This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1274

 

State of Minnesota,

Respondent,

 

vs.

 

Khang Yang,

Appellant.

 

Filed April 26, 2005

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Anoka County District Court

File No. K1-04-954

 

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

 

Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            After pleading guilty, appellant Khang Yang was sentenced to a presumptive term of 27 months in prison for first-degree burglary; 54 months for second-degree assault involving one victim, which represents a double durational departure; and 21 months for second-degree assault of another victim.  The district court ordered the 54-month assault sentence to be served concurrently with the burglary sentence, and the 21-month assault sentence to be served consecutively.

            On appeal from his sentences, appellant challenges the district court’s decision imposing an upward durational departure, based on aggravating factors, and imposing a permissive consecutive sentence, based on a finding that the crimes were “crimes against persons.”  See Minn. Sent. Guidelines II.D.2.b. (setting out “nonexclusive” list of aggravating factors which may be used as reasons for departure), II.F.2. (allowing imposition of permissive consecutive sentences for “[m]ultiple current felony convictions for crimes against persons”).  He argues that these decisions, which were based on findings made by the district court and not by a jury, are unconstitutional under Blakely  v. Washington, 124 S. Ct. 2531 (2004).  Because recent decisions from this court have decided these issues, we affirm the decision to impose consecutive sentences but reverse the decision to depart based on aggravating factors and remand for resentencing under Blakely.

 

D E C I S I O N

            The decision to depart from the presumptive sentence generally rests within the discretion of the district court and will not be disturbed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Application of Blakely, however, presents a constitutional issue that this court reviews de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            In Blakely, the Supreme Court held that the greatest sentence a judge can impose based on judicial findings is “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. at 2537.  Blakely refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 1248 (2000), that the Sixth Amendment requires that “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.”  Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. 2362-63).  Following Blakely, a defendant has a Sixth Amendment right to a jury trial on any fact, except the fact of a prior conviction, which increases the sentence above this maximum.  Id. at 2543.

            Appellant first challenges the district court’s decision to impose an upward durational departure.  This court has held that Blakely precludes an upward durational departure based on aggravating factors that are found by a sentencing court rather than by a jury.  State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  While it is undisputed that Blakely applies to upward durational departures, the state nevertheless argues that resentencing is not required here because appellant’s guilty plea contains admissions to support the court’s findings on the aggravated factors, which included appellant treating one of the victims with particular cruelty, violating her zone of privacy, and committing an assault that was more serious than the typical second-degree assault.

            This court, however, recently held that a defendant’s admissions to aggravating factors during a plea hearing fail to satisfy the requirements of Blakely, when a waiver of the right to a jury determination does not accompany such admissions.  State v. Senske, 692 N.W.2d 743, 746 (Minn. App. 2005), review filed (Minn. Mar. 22, 2005).  Thus, even if appellant’s guilty plea can be read to include admissions to support findings on the aggravating factors, his plea did not include a waiver of his right to a jury trial on these sentencing factors.  We therefore reverse the district court’s decision to depart and remand for resentencing.  See Hagen, 609 N.W.2d at 160 (reversing and remanding for resentencing in light of Blakely).

            Appellant also challenges the district court’s decision to impose a permissive consecutive sentence based on its finding that the two second-degree assault offenses, which involved two different victims, were “crimes against persons” under Minn. Sent. Guidelines II.F.2.  He argues that because the issue of whether the offenses were crimes against persons was determined by the district court and not by a jury, Blakely applies.  While appellant’s arguments are persuasive, this court recently held that Blakely was not implicated by permissive consecutive sentencing based on a judicial finding that the offenses were crimes against persons.  Senske, 692 N.W.2d at 748-79.  The district court’s decision to impose consecutive sentences thus did not violate appellant’s Sixth Amendment right to a jury trial.

            We therefore affirm the district court’s decision to impose consecutive sentences, but reverse its decision to depart based on aggravating factors, and remand for resentencing under Blakely.

            Affirmed in part, reversed in part, and remanded.