This opinion will be unpublished and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

A04-1790

 

State of Minnesota,

Respondent,

 

vs.

 

Clayton Bellanger,

Appellant.

 

Filed June 28, 2005

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

 

Itasca County District Court

File No. KO-02-1094

 

 

 

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

 

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant Itasca County Attorney, Courthouse, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)

 

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

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

In this appeal from an order revoking appellant’s probation for first-degree assault, appellant Clayton Bellanger argues that the district court abused its discretion in revoking his probation based on three new misdemeanor offenses without making a finding that the need for confinement outweighed the policies favoring probation.  He also argues that his waiver of his right to appeal, as part of the plea agreement, is unenforceable, and that Minn. Stat. § 244.11, subd. 3(b) (2002), unconstitutionally bars a defendant who receives a dispositional sentencing departure from obtaining direct appellate review of his sentence.  Additionally, appellant argues that Blakely applies retroactively to his 2002 sentence, and the double durational departure based on judicial findings violates his right to a jury trial, requiring a modification of the sentence to the presumptive term.  Finally, appellant argues that the record does not support the court’s finding that the assault was committed with particular cruelty.  Because there was no constitutional infirmity, Blakely does not apply here; and the court did not err in finding particular cruelty, we affirm those determinations.  But because the court failed to make all the requisite Austinfindings, we reverse and remand for additional findings.

FACTS

Late in the evening on May 28, 2002, appellant Clayton Bellanger and several other people were gathered together in Ball Club drinking alcohol.  At about 10:30 p.m. three people, two men and one woman, arrived to join Bellanger’s group.  Upon arriving, the woman indicated that M.S., one of the men in the group, had hit her in the face.  Approximately 15 minutes later, a fight began between M.S. and Bellanger’s group of friends. 

Throughout the course of the evening, Bellanger continued to fight intermittently with M.S. and others.  The group would fight, stop to drink, and resume fighting.  Later, as Bellanger was walking to a friend’s house, M.S. yelled “something smart” and began to run away.  Bellanger chased him and tackled him, and the two exchanged punches.  One of Bellanger’s friends then picked up M.S. and held him under his arms as Bellanger kicked him five or six times in the head.  Bellanger abandoned M.S. next to the road and went to his friend’s house.  When Bellanger left M.S., he was not moving or talking and his eyes were shut.

M.S. was treated at the Deer River Hospital for head trauma.  He was eventually taken to St. Mary’s hospital in Duluth to undergo brain surgery and was later listed in critical condition.  Bellanger was apprehended and charged with first-degree assault. 

On September 20, 2002, Bellanger pleaded guilty to first-degree assault under a plea agreement that provided for a double upward durational departure and a downward dispositional departure, resulting in a stayed 172-month sentence.  The basis for the downward departure was Bellanger’s cooperation and willingness to testify truthfully in any other trials.  The basis for the upward departure was the particular cruelty of the assault.  As part of the agreement, Bellanger would have ten years of supervised probation.  He also agreed to have a chemical-dependency and anger evaluation and pay a $1,040 fine.  Additionally, he agreed to waive his right to appeal either the conviction or the sentence.  The district court sentenced Bellanger in accordance with the agreement on October 28, 2002.

On June 21, 2003, Bellanger admitted to violating his probation by consuming alcohol.  The court ordered him to serve 15 days in jail and regularly attend Alcoholics Anonymous meetings.  He violated probation again on January 14, 2004, when he admitted to drug use, failure to pay fines, and failure to remain in contact with his probation officer.  The court required that he serve six months in jail.  On June 22, 2004, Bellanger pleaded guilty to three misdemeanor offenses, including obstruction of legal process, underage consumption, and criminal damage to property.  After a hearing, the district court vacated the stay and executed Bellanger’s original 172-month sentence.  This appeal followed.

D E C I S I O N

1.         Probation Revocation

Bellanger argues that the district court erred in revoking his probation and executing his sentence because it failed to provide specific findings on each of the Austin factors. 

The district court “has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The district court must engage in a three-step analysis before probation can be revoked: (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  Id.250.  The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.  Id. at 251.

Bellanger claims that the district court erred when it revoked his probation and executed the sentence without making specific findings on the Austinfactors.  In the past, appellate courts have applied a “sufficient evidence exception” to the requirement that district courts make findings in support of the Austinfactors.  See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 10, 1995) (stating that the district court’s failure to make the express findings on the Austin factors is not an abuse of discretion where the record contains sufficient evidence to warrant the revocation); State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (the lack of explicit findings is not an abuse of discretion when the decision to revoke probation is supported by ample evidence in the record).  However, the Minnesota Supreme Court recently determined that the “sufficient evidence” exception previously recognized by the lower courts cannot “be reconciled with the language of Austin itself.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005).  The supreme court specified that it is not the defendant’s burden to request that the district court make specific findings on each of the Austin factors and reaffirmed the essential holding of Austin requiring that the district court make the three findings on the record before probation may be revoked.  Id.

