This opinion will be unpublished and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

A04-1973

A04-2103

 

Dana A. Warmbold, petitioner,

Appellant (A04-1973),

Respondent (A04-2103),

 

vs.

 

State of Minnesota,

Respondent (A04-1973),

Appellant (A04-2103).

 

Filed September 27, 2005

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Itasca County District Court

File No. KX-02-2401

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for Warmbold)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, Minnesota 55744 (for State)

 

            Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this consolidated appeal from a postconviction order affirming his conviction of first-degree criminal sexual conduct involving force or coercion, Dana Warmbold argues that (1) the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration, (2) he was denied the effective assistance of counsel because of a conflict of interest, and (3) the prosecutor committed prejudicial misconduct.  The state challenges Warmbold’s sentence, arguing that the district court abused its discretion by, in effect, applying Blakely retroactively to reduce Warmbold’s sentence to the presumptive term.  We affirm Warmbold’s conviction, but we reverse his sentence and remand.

FACTS

 

On the evening of November 6, 2003, R.M. called the police and reported that appellant Dana Warmbold had beaten and raped her.  When officer Jason Karjala arrived at R.M.’s house, R.M. was intoxicated and in pain.  She told Karjala that Warmbold had been at her house for three days, and that he had beaten and raped her.  Karjala called an ambulance, and R.M. was transported to the hospital.

            At the hospital, R.M. told Karjala that Warmbold had had vaginal and anal sex with her and that the anal sex had caused her to bleed.  She also said that Warmbold had burned her with cigarettes.  Karjala saw bruises on R.M., and pictures taken at the hospital confirm that R.M. was bruised.  DNA samples taken from R.M. matched Warmbold’s DNA. 

Warmbold was arrested and charged with kidnapping and two counts of first-degree criminal sexual conduct.  At trial, R.M. testified that Warmbold stopped by her house in the afternoon of November 2 and that she offered him a beer.  Warmbold then told R.M. that he had been angry when she refused to let him into her house back in May, and that he would kill her if she ever did that again.  After drinking all afternoon, R.M. lay down for a nap and told Warmbold that he could sleep on the couch.  But she warned him that he was not going to have sex with her.

R.M. and Warmbold continued to drink the following day.  R.M. testified that when she woke up that night, she and Warmbold were naked and Warmbold was making genital contact with her.  R.M. asked Warmbold to stop and told him that it hurt.  But Warmbold did not stop, and over the next two or three days he continued to have vaginal intercourse with R.M. and attempted to have anal sex.  R.M. testified that each time, she asked Warmbold to stop.  She also testified that the attempted anal sex hurt and caused her to bleed.  R.M. indicated that she did not remember Warmbold hitting or beating her.  She could not explain the bruise on her back or the cigarette burns on her foot and stomach, but she indicated that she might have bruised herself when she fell down the stairs.

            The jury found Warmbold guilty of first-degree criminal sexual conduct involving the use of force or coercion and third-degree criminal sexual conduct.  But the jury acquitted him on charges of kidnapping and first-degree criminal sexual conduct involving fear of great bodily harm.  The court sentenced Warmbold under the dangerous-offender statute to a 240-month prison term, a departure from the presumptive 161-month sentence.  The upward departure was based on judicial findings that Warmbold treated the victim with particular cruelty and was a danger to public safety.

            Warmbold did not appeal his conviction and sentence directly.  Instead, he filed a postconviction petition, challenging the sufficiency of the evidence and alleging ineffective assistance of counsel and prosecutorial misconduct.  Warmbold also challenged his sentence.  The postconviction court reduced Warmbold’s sentence to the presumptive term, reasoning that the upward departure was based on judicial findings, in violation of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002).  The court denied Warmbold relief on all other issues.  This consolidated appeal from the postconviction court’s order follows. 

DECISION

            A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity and cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  For that reason, this court accords great deference to the postconviction court’s findings and will not reverse those findings unless they are clearly erroneous.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction court’s decision will be upheld absent an abuse of discretion.  State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).

I

            Warmbold argues that the evidence is insufficient to support his conviction of first-degree criminal sexual conduct because it does not establish that he used force or coercion to accomplish sexual penetration.  We disagree.

