A03-1455

State of Minnesota,

Respondent,

vs.

Mario F. Mancini,

Appellant.

Filed April 12, 2005

Affirmed

Willis, Judge

Ramsey County District Court

File Nos. K0-02-4361 & K2-02-4314

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Susan Gaertner, Ramsey County Attorney, Colleen Timmer, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant pleaded guilty to second- and third-degree criminal-sexual-conduct. He challenges his sentences, arguing that the district court violated his Sixth Amendment right to a jury by including a custody-status point in his criminal-history score and by imposing consecutive sentences after finding that his convictions were for “crimes against persons.” Because we find that the district court did not err, we affirm.

FACTS

In November 2002, appellant Mario Mancini was charged with two counts of third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b), (c) (2002). The subdivision 1(c) count was later amended to a charge of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2002). Mancini pleaded guilty to both charges. In accordance with the Minnesota Sentencing Guidelines, the district court sentenced him to 38 months for the third-degree criminal-sexual-conduct conviction and a consecutive 90 months for the second-degree criminal-sexual-conduct conviction. The mandatory minimum sentence for a conviction under Minn. Stat. § 609.343, subd. 1(h), is 90 months. Minn. Stat. § 609.343, subd. 2(b) (2002).

Mancini challenged his sentence on appeal, arguing that the application of the mandatory minimum sentence in Minn. Stat. § 609.343, subd. 2(b), violated his plea agreement. We affirmed the district court’s sentencing, but the Minnesota Supreme Court vacated the opinion and remanded for reconsideration in light of Blakely v. Washington, 124 S. Ct. 2531 (2004). State v. Mancini, No. A03-1455 (Minn. App. July 27, 2004), review granted and remanded (Minn. Oct. 19, 2004).

D E C I S I O N

Mancini argues that his sentence is unconstitutional because it violates his Sixth Amendment rights as described in Blakely v. Washington. In Blakely, the United States Supreme Court held that a judge 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.” 124 S. Ct. 2531, 2537 (2004). A criminal defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases his sentence beyond the statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000); see also Blakely, 124 S. Ct. at 2536.

We applied Blakely to the Minnesota Sentencing Guidelines in State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1] In Conger, we held that findings supporting an upward departure from the presumptive sentence of the sentencing guidelines must comply with the Sixth Amendment as applied in Blakely and therefore concluded that a jury must determine any fact that increases a sentence beyond the presumptive sentence. Id.

Mancini argues that the district court violated his Sixth Amendment rights by including a custody-status point in his criminal-history score when it calculated the presumptive sentence for his conviction of third-degree criminal sexual conduct. The district court included a custody-status point because it found that Mancini was on probation when he committed the offense. Mancini argues that Blakely requires a jury determination that he was on probation because it is a fact that increases his sentence.

In State v. Brooks, we held that Blakely does not require a jury finding to establish custody-status points for the determination of a criminal-history score. 690 N.W.2d 160, 163–64 (Minn. App. 2004), review granted (Minn. Mar. 15, 2005). We noted that “[l]ike the fact of a prior conviction, custody status points are established by the court’s own records” and concluded that because the custody-status-point determination is analogous to the Blakely exception for facts of prior convictions, “no purpose would be served by requiring that a jury make a finding . . . regarding the existence of a custody status point.” Id.at 163.

Here, the district court did not err by including a custody-status point in Mancini’s criminal-history score and imposing the presumptive sentence for his third-degree criminal-sexual-conduct conviction. Because a finding of a custody-status point fits within Blakely’s exception for facts of prior convictions, we conclude that the district court did not violate Mancini’s Sixth Amendment rights as described in Blakely.

Mancini also argues that the district court violated his Sixth Amendment rights by imposing consecutive sentences rather than concurrent sentences. The sentencing guidelines presume that sentences for multiple current convictions will be concurrent. Minn. Sent. Guidelines II.F. But the district court may impose consecutive sentences when a defendant has “[m]ultiple current felony convictions for crimes against persons.” Id. II.F.2. Because the imposition of a permissive consecutive sentence increases the length of the total sentence, Mancini argues that Blakely requires a jury determination that the convictions are for “crimes against persons.”

We addressed this issue in State v. Senske, 692 N.W.2d 743 (Minn. App. 2005). We observed that “[c]onsecutive sentencing involves separate punishments for discrete crimes.” Id. at 749. Because neither Apprendi nor Blakely requires a jury to determinewhether imposition of multiple sentences is permissible, a jury need not determine the relationship between multiple sentences. Id. We concluded that Blakely does not apply to permissive consecutive sentencing for convictions for “crimes against persons.” Id.

Here, the district court imposed permissive consecutive sentences because Mancini’s offenses were crimes against persons. The statutes under which Mancini was convicted define criminal sexual conduct as “sexual contact with another person” and “sexual penetration with another person” under described circumstances. Minn. Stat. §§ 609.343, subd. 1, .344, subd. 1 (2002). These offenses are crimes against persons as a matter of law. We conclude that the district court did not violate Mancini’s Sixth Amendment right to a jury as described in Blakely by finding that his offenses were “crimes against persons” and imposing consecutive sentences.

Affirmed.

[1] The supreme court granted review in Conger, but stayed further processing of that matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004). By order filed earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury violated the defendant’s right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam). The court indicated that a full opinion would follow and directed supplemental briefing addressing the appropriate remedy. Id.