In this case, the district court failed to make specific findings for each of the three Austinfactors on the record.  Because the district court is required to make each of the requisite Austinfindings expressly and on the record before a defendant’s probation may be revoked, and because the district court failed to do so, we must reverse the court’s order and remand for additional findings.

2.         Constitutionality of Minn. Stat. § 244.1,1 subd. 3(b)(1)(2) (2002)

            Bellanger asserts that Minn. Stat. § 244.11, subd. 3(b)(1)(2) (2002), is unconstitutional.  We evaluate a statute’s constitutionality as a question of law.  Granville v. Minneapolis Pub. Schs., 668 N.W.2d 227, 230 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  Minnesota statutes are presumed constitutional and are declared unconstitutional only “with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  “If a legislative act is reasonably susceptible to two different constructions, one of which will render it constitutional and the other unconstitutional, the former must be adopted.”  Fed. Distillers, Inc. v. State, 304 Minn. 28, 39, 229 N.W.2d 144, 154 (1975).  “[F]airly debatable questions as to [a law’s] reasonableness, wisdom, and propriety are not for the determination of courts.”  S.C. State Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 191, 58 S. Ct. 510, 517 (1938); see also State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990).      

            Here, Bellanger claims that Minn. Stat. § 244.11, subd. 3(b), is unconstitutional because: (a) a defendant cannot waive his right to appeal a sentence; (b) it violates the separation of powers doctrine; (c) criminal rules take precedence over conflicting procedural statutes; and (d) it violates the Equal Protection Clause. 

            a.         Waiver of right to appeal

            Bellanger argues that, although he waived his right to appeal during the plea hearing, that waiver is unenforceable.  Generally, it is possible to forgo a constitutional or statutory right with a knowing, intelligent, and voluntary waiver.  Ballweber v. State, 457 N.W.2d 215, 217 (Minn. App. 1990).  In this case, Bellanger entered a plea agreement which required him to plead guilty to first-degree assault, in return for a downward dispositional departure and an upward durational departure.  Accordingly, his sentence was a stayed 172-month sentence.  Bellanger’s lawyer, the prosecutor, and the court engaged in a colloquy with Bellanger to establish that Bellanger was making an informed decision in entering the plea agreement.  At one point, the prosecutor specifically asked Bellanger if he was “agreeing to give up [his] right to appeal the sentence that would be imposed as part of this plea agreement?”  He answered that he understood that he was waiving his right to appeal the sentence, stated that he had no questions about the waiver, and answered a second time that he understood that he was waiving his right to appeal.  Thus, Bellanger’s waiver satisfies the requirements of a valid waiver in that it was knowing, intelligent, and voluntary.  However, the question now becomes whether Bellanger can waive his right to appeal his sentence.

            Minnesota law gives a criminal defendant an unconditional right to appeal from any sentence imposed or stayed.  Id. (citing Minn. Stat. § 244.11 (1988)).  This court has held that a defendant cannot waive his right to appeal the legality of a sentence.  State v. Anyanwu, 681 N.W.2d 411, 413 (Minn. App. 2004).  But this court has also held that a defendant validly waived his right to appeal when he negotiated a shorter sentence after he had been convicted, sentenced, and filed an appeal.  Spann v. State, 686 N.W.2d 868, 870-71 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  The Spann decision specifically points out that the appeal waiver did not arise out of a plea agreement and that in return for the waiver the appellant received a known benefit.  Id. at 871.

            “[C]ourts generally permit challenges alleging that the sentence imposed was in violation of the plea bargain.”  Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 142 (1995).  “However, the issue which has led to the greatest division is whether other sentencing error may be waived as part of a waiver of appeal rights.”  Id.  Notably, Minnesota has been recognized as going the farthest by holding that all sentencing error is immune from negotiated appeal waivers.  Id.

