This opinion will be unpublished and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

A04-1358

 

State of Minnesota,

Respondent,

 

vs.

 

Lucas J. Rettke,

Appellant.

 

Filed May 3, 2005

Reversed and remanded

Lansing, Judge

 

Crow Wing County District Court

File No. KX-02-2833

 

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

 

Donald F. Ryan, Crow Wing County Attorney, Janine L. LePage, Assistant County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John Stuart, State Public Defender, Margaret Millington, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this direct appeal from sentencing for third-degree burglary, Lucas Rettke challenges the district court’s upward durational departure under the career-offender statute.  Because Rettke did not waive his right to a jury determination that his offense was committed as part of a pattern of criminal conduct, we reverse and remand for sentencing consistent with Blakely v. Washington, 124 S. Ct. 2531 (2004).

F A C T S

            Lucas Rettke pleaded guilty to second-degree burglary under a plea agreement that provided for a thirty-six-month sentence.  The agreement was negotiated with the mutual understanding that Rettke had a criminal-history score of four, which would place the thirty-six-month sentence at the low end of the guidelines presumptive range.  During the presentence investigation, the investigator determined that Rettke’s criminal-history score was six rather than four and that the presumptive sentence was between forty-six and fifty months.  To salvage the plea agreement, the prosecution and the defense agreed to a procedure whereby Rettke would withdraw his plea, the prosecutor would amend the charge to third-degree burglary, and Rettke would plead to the amended charge which resulted in a presumptive sentence of thirty months.

            The state requested that the court impose the agreed-on sentence of thirty-six months.  Rettke initially objected to receiving more than thirty months, but withdrew his objection when the prosecutor responded that, without an agreement on a thirty-six month sentence, he would argue for imposition of the sixty-month statutory maximum.  Relying on the career-offender statute, the district court imposed a sentence of thirty-six months, an upward durational departure of six months from the presumptive guidelines’ sentence.    

            The district court determined that the departure was appropriate because Rettke and the prosecutor had agreed to the thirty-six-month sentence, Rettke had five or more prior felony convictions, and the current offense was a felony that was committed as part of a pattern of criminal conduct.  Rettke appeals, arguing that the upward durational departure was based on judicial findings and was therefore unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004).

D E C I S I O N

            A sentence that exceeds the statutory maximum violates a defendant’s Sixth Amendment right to a jury trial if it is based on judicially determined aggravating factors other than the fact of a prior conviction.  Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004).  For Blakely purposes, the statutory maximum sentence is the greatest sentence a judge may impose solely on the basis of the facts reflected in the jury’s verdict or admitted by the defendant, not the maximum sentence a judge may impose after finding additional facts.  Id.  A defendant therefore has a Sixth Amendment right to a jury determination of any fact that increases the sentence above this maximum.  Id. at 2543.  Because a challenge to a sentence under Blakely presents a constitutional issue, we review the challenge de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            Minnesota’s career-offender statute permits an upward departure from the presumptive sentence upon findings that the defendant has five or more prior felony convictions and that the present offense was part of a pattern of criminal conduct.  Minn. Stat. § 609.1095, subd. 4 (2002).  Because sentencing under the career-offender statute requires a factual finding that the current offense is committed as part of a pattern of criminal conduct, an upward durational departure based on this statute requires a jury determination, or stipulation by the defendant, on the aggravating facts supporting departure.  See State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (applying Blakely to statutorily permitted upward durational departure from sentencing guidelines); see also State v. Mitchell, 687 N.W.2d 393, 398-400 (Minn. App. 2004) (applying Blakely to findings on “pattern of criminal conduct” under career-offender statute), review granted (Minn. Dec. 22, 2004).

            Rettke did not stipulate that his current offense of third-degree burglary constituted a pattern of criminal conduct that justified departure under the career-offender statute.  Because the factual basis for Rettke’s sentencing departure was not part of the stipulated facts or the result of a jury determination, the upward durational departure constitutes judicial fact-finding, which violates Rettke’s right to a jury trial. 

            The state argues that Rettke waived his Sixth Amendment right to a jury determination of the facts necessary to support the upward departure because he agreed to accept the thirty-six-month sentence to avoid a prosecutorial argument for imposition of the  statutory maximum.  A waiver of the constitutional right to trial by jury must be knowing, voluntary, and intelligent.  Hagen, 690 N.W.2d at 158-59 (limiting validity of stipulation on aggravating factor to knowing waiver of jury determination of sentencing issue).  To permit an upward departure on judicially determined facts, a defendant must expressly waive his right to a jury determination of the sentencing factors that support the departure.  See State v. Fairbanks, 688 N.W.2d 333, 336 (Minn. App. 2004) (concluding that waiver of right to jury trial does not waive right to jury determination of facts supporting departure), review granted (Minn. Jan. 20, 2005).

            Rettke’s acceptance of the thirty-six-month sentence does not constitute a knowing or express waiver of his constitutional right to a jury determination on whether his current offense was committed as part of a pattern of criminal conduct.  Because the record does not establish a knowing waiver of his right to a jury determination of the factors that permit departure under the career-offender statute, Rettke did not waive his Sixth Amendment right, and we therefore reverse and remand for resentencing consistent with Blakely and Shattuck.

            Reversed and remanded.