Filed June 14, 2005

Reversed and remanded

Toussaint, Chief Judge

Hennepin County District Court

File No. 04017448

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, Benjamin Jon Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

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

TOUSSAINT, Chief Judge

Appellant challenges the upward durational departure of his sentence, arguing that it must be modified to the presumptive term under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the upward durational departure violates appellants’ Sixth Amendment right to a jury trial under Blakely, we reverse and remand for resentencing.

D E C I S I O N

The application of Blakely v. Washington, 124 S. Ct. 2531 (2004) to a sentence presents a constitutional issue, which we review de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

“Other 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.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). Blakely applied Apprendi: “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 2537. Thus, a sentencing departure that is based on the judge’s findings, as opposed to the jury’s, is invalid under the Sixth Amendment. See id. at 2537-38.

Appellant argues that the appropriate remedy is a remand for imposition of the presumptive sentence because his Sixth Amendment rights were violated when a jury did not determine the existence of aggravating factors used for the upward departure and he did not waive the right to have a jury make that determination. See Hagen, 690 N.W.2d at 158-59 (holding that, under Blakely, upward durational departure may not be based on defendant’s “admission” unless it is accompanied by waiver of right to a jury trial on the admitted aggravating factor). The state, on the other hand, argues that: (1) Blakely does not apply to sentencing under the Minnesota Sentencing Guidelines; (2) even if Blakely applies, appellant waived his rights by not making an Apprendi/Blakely claim in the district court; and (3) even if Blakely applies and appellant has not waived his rights, the appropriate remedy is a remand for a new sentencing hearing, not for imposition of the presumptive sentence.

The first two prongs of the state’s arguments are without merit. First, Blakely applies to upward durational departures under the guidelines in Minnesota. State v. Conger, 687 N.W.2d 639, 644-45 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004); see also State v. Saue, 688 N.W.2d 337, 342-43 (Minn. App. 2004) (rejecting state’s argument that Blakely does not apply to Minnesota’s sentencing guidelines scheme because it is dissimilar to the Washington scheme addressed in Blakely), review granted (Minn. Jan. 20, 2005). The supreme court has granted review in Conger and Saue and has stayed additional proceedings pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004). But, by order filed in Shattuck on December 16, 2004, the supreme court indicated that an upward durational departure based on aggravating factors that have not been decided by a jury violates a defendant’s right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. Dec. 16, 2004) (per curiam). Therefore, while a full opinion in Shattuck has not been issued, and the supreme court has not yet decided the appropriate remedy for Blakely violations, Minnesota law currently applies Blakely to upward durational departures under the Minnesota Sentencing Guidelines.

Second, contrary to the state’s position, appellant has not waived his rights under Blakely by failing to raise the issue in the district court. Cf. State v. Leja, 684 N.W.2d 442, 447-48 n.2 (Minn. 2004) (deciding case based on Minnesota sentencing jurisprudence, and not based on Apprendi/Blakely principles, where the appellant waived any argument concerning Blakely). In Leja, Blakely was not briefed on appeal, and the supreme court reversed the upward departure on other grounds, making it’s discussion of waiver dictum. Furthermore, a defendant is “entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial.” State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005) (stayed pending Shattuck).

Blakely applies to all cases pending on direct review at the time Blakely was released and to subsequent direct appeals. See State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). This direct appeals was filed after Blakely was decided. Because appellant is not seeking retroactive application of Blakely, and because the parties have briefed the Blakely issue on appeal, appellant is entitled to the benefit of Blakely. See Fairbanks, 688 N.W.2d at 337.

The third prong of the state’s argument, however, is meritorious. Although the supplemental briefing ordered in Shattuck indicates that the remedy issue has not been settled, this court has routinely handled Blakely violations by remanding for further proceedings consistent with Blakely, but not specifying a particular remedy. See, e.g., Hagen, 690 N.W.2d at 160; State v. Johnson, 689 N.W.2d 247, 254 (Minn. App. 2004), review denied (Minn. Jan 20, 2005). Therefore, consistent with those decisions, we reverse appellant’s sentence and remand for resentencing consistent with Blakely. Given this holding, we do not address appellant’s other issue, i.e., whether the district court’s failure to make findings on the aggravating factors entitles appellant to a reversal of his sentence.

Reversed and remanded.