This opinion will be unpublished and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

A04-1435

 

 

State of Minnesota,

Respondent,

 

vs.

 

Terrell A. Berry,

Appellant.

 

Filed May 3, 2005

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

Hennepin County District Court

File No. 03061085

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court sentenced Terrell Berry under the dangerous-offender statute to consecutive upward durational departures on two counts of first-degree burglary.  Berry appeals, arguing that the consecutive sentences and the upward durational departures are constitutionally invalid under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because this court has previously held that Blakely does not apply to consecutive sentences, we affirm the consecutive sentencing.  But because the durational departures are based on judicially determined facts in violation of Berry’s right to a jury trial under Blakely, we reverse and remand for determination of the individual sentences.

F A C T S

            In March 2003, Terrell Berry, posing as a female, entered the apartment of an eighty-one-year-old blind man, claiming to be someone from the office.  Berry asked the victim for money and was given $2.  He then went into the victim’s bedroom and took $420.  Berry returned to the apartment in July 2003 and stole some checks he later cashed.

            Berry pleaded guilty to two counts of first-degree burglary.  He was sentenced under the dangerous-offender statute to consecutive sentences of 120 months on the first count, which is a double durational departure from the presumptive sentence, and 60 months on the second count, which is an upward departure from the 21-month presumptive sentence.  The court based the departures on findings that Berry was a danger to public safety, had a high-frequency rate of offending, and had a long history of criminal activity. The court also relied on aggravating factors that would justify a departure under the sentencing guidelines, including the victim’s vulnerability and the particular cruelty of the crime.  These findings were neither admitted by Berry nor found by a jury.  Berry appealed, contending that the sentences rely on judicially determined facts and are therefore constitutionally invalid under Blakely v. Washington, 124 S. Ct. 2531 (2004).

D E C I S I O N

I

Berry argues that the upward durational departures the district court imposed on each count are unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004), because they exceed the statutory maximum and are based on judicially determined aggravating facts that were neither admitted by him nor found by a jury.  This court reviews constitutional issues de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

A sentence violates the defendant’s Sixth Amendment right to a jury trial when it exceeds the statutory maximum and is based on judicially determined aggravating facts, other than the fact of a prior conviction, that were neither admitted by the defendant nor found by a jury.  Blakely, 124 S. Ct. at 2536-37.  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. at 2537.

The Minnesota Supreme Court has issued a per curiam order, pending release of a full opinion, holding that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).  In Shattuck, the court reversed the imposition of an upward durational departure under the repeat sex-offender statute, Minn. Stat. § 609.109, subd. 4 (2002), reasoning that the departure was based on aggravating factors not considered by a jury and that it therefore violated the defendant’s Sixth Amendment right to a jury trial under Blakely.  Shattuck, 689 N.W.2d at 786.

This court has similarly held that the statutory findings required for a durational departure under the dangerous-offender statute must be made by a jury.  State v. Fairbanks, 688 N.W.2d 333, 336 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005) (stayed pending disposition in Shattuck).  Fairbanksis consistent with Shattuck.

The district court sentenced Berry under the dangerous-offender statute to a double durational departure from the presumptive sentence on both counts.  The dangerous-offender statute provides that when imprisonment is the presumptive sentence and the sentencing judge is imposing an executed sentence, the judge may depart durationally up to the statutory maximum sentence, provided the offender was at least eighteen years old at the time the felony was committed, and

(1)        the court determines . . . that the offender has two or more prior convictions for violent crimes; and

 

(2)        the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

 

(i)     the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or

(ii)    the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the Sentencing Guidelines.

 

Minn. Stat. § 609.1095, subd. 2 (2002). 

The district court based its dangerous-offender departure on judicial findings that Berry was a danger to public safety, had a high-frequency rate of offending, and had a long criminal history.  The court also relied on judicial findings that the victim was vulnerable and that the crime was particularly cruel, both aggravating factors that would justify a departure under the sentencing guidelines.  Minn. Sent. Guidelines II.D.2.b (listing vulnerable victim and cruelty as aggravating factors).  Because Berry’s sentence exceeds the maximum sentence the district court could impose solely on the basis of the facts reflected in his plea and relies on facts that were neither admitted by Berry nor found by a jury, the sentence deprived Berry of his right to a jury trial under Blakely.

