This opinion will be unpublished and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
A04-1521
State of Minnesota,
Respondent,
vs.
Obadyah Habakkuk Israel,
Appellant.
Filed June 7, 2005
Affirmed in part,
reversed in part, and remanded
Dietzen, Judge
Ramsey County
District Court
File No. K1-04-114
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill,
Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN
55102 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant State Public Defender, 2221
University Avenue Southeast, Suite 425, Minneapolis,
MN 55414
(for appellant)
Considered and decided by Hudson,
Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
DIETZEN, Judge
Following his
guilty plea to two counts of first-degree aggravated robbery, appellant was
sentenced by the district court to an executed concurrent sentence of 150
months for each count, which is an upward durational departure from the
presumptive sentence. Appellant
challenges the sentence imposed on the basis that the use of a custody-status
point to determine the presumptive sentence, and the upward departure from the
presumptive sentence, both violate his Sixth Amendment right to a jury trial as
announced in Blakely v. Washington, 124 S. Ct. 2531 (2004). Because custody points were used to calculate
appellant’s criminal-history score and his presumptive sentence, we affirm that
portion of the sentence. Since the
upward durational departure of his presumptive sentence was based on
appellant’s admissions to aggravating factors and appellant did not waive his
right to a jury determination of such factors, we reverse and remand that
portion of the sentence.
FACTS
Appellant
Obadyah Habukkuk Israel, a/k/a Andre Donnelle Barnes, was charged with one
count of second-degree attempted murder in violation of Minn. Stat.
§ 609.19, subd. 1(1) (2002), and two counts of first-degree aggravated
robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002). As part of a plea agreement, appellant
pleaded guilty to both counts of first-degree aggravated robbery, and the state
dismissed the attempted-murder charge. At
the plea hearing, appellant admitted that on January 8, 2004, he approached a
woman at a bus stop in St. Paul. When she refused to give him her purse, he
stabbed her in the abdomen with his knife and then stole her purse. Appellant also admitted that a short time later
he approached another woman on the street and asked for her purse. Appellant and the woman struggled over the
purse until appellant threatened her with the knife, and she gave her purse to
him.
At the sentencing hearing, the
parties agreed that appellant’s sentence should be 150 months for each count,
an upward durational departure from the presumptive guideline sentences. The district court followed the terms of
the plea agreement and sentenced appellant to 150 months in prison for each count
of aggravated robbery, to be served concurrently. The district court stated that the upward
durational departure was justified because appellant agreed to the plea, admitted
that the first victim received substantial injuries, and had a history of
committing violent crimes.
This appeal follows.
D E C I S I O
N
Custody
Status Points
Appellant
argues that under Blakely v. Washington,
124 S. Ct. 2531 (2004), he has the right to
have a jury determine his custody-status points, which affect the length of his
presumptive sentence under the Minnesota Sentencing Guidelines. Minn.
Sent. Guidelines II.B. Appellant argues
that because the assignment of a custody-status point is a judicial finding
that increases the presumptive sentence, Blakely
requires the issue of custody-status points to be determined by a jury.
In
Blakely, the Court held that a
defendant has a Sixth Amendment right to have the prosecutor prove to the jury “all
facts legally essential to the punishment” except for the fact of a prior
conviction. Id.at 2536, 2543. The Court explained that the maximum sentence
a district court may impose is the maximum sentence supported solely by the “facts
reflected in the jury verdict or admitted by the defendant.” Id. at 2537. Because appellant’s challenge to his sentence
raises a constitutional issue, we review the challenge de novo. State
v. Wright, 588 N.W.2d 166, 168 (Minn. App.
1998), review denied (Minn. Feb. 24, 1999).
Custody-status
points, along with the defendant’s prior criminal record, are used to calculate
the defendant’s criminal-history score. Minn. Sent. Guidelines
II.B. We have previously determined that
the calculation of a defendant’s criminal-history score, including custody-status
points, “is analogous to Blakely’s
exception for the ‘fact of a prior conviction.’” State
v. Brooks, 690 N.W.2d 160, 163 (Minn. App.
2004), (quoting Blakely, 124 S. Ct.
at 2536), review granted (Minn. Mar. 15, 2005). In Brooks,
we concluded that a defendant does not have the right to a jury determination
of the defendant’s criminal-history score or custody-status points. Id. at
163-64. Custody-status points are
established by court records and are based on the number of prior convictions a
defendant has. Id.
at 163. Moreover, custody-status points
are necessary to determine a defendant’s presumptive sentence; they do not
increase a defendant’s presumptive sentence.
Id.
Therefore, Blakely does not
require a jury to determine appellant’s custody-status points, and the district
court’s determination of appellant’s custody-status points did not violate appellant’s
rights.
Upward
Durational Departure
Appellant
also argues the upward durational departure of his sentence violates the holding
in Blakely. We have concluded that Blakely applies to upward durational departures from the Minnesota
Sentencing Guidelines. State v. Conger, 687 N.W.2d 639, 644-45
(Minn. App. 2004), review granted (Minn. Dec. 22, 2004).
In
State v. Hagen, we addressed the
“admission exception” to Blakely. 690 N.W.2d 155 (Minn. App. 2004). In Hagen, the
defendant pleaded guilty to first-degree criminal sexual conduct, admitting
that he sexually penetrated the 13-year-old victim. Id. at 156-57. At the sentencing hearing, the defense
attorney admitted that the defendant “[did] not deny” there were some “very
aggravating factors.” Id.
at 157. But because the defendant “was
not informed that he had a right to a jury determination on any fact used to
support an upward sentencing departure,” we concluded that the district court’s
imposition of an upward durational departure violated the defendant’s right to
a jury trial. Id.
at 159-60. We held that because a
defendant’s admission to an aggravating factor
waives his or her constitutional right to a jury trial on the sentencing issue,
“[a]n upward durational departure under the Minnesota Sentencing Guidelines may
not be based on an ‘admission’ by the defendant, under Blakely v. Washington, unless the ‘admission’ to an aggravating
factor is accompanied by the defendant’s waiver of his or her right to a jury
trial on the aggravating factor.” Id.
at 156, 158 (citation omitted).
Here, at the time he pleaded guilty,
appellant admitted that he robbed two women and stabbed one of them. But his admission cannot be used to support
an upward durational sentencing departure unless he also waived his right to a
jury determination of aggravating factors.
See id. at 156. Appellant was not informed that he had a right
to have a jury determine any fact used to support an upward durational
sentencing departure. He could not waive
the right to such a jury determination without being fully informed of this
right. See id. at 158-59.
Therefore, appellant’s sentence violates his right to a jury trial under
Blakely, and we reverse and remand
for resentencing consistent with Blakely.
Affirmed
in part, reversed in part, and remanded.