A04-1002

State of Minnesota,

Respondent,

vs.

Larry Allen Moran,

Appellant.

Filed May 17, 2005

Reversed and remanded

Hudson, Judge

Freeborn County District Court

File No. KX-03-488

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Craig S. Nelson, Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, Minnesota 56007 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414; and

Stephen K. Warch, Halleland Lewis Nilan & Johnson, P.A., Special Assistant State Public Defender, 600 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, Minnesota 55402-4501 (for appellant)

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

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

HUDSON, Judge

Appellant challenges the sentence imposed for his third-degree and fifth-degree assault convictions. Appellant argues that the district court violated his Sixth Amendment right to a jury trial when it imposed an enhanced sentence under Minn. Stat. ง 609.11, subd. 4 (2002), based on the district court’s finding that appellant used a dangerous weapon during the assault. See Blakely v. Washington, 124 S. Ct. 2531 (2004). In his pro se brief, appellant argues that the evidence was insufficient to support his convictions. Appellant has waived his right to challenge the sufficiency of the evidence to sustain his convictions, but because the sentence imposed violated appellant’s rights under Blakely, we reverse and remand.

FACTS

The state charged appellant Larry Moran with aiding and abetting second-degree assault, Minn. Stat. งง 609.222, subd. 1 and 609.05 (2002); third-degree assault, Minn. Stat. ง 609.223, subd. 1 (2002); and fifth-degree assault, Minn. Stat. ง 609.224, subd. 1 (2002). The charges were based on an altercation that occurred at a bar in Albert Lea, Minnesota, on April 7, 2003, during which appellant hit the victim in the face and nose.

A jury found appellant guilty of third-degree assault and fifth-degree assault but acquitted appellant of aiding and abetting second-degree assault. The district court found that appellant used a dangerous weapon during the assault and sentenced appellant under the enhancement statute, Minn. Stat. ง 609.11 (2002). This appeal follows.

D E C I S I O N

I

Appellant argues that the district court’s imposition of an enhanced sentence based on the judge’s finding violates the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).

We review a constitutional challenge to a statute de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). In Blakely, the Supreme Court held that the sentencing 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.” Blakely, 124 S. Ct. at 2537 (emphasis omitted). In Blakely, the Court held that an upward durational departure could not be imposed based on judicial findings. Id.at 2537–38.

The presumptive sentence for third-degree assault, given appellant’s criminal history score of 1, is 15 months stayed. Minn. Sent. Guidelines IV, V. But the district court sentenced appellant to 15 months executed under Minn. Stat. ง 609.11, subd. 4 (2002). That statute provides, in relevant part,

Any defendant convicted of [a qualifying offense] in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon other than a firearm, shall be committed to the commissioner of corrections for not less than one year plus one day, nor more than the maximum sentence provided by law.

The district court explained that it determined “by a preponderance of evidence that a dangerous weapon was used in the assault.”

Appellant argues that the upward sentencing departure violates his Sixth Amendment right to a jury trial under Blakely. The state argues (1) Blakely does not apply to Minnesota’s sentencing scheme; (2) Blakely does not apply to dispositional departures; and (3) appellant has waived the Blakely issue by not raising it in the district court.

Here, the upward sentencing departure violated appellant’s Sixth Amendment right to a jury trial under Blakely. Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines. See State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (ordering additional briefing on appropriate remedy); see also State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004) (stayed pending decision in Shattuck). Moreover, this court recently held that a sentencing enhancement under Minn. Stat. ง 609.11 that is based on a judicial finding violates a defendant’s Sixth Amendment rights under Blakely. See State v. Barker, 692 N.W.2d 755, 760 (Minn. App. 2005), pet. for review filed (Minn. Mar. 28, 2005); see also Shepard v. United States, 125 S. Ct. 1254, 1262–63 (2005) (limiting a sentencing court’s right to make findings of prior convictions under the Armed Career Criminal Act). The state cites this court’s holding that dispositional departures are not affected by Blakely. See State v. Hanf, 687 N.W.2d 659 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004) (stayed pending other appeal). But Hanf involved an upward dispositional departure under the guidelines based on offender-related aggravating factors. Id. at 665–66. This case involves an upward dispositional departure under a statutory provision based on an offense-related aggravating factor. We conclude that Barker, rather than Hanf, controls in this case.

In Barker, the district court sentenced Barker under section 609.11, subdivision 5, the firearm-enhancement statute, after it found that Barker possessed a handgun at the time he possessed drugs. Id.at 757. Instead of receiving the stayed presumptive sentence, Barker received an executed sentence and an upward durational departure under the enhancement statute. Id. The Barker court concluded that Minn. Stat. ง 609.11 should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely. Id. The court explained that “[t]he mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence.” Id. Thus, Blakely requires that a finding used to increase a sentence under Minn. Stat. ง 609.11 be made by a jury if the mandatory-minimum sentence exceeds the ordinary guidelines presumptive sentence. Id. Here, because appellant’s sentence enhancement under Minn. Stat. ง 609.11 exceeded the ordinary guidelines presumptive sentence and was based on a judicially-found fact, it violated Blakely.

Finally, appellant has not waived his right to challenge his sentence under Blakely by not raising an Apprendi challenge to the district court. See State v. Fairbanks, 688 N.W.2d 333 (Minn. App. 2004) (permitting Blakely challenge on direct appeal even though the appellant did not raise an Apprendi challenge to the district court). Thus, appellant is entitled to Blakely relief. Because the supreme court is currently deciding the appropriate Blakely remedy in Shattuck, we remand for further proceedings generally.

In his pro se brief, appellant challenges the sufficiency of the evidence to support his convictions. Pro se litigants are generally held to the same standards as attorneys. Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). An assignment of error in a brief that is not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). Here, appellant has not made any legal arguments nor cited any legal authority. Because there is no obvious prejudicial error after inspection, we conclude that appellant has waived this argument.

Reversed and remanded.