Filed June 21, 2005

Reversed and remanded

Randall, Judge

Hennepin County District Court

File No. 04035149

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.*

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

RANDALL, Judge

On appeal from conviction and sentence for fifth-degree controlled substance crime, appellant argues that her sentence under the firearm-enhancement statute violates her right to a jury trial under Blakely because it was based on a judicial finding that appellant possessed a firearm that increased the risk of violence. Appellant also contends that evidence that the firearm was found under a mattress away from the drugs was insufficient to establish that enhancement under the statute was justified. Because the factual determinations necessary for the sentence enhancement are a violation of appellant’s right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004), we reverse and remand.

FACTS

On May 29, 2004, law enforcement received a call from the manager of the Extended Stay Hotel concerning the smell of marijuana smoke coming from room 328. Two police officers responded to the scene, and they discovered that the registered guest of room 328, Negieh Deanne Masrojhe, had felony warrants out for her arrest. After knocking on the door, appellant Sheila Rinehart let the officers into the room, where the officers observed drug paraphernalia and several Oxycontin and Alprazolam pills lying around the room. Officers also discovered a .22 caliber pistol under the mattress. Appellant and Masrojhe were subsequently arrested, and appellant was charged with two counts of controlled substance crime in the fifth-degree, each involving “firearm enhancement” under Minn. Stat. § 609.11, subd. 5 (2004).

On June 9, 2004, appellant pleaded guilty to one count of controlled substance crime in the fifth-degree. At the plea hearing, appellant admitted to possession of Oxycontin without a prescription. Appellant also admitted that she knew that the gun was under the mattress, and that the gun was hers. In exchange for her guilty plea, the state agreed to recommend a 36-month sentence, and to not pursue a felon-in-possession of a firearm charge against appellant. Appellant was subsequently sentenced to an enhanced term of 36 months imprisonment based on the district court’s finding that “the gun was in close proximity to the drugs and may have been used in furtherance of a drug transaction.” This appeal followed.

D E C I S I O N

Appellant argues that the enhanced sentence imposed on her based on the judge’s findings violates the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004). In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

In Blakely, the Supreme Court held that the sentencing judge may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537 (emphasis omitted). In Blakely, the Court held that an upward durational departure (or “exceptional sentence,” in the Washington state law’s terminology) could not be imposed based on judicial findings. Id. at 2537-38. The Minnesota Supreme Court has affirmed the application of Blakely to the Minnesota sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).

Under Minn. Stat. § 609.11, subd. 5(a) (2004):

[A]ny defendant convicted of [a qualifying offense] . . . in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law.

For purposes of this statute, the term “had in possession” includes both actual possession and constructive possession. State v. Royster, 590 N.W.2d 82, 83-84 (Minn. 1999). An individual has constructive possession of a firearm if he consciously exercises dominion and control over it. State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982). If the sentence was enhanced based on constructive possession, the next inquiry on appeal is whether the constructive possession “increased the risk of violence.” Royster, 590 N.W.2d at 85.

Appellant contends that in light of Blakely, her 36-month firearm-enhanced sentence is unconstitutional because she was entitled to have a jury determine whether she possessed the firearm at the time of the drug offense, and whether the firearm’s presence increased the risk of violence. We agree. InState v. Barker, the defendant was charged with a single count of fifth-degree controlled substance crime, committed “while possessing a firearm,” and therefore subject to a sentence enhancement under Minn. Stat. § 609.11. 692 N.W.2d 755, 757 (Minn. App. 2005), review granted (Minn. May. 17, 2005). The defendant agreed to waive his right to a jury trial, submit to a stipulated-facts trial, and have a contested hearing on the firearm enhancement. Id. At the hearing, the defendant testified that the gun was his and that it was for “protection only.” Id. The district court concluded that the defendant possessed the handgun at the time he possessed the drugs. Id. The district court therefore sentenced the defendant to 36 months in prison under Minn. Stat. § 609.11, because the defendant’s possession of the handgun increased the potential for violence. Id.