The state argues that Berry waived his right to raise a Blakely challenge on appeal by failing to object in the district court.  But a defendant does not waive his right to a jury trial on the aggravating sentencing factors merely by failing to object to his sentence; instead, because a constitutional right is involved, the waiver must be knowing, voluntary, and intelligent.  State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004) (stating that because “[t]he effect of a defendant’s admission to an aggravating factor is to waive the defendant’s constitutional right to a jury trial on the sentencing issue,” admission must be accompanied by full waiver of right to jury trial on aggravating factors); Fairbanks, 688 N.W.2d at 336-37 (holding that by agreeing to trial on stipulated facts, defendant did not waive his right to have findings necessary to support upward sentencing departure made by jury).  The record in this case does not establish that Berry knowingly and intelligently waived his right to have a jury make the findings necessary to support an upward departure from the presumptive sentence.

Finally, relying on State v. Henderson, No. A03-1898, 2004 WL 1925395, at *1 (Minn. App. Aug. 31, 2004), review granted (Minn. Nov. 23, 2004), the state argues that Blakely does not apply to a sentence under the dangerous-offender statute.  In Henderson, this court upheld an upward durational departure under the career-offender statute even though the departure was based on the sentencing court’s finding that defendant had engaged in a “pattern of criminal conduct.”  Id. at *1-*2.  The court reasoned that a jury finding on the pattern-of-criminal-conduct factor was not required because the defendant’s prior criminal record implied a pattern of criminal conduct.  Id. at *2.  But Hendersonhas been implicitly overruled by Shattuck.  See Shattuck, 689 N.W.2d at 786 (invalidating upward durational departure under repeat sex-offender statute because departure was based on judicially determined aggravating factors not admitted by defendant or considered by jury). 

In this case, as in Fairbanks, although the facts Berry admitted in his guilty plea permit a plain finding of past criminal behavior, they do not permit a finding that he was a danger to public safety or that he had a high-frequency rate of offending and a long history of criminal activity.  Nor do they permit findings on the additional aggravating factors on which the district court based the departure, including the vulnerability of the victim and the particular cruelty with which Berry committed the crime.  Accordingly, the upward durational departures are constitutionally invalid under Blakely and must be reversed. 

II

            Berry also argues that because his offenses were not “crimes against a person” for purposes of permissive consecutive sentencing under the guidelines, the imposition of consecutive sentences violates his Sixth Amendment right to have the jury determine the facts supporting the enhancement of his sentence.  See Minn. Sent. Guidelines II.F (providing that “[a] current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not expired or been discharged”).

            But this court has held that Blakely does not apply to consecutive sentences imposed for separate crimes, in part because the jury does not determine the permissibility of multiple sentences under the Double Jeopardy Clause or Minn. Stat. § 609.035, subd. 1 (2002).  See State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005) (holding that when sentencing on multiple counts, district court may impose consecutive sentences based on judicial finding that offenses were “crimes against persons” without violating Blakely); see also O'Meara v. State, 679 N.W.2d 334, 341 (Minn. 2004) (reducing consecutive terms to 25 years each under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), even though combined sentenced would have violated 25-year statutory maximum).  The Senske court noted that the holdings in Blakely and Apprendi are limited to the enhancement of a sentence for a single crime and do not therefore extend to consecutive sentencing, which determines the relationship between two or more sentences separately imposed for different offenses.  Senske, 692 N.W.2d at 747-48.

            Berry was sentenced to consecutive sentences for two separate offenses.  Because the consecutive sentences were for different offenses, the district court did not violate Berry’s Sixth Amendment right to a jury trial under Blakely by imposing consecutive sentences based on judicial findings.  We therefore affirm the district court’s decision to make Berry’s sentences consecutive. 

Affirmed in part, reversed in part, and remanded.