            When reviewing a sufficiency-of-the-evidence claim, the reviewing court must conduct a painstaking review of the record and legitimate inferences that may be drawn from the record, to determine whether a jury could reasonably conclude that the defendant was guilty of the offense charged.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  The reviewing court must look at the evidence in the light most favorable to the verdict and must assume that the jury disbelieved testimony that conflicted with the verdict.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

            To obtain a conviction of first-degree criminal sexual conduct involving the use of force or coercion, the state had the burden of proving beyond a reasonable doubt that Warmbold engaged in non-consensual sexual contact with R.M., caused her personal injury, and “use[d] force or coercion to accomplish sexual penetration.”  Minn. Stat. § 609.342, subd. 1(e)(i) (2002); 10 Minnesota Practice, CRIMJIG 12.03 (1999).  Warmbold concedes that the evidence is sufficient to establish that he engaged in sexual contact with R.M. without her consent and caused her physical injury.  But he argues that the evidence is insufficient to prove that he used force or coercion to accomplish sexual penetration.

            The relevant statute defines “force” as “[t]he infliction . . . or threatened infliction by the actor of bodily harm or [the] commission or threat of any other crime . . . against the complainant . . ., which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) . . . also causes the complainant to submit.”  Minn. Stat. § 609.341, subd. 3 (2004).  The statute defines “coercion” as “words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon . . . the complainant . . . or force the complainant to submit to sexual penetration or contact.”  Id., subd. 14 (2004). Proof of coercion does not require proof of a specific act or threat.  Id.

            The use of force or coercion need not precede or be separate from the sexual contact but may occur concurrently with it.  See State v. Middleton, 386 N.W.2d 226, 230 (Minn. 1986) (stating that it is enough that the coercive words or conduct, and the fear they cause, happen concurrently with sexual contact).  The force or coercion requirement is minimal and is satisfied “when the actor inflicts bodily harm or pain or the threat thereof on another while accomplishing sexual contact.”  In re Welfare of D.L.K., 381 N.W.2d 435, 438 (Minn. 1986).

            The supreme court has held that the force or coercion requirement was satisfied when the defendant came up behind a female classmate, hit or tapped her on the shoulder, reached under her jacket after she turned, and grabbed and pinched her breast for two seconds, causing her pain.  State v. Brouillette, 286 N.W.2d 702, 706 (Minn. 1979).  Similarly, the court held that evidence that the complainant was bruised when the defendant grabbed her breast and pulled her part way into his car was sufficient to establish force or coercion.  State v. Mattson, 376 N.W.2d 413, 415 (Minn. 1985).  And in a case factually similar to the case at hand, the court determined that force or coercion had been established when the victim testified that she awoke to find her clothing partly removed and the defendant on top of her making genital contact, and the evidence showed that she experienced vaginal redness and soreness from the surprise sexual contact.  State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983).

            As Warmbold concedes, the evidence, viewed in the light most favorable to the verdict, is more than sufficient to establish that Warmbold inflicted pain and caused R.M. to suffer personal injury while accomplishing sexual penetration.  The evidence shows that, over the course of two or three days, Warmbold continued to have sexual contact with R.M., even though she repeatedly asked Warmbold to stop and told him that it hurt.  R.M. also testified that Warmbold’s attempt to have anal sex with her caused her to bleed.  In addition, officer Karjala testified that R.M. was in a lot of pain when he arrived at her house and indicated that he saw bruises and cigarette burns on her.  Although R.M. testified that she did not remember Warmbold hitting her or beating her, she initially told Karjala that Warmbold had inflicted the bruises and burns. 

            Faced with this evidence, Warmbold argues that the pain to which R.M. testified satisfies the personal-injury element of the crime but does not also satisfy the force-or-coercion element.  But this court has held that the same series of acts may satisfy multiple elements of a single crime.  State v. Jarvis, 649 N.W.2d 186, 193 (Minn. App. 2002), aff’d on other grounds, 665 N.W.2d 518 (Minn. 2003).  Contrary to Warmbold’s claim, therefore, Warmbold’s series of acts may satisfy both the personal-injury and the force-or-coercion elements of the crime charged.  Warmbold claims that Jarvis does not control because this case involves a “single act” (pain) rather than a “series of acts.”  But pain is not an “act”; it is the result of an act.  We conclude that under Jarvis, the pain that Warmbold inflicted on R.M. through his conduct satisfies both the personal-injury and force-or-coercion elements of the crime charged.

            Warmbold also argues that the evidence is insufficient because the record contains no evidence that he used threats to initiate sexual contact, that R.M. submitted because he threatened her, or that she was afraid that he had the immediate ability to execute a threat.  But the use of force or coercion need not precede or be separate from the sexual contact; it may occur concurrently with it.  Middleton, 386 N.W.2d at 230 (stating that it is enough that the coercive words or conduct and the fear they cause, happen concurrently with the sexual contact).  Plainly, Warmbold forced or coerced R.M. to submit to the sexual penetration when she repeatedly asked him to stop and he did not do so.

