the procedure
approved by this court in State v. Fields. Fields,
like the present case, involved a defendant whose sentence was both an upward
durational departure and a downward dispositional departure. 416 N.W.2d at 735. In that case, we faced the issue of whether a
defendant could challenge a durational departure on appeal from the denial of a
motion for sentence modification made at a probation revocation hearing. The defendant in Fields challenged the durational departure at the probation
revocation hearing, the district court reaffirmed the sentence, and the
defendant appealed the district court’s decision.
Fields nor subsequent decisions by
this court interpreting Fields have
described such a procedure as a “direct appeal” or “direct review.” Losh argues that the policy arguments
mentioned in Fields support her
position that an appeal of a sentence pursuant to Fields should be considered direct
review for retroactivity purposes. In Fields
this court stated that defendants initially placed on probation often have less
incentive to appeal the durational departure.
Losh also argues
that the district court abused its discretion in imposing an upward durational departure. Departures from the presumptive sentence are
only justified when substantial and compelling circumstances are present in the
record. State v. McIntosh, 641 N.W.2d 3, 8 (
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify the departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.
McIntosh, 641 N.W.2d at 8 (quoting Williams v. State, 361 N.W.2d 840, 844 (
determining whether to durationally depart from the guideline sentence, the
district court considers “whether the defendant’s conduct was significantly
more or less serious than that typically involved in the commission of the
crime described in the applicable statute.”
State v. Thao, 649 N.W.2d 414,
A basis for an
upward departure can be that “[t]he victim was treated with particular cruelty
for which the individual offender should be held responsible.”
Another basis for
upward departure which the state argues is present in this case is “[t]he
offender committed the crime as part of a group of three or more persons who
all actively participated in the crime.”
In light of the presence of these two aggravating factors, there is sufficient evidence in the record to justify the departure and the district court did not abuse its discretion in imposing an upward durational departure.
D I S S E N T
HANSON, Justice (dissenting).
I agree with the majority’s conclusion that Minn. Stat. § 244.11, subd. 3
(2004) is unconstitutional and does not preclude Losh’s appeal, I disagree with
the majority’s conclusion that Blakely
does not apply to this appeal. The focus
of the majority opinion on “direct review” only addresses one element of the
federal test for retroactivity and thus does not provide a complete answer to
the issue before us. Because the federal
test permits retroactivity of a new rule for the conduct of criminal
prosecutions to all cases “pending on direct review or not yet final,” Griffith v. Kentucky, 479
begin by focusing on the federal law of retroactivity. As we recognized in O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004), the scope of
the retroactivity of a new rule of federal constitutional criminal procedure is
for the United States Supreme Court to decide under the United States
we do not resolve all cases before us on direct review in light of our best
understanding of governing constitutional principles, it is difficult to see
why we should so adjudicate any case at all.
* * * In truth, the Court’s
assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of
appellate review, is quite simply an assertion that our constitutional
function is not one of adjudication but in effect of legislation.” Mackey
v. United States, 401
“final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted,
and the time for a petition for certiorari elapsed or a petition for certiorari
finally denied. See United States v. Johnson, 457
In Teague v. Lane, 489 U.S. 288, 299-310 (1989), the Court further adopted Justice Harlan’s view on the limits of finality, concluding that the new rule need not be retroactively applied to cases on “collateral review.” But the Court equated “collateral review” withhabeas corpus, quoting Justice Harlan as follows:
Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.
I take from these cases the understanding that a case is “not yet final” when the availability of appeal has not been exhausted and appellate review has not run its full course. Alternatively, I also take from these cases that “direct review” includes all forms of appellate review that are not considered collateral review. Either way, for Losh, her case was not yet final (because the appeal rights made available in Fields had notbeen exhausted or run their full course) and her case was not on collateral review at the time that Blakely was announced.