            Bellanger’s waiver meets the criteria for a valid waiver.  However, under current caselaw, a right to have the sentence reviewed is not valid as a matter of law.  Therefore, we hold that Bellanger’s waiver of his right to appeal his sentence is unenforceable.  

            b.         Separation of powers doctrine 

            Bellanger asserts that Minn. Stat. § 244.11, subd. 3(b)(1)-(2) (2002), violates the separation of powers doctrine and is therefore unconstitutional.  Essentially, his argument is that the judiciary’s role is to determine procedural issues, while the role of the legislature is to determine matters of substantive law.  The Minnesota Supreme Court has recognized that the judiciary has the authority to regulate procedural aspects of criminal actions in all courts in this state.  State v. Johnson, 514 N.W.2d 551, 553 (Minn. 1994).  This authority arises out of the court’s inherent judicial powers.  State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983).  However, the supreme court has also consistently recognized that due respect for coequal branches of government requires courts to exercise great restraint in considering the constitutionality of statutes, particularly when the consideration involves questions of what is a legislative function and what is a judicial function.  Johnson, 514 N.W.2d at 554; Willis, 332 N.W.2d at 184.  When a statute neither interferes with nor impairs a judicial function, it will be upheld as a matter of comity.  Willis, 332 N.W.2d at 184. 

            In this case, the challenged Minnesota statute requires defendants who have agreed to plea agreements and received stayed sentences, which are departures from the sentencing guidelines, to appeal the sentence within 90 days from the date of the pronouncement of the sentence or before they commit an act that results in a revocation of the stayed sentence.  Minn. Stat. § 244.11, subd. 3(b)(1)-(2).  Bellanger fails to show how this statute interferes with a judicial function.  Because the people impacted by the statute are defendants who have already pleaded guilty to a crime, and benefited by receiving a stayed sentence, they would be appealing something they agreed to.  Therefore, because Bellanger has failed to show that this statute interferes with or impairs a judicial function and because of the respect we show the legislature, we hold this statute does not violate the separation of powers doctrine.

            c.         Criminal rules over procedural statutes

            Bellanger argues that Minn. Stat. § 244.11, subd. 3(b)(1)-(2), conflicts with a rule of Minnesota criminal procedure.  Generally, both branches of government agree that in matters of procedure rather than substance, the rules of criminal procedure take precedence over statutes to the extent that there is any inconsistency.  Johnson, 514 N.W.2d at 554.  And the judiciary may strike down procedural statutes that conflict with court rules.  State v. Lindsey, 632 N.W.2d 652, 659 (Minn. 2001).

            In this case, the rule that Bellanger claims conflicts with the applicable statute is Minn. R. Crim. P. 28.02, subd. 2(3), which provides that a defendant may appeal as of right from any sentence imposed or stayed in a felony case.  Bellanger appears to believe that this rule guarantees an unconditional right to appeal a sentence.  However, the rule does not state that the right to appeal is unconditional.  And the statute Bellanger cites as conflicting with the rule does not deny a defendant’s right of appeal, but limits the assertion of that right to a reasonable time frame of 90 days.  Minn. Stat. § 244.11, subd. 3(b)(1)-(2).  In fact, this statute is clearly in accord with the rules of criminal procedure.  According to Minn. R. Crim. P. 28.02, subd. 4(3), “[a]n appeal by a defendant shall be taken within 90 days after final judgment or entry of the order appealed from in felony and gross misdemeanor cases.”  And a judgment shall be considered final within the meaning of these rules when there is a judgment of conviction upon the verdict of a jury or the finding of the court, and sentence is imposed or the imposition of sentence is stayed.  Minn. R. Crim. P. 28.02, subd. 2(1).  Therefore, because the rule does not provide for an unconditional, unlimited right to appeal, and because the statute merely clarifies that the same time limit applies to defendants who have agreed to plea agreements, Bellanger’s argument fails. 

            d.         Equal Protection violation

            Bellanger claims that Minn. Stat. § 244.11, subd. 3(b)(1)-(2), violates the Equal Protection clause of the Fourteenth Amendment and Article 1, section 2 of the Minnesota Constitution.  Statutes must be proven unconstitutional beyond a reasonable doubt.  Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 73 (Minn. 2000).  The party challenging the constitutionality of a statute bears the burden of reaching that standard.  Id. 

            Bellanger acknowledges that this statute does not involve a suspect class or a fundamental right.  Therefore, the statute is presumed valid and will be sustained if the classification drawn by it is rationally related to a legitimate government interest.  Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn. 2002).  The rational-basis test requires

that (1) [t]he distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

 

Id.