Finally, Warmbold argues that R.M.’s testimony that she did not remember Warmbold hitting or burning her and that her bruises might have come from falling down the stairs belies the state’s claim that he used force to accomplish sexual penetration.  The use of actual force or verbalized threats of force is not necessary to create an atmosphere of fear that causes a complainant to submit, however.  State v. Carter, 289 N.W.2d 454, 455 (Minn. 1979).  The evidence is thus sufficient to establish force or coercion, and the district court did not clearly err by so finding.

II

            On the second day of trial, defense counsel informed the district court that he had represented R.M. in a termination-of-parental-rights case in 1999 and that Warmbold wanted an opportunity to address the court about a possible conflict of interest based on that representation.  Counsel stated that he did not think there was a conflict of interest and that Warmbold was merely dissatisfied with his performance and wanted to turn his dissatisfaction into a conflict-of-interest issue.  The district court asked Warmbold if he wanted to address the court on those issues and Warmbold said, “No.”  The district court then ruled that, standing alone, the prior representation did not create a conflict of interest because it was unrelated to the present case.  The district court added that counsel’s knowledge of R.M. might, in fact, be helpful to the defense.  After Warmbold indicated that he did not want to represent himself, the district court asked Warmbold if he had anything to add on the issue of counsel’s representation.  Warmbold replied, “No.”

Warmbold argues that the district court violated his Sixth Amendment right to counsel by allowing his attorney to represent him without conducting a thorough inquiry into the alleged conflict.  We disagree.

The Sixth Amendment right to counsel includes “a correlative right to representation that is free from conflicts of interest.”  Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981).  To establish a Sixth Amendment violation based on a conflict of interest, a defendant must minimally show an “actual conflict of interest,” i.e., a conflict that adversely affected the adequacy of his or her representation.  Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718 (1980).  A defendant has not established the constitutional predicate for an ineffective-assistance claim “until [the] defendant shows that his counsel actively represented conflicting interests.”  Id. at 350, 100 S. Ct. at 1719.  The “possibility of conflict” is insufficient to establish a violation.  Id.

Warmbold did not satisfy his burden of proving that his counsel actively represented conflicting interests.  Counsel’s prior representation of R.M. occurred four years before Warmbold’s trial, and R.M.’s termination-of-parental-rights case had been completed and bore no relation to the present case.  In addition, Warmbold’s counsel indicated that he did not believe that there was an impermissible conflict of interest.  The district court was entitled to rely on counsel’s representation.  See Holloway v. Arkansas, 435 U.S. 475, 485–86, 98 S. Ct. 1173, 1179 (1978) (deferring to defense counsel’s judgment regarding existence of conflict of interest in joint-representation case, reasoning that defense counsel is in best position to determine whether conflict exists, that counsel has an ethical obligation to advise the court of a conflict of interest, and that lawyers are officers of the court and counsel’s declarations are therefore “virtually made under oath”) (quotation omitted); Cooper v. State, 565 N.W.2d 27, 32 (Minn. App. 1997) (citing Holloway for proposition that “court was entitled to place great weight on the attorney’s conclusion that he was not subject to an actual conflict of interest”), review denied (Minn. Aug. 5, 1997).  The district court’s finding that Warmbold’s counsel was not subject to a conflict of interest by virtue of his representation of R.M. is thus not clearly erroneous. 

Warmbold nonetheless argues that his conviction must be automatically reversed without a showing of prejudice because the district court was alerted to a possible conflict of interest but failed to take adequate steps to ascertain whether the conflict compromised his right to a fair trial.  But the district court’s failure to inquire into an alleged conflict does not relieve the defendant of the burden of showing that a conflict of interest affected counsel’s performance and thereby rendered the verdict unreliable, even though Strickland prejudice cannot be shown.  Mickens v. Taylor, 535 U.S. 162, 172–73, 122 S. Ct. 1237, 1244 (2002) (stating that the proposed rule of automatic reversal when the district court fails to make Sullivan-mandated inquiry, but the conflict does not affect counsel’s performance, “makes little policy sense”).  Moreover, the automatic-reversal rule applies only when counsel is required to represent conflicting interests jointly, despite his or her timely objection.  Holloway, 435 U.S. at 481–83, 98 S. Ct. at 1177–78.  Finally, even if the failure to inquire were relevant, the district court’s inquiry in this case, although minimal, was sufficient to allow the district court to determine whether a conflict of interest existed.

Warmbold argues that, even if the district court’s failure to inquire does not constitute reversible error, reversal is required because the district court erred by concluding that counsel’s conflict of interest did not adversely affect his representation.  Warmbold argues that counsel’s continuing duty to R.M. and inability to use confidential information he gained while representing her prevented him from aggressively cross-examining R.M.  But Warmbold has not established that any of the information counsel needed to cross-examine R.M. was confidential or that, absent a conflict, counsel would have been able to use additional information in cross-examining R.M.  In fact, the record shows that counsel aggressively cross-examined R.M. and otherwise provided Warmbold a vigorous defense. 

