This opinion will be unpublished and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

A04-1587

 

 

State of Minnesota,

Respondent,

 

vs.

 

Andrew Charles Bleed,

Appellant.

 

 

Filed April 26, 2005

Reversed and remanded

Halbrooks, Judge

 

 

Wabasha County District Court

File Nos. K1-03-665, K7-03-721

 

 

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

 

James C. Nordstrom, Wabasha County Attorney, Karrie S. Kelly, Assistant County Attorney, Wabasha County Courthouse, 625 Jefferson Avenue, Wabasha, MN 55981 (for respondent)

 

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

 

 

            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his sentence for a second-degree controlled-substance offense, arguing that the upward durational departure based on aggravating factors found by the court violated appellant’s right to a jury trial under Blakely v. Washington.  Because appellant did not personally and explicitly waive his right to a jury determination of the presence of aggravating sentencing factors, we reverse and remand for resentencing.

FACTS

            The facts in this case are undisputed.  On August 19, 2003, law-enforcement officers executed a search warrant at the residence of appellant Andrew Bleed.  The residence was a modified bus located on land owned by appellant’s mother.  Inside the bus, the officers found Christopher Galbreath, an acquaintance of appellant, as well as evidence of the manufacture of methamphetamine.  In a statement to police, Galbreath denied knowing anything about the manufacture of methamphetamine or the presence of methamphetamine on the bus, but admitted to using the drug. 

            Based on the evidence seized, the state charged appellant with two counts of first-degree controlled-substance crime—one count of manufacture of methamphetamine in violation of Minn. Stat. § 152.021, subd. 2a(a) (Supp. 2003), and one count of possession of chemical reagents or precursors with the intent to manufacture methamphetamine in violation of Minn. Stat. § 152.021, subd. 2a(b) (Supp. 2003)—and one count of fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1), 3(a) (2002).  On March 9, 2004, appellant pleaded guilty to an amended count of second-degree controlled-substance crime.  The parties agreed that appellant could argue for a dispositional departure, and the state could argue for an upward durational departure, capped at 68 months.

            At the plea hearing, appellant stated that he understood the plea agreement and acknowledged that he wished to plead guilty to one count of second-degree sale of methamphetamine in violation of Minn. Stat. § 152.022, subd. 1(1) (2002).  The court then examined appellant to ascertain whether he understood the consequences of his plea.  Appellant confirmed that he did.  Appellant also admitted that he possessed more than three grams of methamphetamine and that he “gave”[1] methamphetamine to one of his companions. 

            A presentence investigation determined appellant’s presumptive sentence, based on a severity level of eight with zero criminal-history points, to be 48 months in prison.  The state subsequently moved for an upward departure, arguing that the appellant’s crime constituted a major controlled-substance offense and that he committed the crime as part of a group of three or more active participants.  See Minn. Sent. Guidelines II.D.2.b(5)(c)-(d), (f), (10).

            Appellant did not testify at the sentencing hearing.  His only statement, when asked by the district court if he had anything to say, was “No, your Honor.  I am at the mercy of the [c]ourt.”  The court found evidence that appellant’s actions constituted a major controlled-substance offense, finding specifically that appellant manufactured methamphetamine as part of a group of three or more active participants, that he provided some of the methamphetamine he manufactured to others, and that he possessed a firearm during the commission of the offense.[2]  Minn. Sent. Guidelines II.D.2.b(5)(c)-(d), (10).  The district court then sentenced appellant to 68 months in prison, a 20-month upward durational departure from the presumptive sentence.  This appeal follows.

D E C I S I O N

            The decision to depart from a presumptive sentence rests with the district court and will generally not be disturbed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But the Blakely argument raises a constitutional question, which this court reviews de novo.  See State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).

            In Blakely, the Supreme Court held that the greatest sentence that a judge may impose 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.”  Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). 

            We begin by addressing the applicability of Blakely to appellant’s case.  The Minnesota Supreme Court has held that “if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.”  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  “[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.”  Id.

Here, appellant was sentenced on May 25, 2004.  Blakely was decided on June 24, well before appellant’s time to appeal his sentence was exhausted.  See Minn. R. Crim. P. 28.05, subd. 1(1) (stating that a sentencing appeal must be filed within 90 days of the date of judgment and sentencing).  Because Blakely established a new rule of constitutional criminal procedure and because appellant’s case was “pending” at the time of the decision, he is entitled to the benefit of Blakely.  See State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (recognizing Blakely as a new rule of law), review granted (Minn. Jan. 20, 2005).

Blakely applies to upward durational departures under the sentencing guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[3]  We have held that an upward durational departure may not be based on an “admission” by a defendant unless that “admission” is accompanied by the defendant’s waiver of his or her right to a jury trial on the aggravating factor.  State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004).  Such a waiver “must be knowing, voluntary, and intelligent.”  Id. at 158.  As we have recently held, a knowing, voluntary, and intelligent waiver requires that a defendant “personally and explicitly” waive his or her fundamental Sixth Amendment rights.  State v. Thompson, ___ N.W.2d ___, ___, 2005 WL 757939, at *5 (Minn. App. Apr. 5, 2005) (emphasis omitted).  This requires more than simply a general waiver of one’s right to a jury trial regarding facts justifying an upward durational departure; rather, the defendant must

acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.  The agreement and waiver shall be in writing or orally on the record.

 

Id. at *4 (emphasis omitted) (quoting Minn. R. Crim. P. 26.01, subd. 3).

 

            Here, the state argues that “appellant’s plea of guilty was knowingly, voluntarily and intelligently made” and that he “understood the sentencing consequences” of such a plea.  It may be true that appellant’s guilty plea was “knowingly, voluntarily and intelligently made,” but our concern here is whether his alleged waiver of his right to a jury determination of the presence of factors justifying an upward departure was so made.  The record indicates that it was not.

            We have recently held, in the context of a trial on stipulated facts, that a defendant’s waiver of his or her right to a jury trial does not extend to the sentencing proceeding.  Fairbanks, 688 N.W.2d at 336; see also State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004) (holding that waiver of right to jury trial on criminal charge did not constitute waiver for purposes of sentencing enhancement under statute mandating increased sentences for certain patterned and predatory sex offenders, and remanding for sentencing not inconsistent with Blakely).  Likewise, a plea of guilty does not, in and of itself, indicate a defendant’s acquiescence to an upward durational departure in sentencing.  The state suggests that because appellant agreed in the plea agreement that the state was free to seek an upward departure, appellant has agreed to be bound by that departure.  In support of this proposition, the state cites Givens, 544 N.W.2d at 774.  But in Givens, unlike here, the defendant “agree[d] to a departure as part of a plea bargain.”[4]  Id. at 777.  No such agreement exists here; thus Givens is inapposite.[5] 

Appellant’s waiver of his right to a jury trial on the question of guilt or innocence is not a personal and explicit waiver of his right to a jury determination of the presence of aggravating sentencing factors.  To hold otherwise would run counter to the spirit of Blakely.  Because the record is not sufficient to demonstrate that appellant knowingly, voluntarily, and intelligently waived his fundamental Sixth Amendment rights with respect to sentencing, the upward durational departure violated his right to a jury trial under Blakely.  Accordingly the sentence must be reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.

We note that appellant “is not automatically entitled on remand to a reduction of [his] sentence to the presumptive sentence.  Because the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated, it ‘must be determined in the first instance by the district court.’”  Thompson, ___ N.W.2d at ___, 2005 WL 757939, at *5 (quoting Hagen, 690 N.W.2d at 160).

            Reversed and remanded.