This opinion will be unpublished and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

A04-1100

 

 

State of Minnesota,

Respondent,

 

vs.

 

Victor Gonzales-Antiquas,

Appellant.

 

 

Filed June 14, 2005

Reversed and remanded

Klaphake, Judge

 

Hennepin County District Court

File No. 03084289

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Victor Gonzales-Antiquas appeals from the sentence imposed for his conviction of possession of burglary tools, arguing that the district court improperly sentenced him to an upward durational departure under the career-offender statute.

            Because the durational departure was based on judicial, rather than jury, findings, we conclude that appellant’s right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004), was violated.  We therefore reverse appellant’s sentence and remand for resentencing.

D E C I S I O N

            The United States Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), that “[o]ther than the fact of a prior conviction, 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 2537, made it clear that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  (Italics added.) 

            The Minnesota Supreme Court held that Apprendi/Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 689 N.W.2d 785 (Minn. Dec. 16, 2004) (per curiam order holding that imposition of upward durational departure based on aggravating factors not considered by jury was violation of defendant’s rights under Blakely, and indicating that full opinion will follow).  Thus, in this context, “statutory maximum” means the presumptive sentence under the state sentencing guidelines.

            The district court here sentenced appellant to an upward durational departure based on the career offender statute, which permits a judge to impose

an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

 

Minn. Stat. § 609.1095, subd. 4 (2004).  In State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004),[1]this court held that the determination of whether a defendant’s criminal record creates a pattern of criminal conduct is one that must be made by a jury, unless there is a jury waiver by the defendant.

            The state argues that appellant waived his right to challenge his sentence under Apprendi/Blakely by failing to raise the issue to the district court.  A defendant may base an appeal on a decision announcing a new rule of federal constitutional criminal procedure if his or her conviction is not yet final.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  A “new rule” is one that is not dictated by precedent, or one that imposes a new obligation on the state or federal government or one that “breaks new ground.”  Id. (quotation omitted).  We have previously concluded that Blakely represents a new rule of law.  State v. Saue, 688 N.W.2d 337, 344 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).[2]  Appellant has raised the Apprendi/Blakely issue in this direct appeal; his conviction is not final and he is permitted to ask for application of the principles of Apprendi/Blakely to his sentence.

            In his pro se brief, appellant maintains that he is innocent of the crime, a claim that we interpret as a challenge to the sufficiency of the evidence.  Our review of a claim of insufficiency of the evidence is limited to a thorough analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume that the jury, which has the exclusive function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Based on the record before us, there is sufficient evidence to sustain the verdict, despite appellant’s claim of innocence.

            We therefore reverse appellant’s sentence and remand this matter to the district court for resentencing. 

            Reversed and remanded.