On appeal, this court stated that the presumptive sentence for the defendant’s fifth-degree controlled substance crime, without the application of Minn. Stat. § 609.11, subd. 5(a), would have been only a stayed sentence of one year and one day. Id. at 759. The court reasoned that the mandatory-minimum statute, therefore, increased the sentence the district court could impose, without departure, above the presumptive sentence, the duration that would be determined solely by the jury’s verdict. Id. Thus, the court held that because the mandatory-minimum statute functioned the same as an aggravating factor by increasing what otherwise would be the presumptive sentence, it should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely.[1] Id. at 760 (reversing the defendant’s sentence).

Here, as in Barker, the presumptive sentence for appellant’s fifth-degree controlled substance crime, without the firearm enhancement, would have been far less than 36 months. Thus, when the district court sentenced appellant to an enhanced term of 36 months imprisonment, the firearm enhancement functioned as an aggravating factor. Under these circumstances, appellant was entitled to have a jury determine whether she possessed the firearm at the time of the drug offense, and whether the firearm’s presence increased the risk of violence. See id. (concluding that before the statute may be applied, it must be found that the defendants possessed a firearm, and that doing so increased the risk of violence).

The state contends that because appellant “stipulated to the relevant facts,” by admitting to possessing the controlled substance and the gun, and also admitting that she knew the gun was under the mattress, the case falls into the Blakely “admission exception.” In support of this assertion, the state cites Blakely, where the Supreme Court stated that “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence
enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” See Blakely, 124 S. Ct. at 2541 (recognizing exception to the jury-trial right when defendant admits facts supporting an increase in sentence). Thus, the state argues that appellant is not entitled to relief under Blakely.

We disagree. Recently, this court stated in State v. Hagen, that “we cannot conclude that Blakely leaves a defendant free to stipulate to a ‘sentencing factor’ without complying with the requirements pronounced in Wright for waiver of a jury trial on an element of the offense.”[2] 690 N.W.2d 155, 159 (Minn. App. 2004) (reversing and remanding the defendant’s sentence on the basis that the defendant’s admissions to aggravating factors did not constitute an express valid waiver of his “Blakely” jury trial right on sentencing factors). In Barker, the court held that although the defendant admitted that the gun was his and that he carried it for protection, the defendant did not admit that possession of the gun increased the risk of violence. 692 N.W.2d at 760 (stating that before Minn. Stat. § 609.11 is applied, it must be found, based on all the facts and circumstances, that the defendant possessed a firearm, and that doing so increased the risk of violence from the commission of the crime).

Here, appellant’s “stipulation” was not accompanied by a personal oral or written waiver of her right to a jury trial on the element of whether the firearm’s presence increased the risk of violence. The district court enhanced appellant’s sentence based on judicial findings that “the gun was in close proximity to the drugs and may have been used in furtherance of a drug transaction.” The factual determinations necessary for the sentence enhancement are a violation of appellant’s right to a jury trial under Blakely.

Appellant also contends that the evidence that the firearm was found under a mattress away from the drugs was insufficient to establish that enhancement under the statute was justified. It is clear that the trial court had to make factual determinations concerning the firearm found under a mattress, enough to bring the Blakely issue into play.

The issue on appeal is the sentence, not the charges. Neither side raised or briefed the issue of whether the state can now attempt to bring back the charges dismissed as part of the plea agreement since the plea agreement contained an agreement as to both the charge and the recommended sentence, and we are reversing on the sentence. Since this issue was not raised, we decline to address it.

The sentence enhancement was a violation of appellant’s right to a jury trial on sentencing factors under Blakely. The sentence is reversed and the case remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In analyzing Blakely’s effect on Minnesota’s mandatory minimum sentences, the court noted that the firearm-enhancement statute applies to a wide range of offenses. Barker, 692 N.W.2d at 759. The court stated that for the more “serious offenses, the mandatory-minimum sentence, because it does not increase the presumptive sentence, has no significance for purposes of Blakely and the jury-trial right.” Id.

[2] This court held in Wright that a defendant’s stipulation to an element of an offense must be supported by a personal oral or written waiver of the defendant’s right to a jury trial on that element. State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied Minn. June 29, 2004).