O’Meara does not lead me to a different conclusion because any comments we made in O’Meara about when a case is “final” were dicta and, to the extent they were inconsistent with Griffith and Teague, they are notcontrolling. We did say in O’Meara that the conviction became final on the date the time for direct appeal expired. 679 N.W.2d. at 340. But that comment was only fact specific to O’Meara’s case. O’Meara’s sentence had been executed, not stayed, and thus the conviction did become final when the time for direct appeal expired. And because the new rule of criminal procedure that we were dealing with in O’Meara had been announced before the time had expired for O’Meara to take direct appeal, that comment was dicta. Further, we fully recognized the broader rule of Griffith and Teague that “a case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied.” 679 N.W.2d. at 339.
For Losh, the questions under Griffith and Teague are whether, at the time Blakely was announced, (1) the availability of an appeal from Losh’s conviction had been exhausted (i.e., appellate review of that conviction had run its course), or (2) Losh’s appellate rights already had been relegated to collateral review. I would answer those questions in the negative. I would conclude that the consequence of our ruling in Fields is that appellate review of a stayed sentence is not exhausted until the time to appeal from any revocation of the stay has expired and that the appellate review of an order denying a motion to modify a stayed sentence is not collateral review.
Fields decided that a defendant in Losh’s position need not file a postconviction petition to obtain review of his sentence, but could appeal directly from the denial of his motion to modify the sentence when his stay of execution is revoked. We held that a postconviction petition was not preferable, and we concluded that a defendant could challenge his departure by a simple motion when his stay was revoked. Our ruling undoubtedly encouraged persons in Losh’s position to forego an immediate appeal and, in my view, provided assurance that they would still be able to receive a full review of their sentences upon revocation. We provided this encouragement and assurance for our own reasons, to avoid the burden on the court system of an “increase in sentencing appeals” that might turn out to be unnecessary. Our ruling in Fields necessarily implied that a defendant’s right to appellate review of a departure in a stayed sentence would not be exhausted until after revocation of the stay and that such review, when sought after revocation, would not be treated as collateral review. Accordingly, Losh’s case meets the criteria of Griffith and Teague for retroactive application of Blakely.
another way, if we apply the full text of
Griffith, the definition of finality requires not only that the
availability of appeal to our court has been exhausted, but also that the time
for a petition for certiorari to the Supreme Court has elapsed or a petition has
been denied. Griffith, 479
I address one of the underlying concerns expressed in
For all these reasons, I would reverse the court of appeals’ decision and hold that Blakely applies to Losh’s appeal of the departure made in her sentence.
ANDERSON, Paul H., Justice (dissenting).
I join in the dissent of Justice Sam Hanson.
PAGE, Justice (dissenting).
I join in the dissent of Justice Sam Hanson.
 The plea agreement between Losh and the state did not involve a joint sentencing recommendation to the district court or other sentencing agreement.
 The applicability and constitutionality of section 244.11, subd. 3, was not initially briefed or argued by the parties. Additional briefing and argument concerning this issue was ordered by this court.
 But, “this court has ‘inherent
authority to [accept] an appeal in the interests of justice even when the
filing or service requirements set forth in a rule or statutehave not been met.’” State
v. Barrett, 694 N.W.2d 783, 788 n.4 (
 “The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.” Minn. R. Crim. P. 27.03, subd. 9.
 “Clerical mistakes in judgments,
orders, or other parts of the record or errors in the record arising from
oversight or omission may be corrected by the court at any time and after such notice,
if any, as the court orders.”
 “The powers of government shall be
divided into three distinct departments: legislative, executive and
judicial. No person or persons belonging
to or constituting one of these departments shall exercise any of the powers
properly belonging to either of the others except in the instances expressly
provided in this constitution.”
 The state correctly points out, however, that Minn. R. Crim. P. 27.03, subd. 9 does not discuss any appeal from the district court’s denial of a motion for sentence modification. Fields,in effect, created a new means of appealing a sentence not explicitly provided for in the Rules of Criminal Procedure.
 This court has noted a potential
exception to this rule in stating that “[i]t may well be that the legislature,
in creating a substantive right by statute, may, as an element of that
substantive right, circumscribe the adjudication of that right more strictly
than in other cases, subject to constitutional requirements of due
process.” In re O’Rourke, 300
 Losh additionally argues that section 244.11, subd. 3, is unconstitutional on the basis that it violates her constitutional right to appellate review of her sentence. Because we invalidate the statute on the ground that it violates the separation of powers, we need not address this issue here.