            Bellanger argues that the distinction this statute makes is between defendants who enter plea agreements and receive stayed sentences and “all other defendants.”  He argues that this distinction occurs because the defendants who have entered plea agreements and have received stayed sentences are denied the right to appellate review.  Bellanger either misreads the statute in reaching this conclusion or implies that the statute “functionally denies” a defendant in this position appellate review.  Although it may not be the most prudent course of action for a defendant who has received a stayed sentence as part of a plea agreement to challenge the sentence on appeal, he is not denied the right to an appeal under the statute.  In fact, the statute clearly guarantees the right to appeal as long as it complies with particular guidelines.  Notably, these guidelines do not drastically differ from the right to appeal all of the “other defendants” have in that it must be done in 90 days.  Compare Minn. R. Crim. P. 28.02, subd. 4(3), and Minn. Stat. § 244.11, subd. 3(b)(1)-(2).  Therefore, because virtually all defendants have the right to appeal a final judgment within 90 days, there is no real distinction between Bellanger and other defendants and, thus, his argument fails.

3.         Is Bellanger’s sentence unconstitutional under Blakely?

            Bellanger claims that the upward durational departure of his sentence is unconstitutional under both Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  However, this court has held that Blakely was not dictated by Apprendi.  State v. Houston, 689 N.W.2d 556, 559-60 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  Additionally, this court noted that it had joined the majority of courts in not invalidating upward departures under sentencing guidelines schemes based on judicial findings under Apprendi.  Id. at 560; see State v. McCoy, 631 N.W.2d 446, 450-51 (Minn. App. 2001) (concluding that the statutory maximum is dictated by the statute for the charged offense, not the sentencing guidelines).  Therefore, because this court never applied Apprendi to the sentencing guidelines, and because this case involves a departure from the guidelines, Bellanger’s reliance on Apprendi fails.

Bellanger also argues that the upward departure is unconstitutional under Blakely.  This court has clearly held that Blakely does not apply retroactively.  Houston, 689 N.W.2d at 560.  And new rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  A case is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and time for petition or certiorari has elapsed.  Id.  A defendant who agrees to a plea agreement and is given a stayed sentence, which is a departure from the guidelines, may appeal the sentence either within 90 days from when the sentence was pronounced or before the date of any act committed by the defendant resulting in revocation of the stay, whichever occurs first.  Minn. Stat. § 244.11 subd. 3(b)(1)-(2) (2002). 

Bellanger was sentenced on October 28, 2002.  Ninety days from October 28, 2002, would require an appeal of the sentence to have been brought in January of 2003.  He did not appeal the sentence within the 90-day time frame required for sentencing appeals; therefore, his case was final.[2]  Blakely was released on June 24, 2004.  Bellanger did not have a direct appeal pending when that decisionwas announced, and, thus, Blakely does not apply.  Notably, this court recently held that a probation-revocation appeal does not extend the date of finality for purposes of applying the Blakely rule to sentence departures.  State v. Losh, 694 N.W.2d 98, 101 n.2. (Minn. App. 2005).

4.         Insufficient evidence to support particular-cruelty finding

            Finally, Bellanger argues that there is insufficient evidence to support the aggravating factor of particular cruelty, and thus the upward durational departure cannot be imposed.  The decision to depart from the presumptive sentence rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  And if the record supports findings that substantial and compelling reasons exist, this court will not modify the departure unless it has a strong feeling that the sentence is disproportional to the offense.  State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984); see also State v. Woelfel, 621 N.W.2d 767, 774 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001). 

            In this case, the court accepted and Bellanger agreed to a plea bargain that allowed a downward dispositional departure and a double upward durational departure from the guidelines.  “Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the sentencing guidelines’ maximum presumptive sentence duration.”  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).  Bellanger pleaded guilty to first-degree assault.  He testified that the victim was assaulted numerous times throughout the course of the evening.  The “small” assaults, over the course of the evening, culminated in Bellanger chasing the victim down, tackling him and punching him while he was on the ground in the middle of a road.  Then Ballenger’s friend picked the victim up from under his arms and Bellanger kicked him in the face approximately five to six times.  Bellanger testified that the victim’s head went “boom, boom, boom” as he kicked him.  The reason Bellanger stopped assaulting the victim was that a car was coming down the road.  After the car passed, Bellanger dragged the victim’s body out of the road and left him on the curb.  The district court noted that the upward departure was based on the “extreme cruelty as far as the assault was concerned.”  And the court, when executing the sentence at the probation revocation hearing, noted “the assault was vicious, and so vicious, in fact, that a medical doctor believed that [the victim] was going to die.”  Therefore, the district court did not abuse its discretion in accepting a plea agreement that involved an upward durational departure because the record supports a finding of particular cruelty by Bellanger, and we affirm that determination. 

            Affirmed in part, reversed in part, and remanded.