 Losh argues that because the state, before the court of appeals, conceded that Blakely applied to Losh’s case, the state has waived this issue. Losh cites no authority supporting this proposition, however, and the authority she does cite indicates that the state cannot be deemed to have waived arguing this issue on appeal. See State v. Grunig, 660 N.W.2d 134, 136 (Minn. 2003) (stating waiver rule is administrative rule dictating that appellate courts will not decide issues that were not raised below). Losh raised the issue of Blakely’s retroactive effectbelow, and the court of appeals addressed it, so the waiver rule is not applicable here.
 The dissent draws a distinction between
cases that are “pending on direct review” and cases that are “final” based on
language in Griffith v. Kentucky, 479
U.S. 314 (1987). As we recognized in O’Meara, however, “pending on direct
review” and “not yet final” are two ways of saying the same thing in federal
retroactivity analysis. See Schriro v. Summerlin, 542
 In addition, the dissent argues that, under the framework of retroactivity analysis laid out by the Supreme Court, Losh should receive the benefit of Blakely in this case because: (1) when Blakely was decided Losh’s availability of appeal had not been exhausted and (2) Losh could petition to the United States Supreme Court for certiorari from this court’s judgment in this case. We initially note that the United States Supreme Court has not yet had to classify state appellate review methods (other than direct appeal from judgment of conviction) as either “direct review” or “collateral review.”
We agree that Losh was
properly pursuing a Fields appeal at
the time of Blakely’s decision and
that this court’s decision of a Fields
appeal is a final judgment from which review by writ of certiorari could be
granted. See 28 U.S.C. § 1257 (2000).
But, the availability of appeal and review by writ of certiorari are not
themselves sufficient qualities to make a form of appellate review “direct
review” for retroactivity purposes. A
postconviction petitioner has the ability to appeal a district court’s denial
of postconviction relief as well as the opportunity to petition the Supreme
Court for a writ of certiorari from a final judgment of this court affirming
denial of postconviction relief. See 28 U.S.C. § 1257 (2000); Minn.
Stat. § 590.06 (2004); see also Snow v. Ault, 238 F.3d 1033, 1035-36
(8th Cir. 2001) (holding statute of limitations for federal habeas corpus petition
was not tolled during 90-day period during which petitioner could have filed a
petition for a writ of certiorari from the denial of state postconviction
relief). A state postconviction
petition, however, does not qualify as direct review for retroactivity
 As discussed earlier, we decline to
recognize section 244.11, subd. 3, as a matter of comity based, in part, on the
policies expressed in Fields. These policies, however, do not impact our
analysis regarding whether a Fields
appeal qualifies as direct review. As a
matter of procedure, we have determined that a probationer should not be required to appeal his or her sentence
within 90 days of pronouncement of that sentence. It does not follow that this individual
should be entitled to benefit from all new rules of federal constitutional
criminal procedure which arise between the expiration of the direct appeal
period pursuant to Minn. R. Crim. P. 28.02, subd. 2(3); 28.05, subd. 1(1)
(within 90 days of judgment and sentencing), and the resolution of any eventual
appeal pursuant to Fields. Contrary to the dissent, we do not read
federal law to require a Fields
appeal to be classified as a direct review, and such a classification runs
contrary to the principle of finality underlying the federal retroactivity
framework applied by this court in O’Meara
and Houston. See
 The dissent also argues that our decision treats similarly situated defendants differently by drawing a distinction between a defendant who receives a stay of imposition and a defendant who receives a stay of execution. The dissent is referencing the court of appeals decision in State v. Beaty, 696 N.W.2d 406 (Minn. App. 2005). In Beaty, the court of appeals held that Blakely applied retroactively to a defendant when Blakely was decided during the defendant’s appeal from a probation revocation proceeding in which the district court vacated a stay of imposition and imposed a sentence. 696 N.W.2d at 408-09, 411. No petition for review was filed regarding this decision and the wisdom of Beaty is not before this court.
 Because we hold that Losh is not entitled to the retroactive application of Blakely on this appeal, we do not reach the issue of whether the rule in Blakely, if applied, would entitle Losh to relief.