Warmbold claims that the actual quality of his defense “is beside the point” because counsel’s ability to “fully defend[] [him] was compromised by his duty of confidentiality and loyalty to [R.M.]” and counsel was “in effect, forced to defend [him] with one hand tied behind his back.”  But Warmbold has not established that there was a plausible alternative defense strategy or line of attack that defense counsel might have pursued were it not for the actual conflict or a reasonable likelihood that counsel’s performance would have been different had there been no conflict of interest.  See State v. Miller, 666 N.W.2d 703, 717–18 (Minn. 2003) (rejecting as unsupported conflict-of-interest claim that counsel’s previous representation of witness may have affected cross-examination of witness); Cooper, 565 N.W.2d at 32–33 (stating that defendant’s vague and unfounded allegation that because defense counsel’s firm had previously represented victim’s mother counsel was precluded from vigorously cross-examining the victim was insufficient to establish that conflict adversely affected representation).  Nor has he established that his attorney, while representing R.M., acquired any confidential information relevant to Warmbold’s defense or that he was precluded from using that information because of the duty of confidentiality.  Thus, even if Warmbold had demonstrated that his attorney actively represented conflicting interests, his ineffective-assistance claims fails because Warmbold did not meet his burden of proving that his attorney’s alleged conflict of interest adversely affected his performance at trial and thereby undermined the reliability of the conviction.

III

            Next, Warmbold argues that the prosecutor committed misconduct during closing argument and deprived him of a fair trial by telling the jury that men have powerful sexual impulses, by describing “rules of behavior” necessary to prevent disease and implying that Warmbold did not abide by them, and by referring to anal sex as a “messy and disgusting intrusion” pleasurable only for men. 

            Whether prosecutorial misconduct warrants a new trial is a matter within the district court’s discretion.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  An appellate court will reverse a conviction on the ground of prosecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.”  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  In cases involving less-serious prosecutorial misconduct, an appellate court will reverse only if the misconduct “played a substantial part in influencing the jury to convict.”  State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

            But defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or to seek a curative instruction.  State v. Torres, 632 N.W.2d 609, 617–18 (Minn. 2001); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” misconduct.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

            The prosecutor began his closing argument by commenting on the differences between men and women when it comes to sex.  Counsel first stated that “the impulse of a man to have sexual intercourse . . . can be really powerful.”  But he noted that “for the most part[,] human beings act with restraint.”  Counsel then explained in detail the physiological changes women experience before sexual intercourse, noting that although sexual intercourse is not painful for men it can be painful for women who are not aroused.

Counsel also commented on anal sex, stating that “[i]t’s not a good idea to have a penis pushed into your rectum, because the rectum is not built like the vagina.”  Counsel added that “it’s virtually inconceivable that there could be any pleasure for anyone other than a man with that kind of messy and disgusting sort of intrusion.”

Finally, counsel referred to certain “rules of behavior” and to their importance in preventing disease.  Counsel told the jury, “You may wonder why we have all these rules, you know, like you have sex with one woman, you have one person in your life.  You don’t hop from one person to the next.  Do you wonder why we’ve got rules like that?  Well, there may be many, many reasons, but one of them is disease.”

The district court ruled that the prosecutor committed misconduct but it concluded that the misconduct was not prejudicial.  The state does not dispute that the prosecutor committed misconduct, but it argues that the misconduct was not prejudicial and did not therefore entitle Warmbold to a new trial.  We agree.

The prosecutor’s comments constituted misconduct because they were not based on the evidence, they disparaged Warmbold’s character and lifestyle, they invited the jury to consider sexual morality in determining Warmbold’s guilt, and they revealed the prosecutor’s personal disapproval of Warmbold’s sexual practices.  See State v. Ray, 659 N.W.2d 736, 747 (Minn. 2003) (holding that the prosecutor’s attempt to supply race-based explanation for witnesses’ behavior improperly invited jury to apply racial and socio-economic consideration in determining guilt); State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) (holding that the prosecutor improperly attacked the defendant’s character when she referred to him as “coward” with a “twisted” thought process); State v. Ives, 568 N.W.2d 710, 713–14 (Minn. 1997) (holding that prosecutor’s comment that the defendant was a “would-be punk” with a “pathetic little li[fe]” constituted an improper attack on the defendant’s character).

But the misconduct was not “unduly prejudicial.”  See Whittaker, 568 N.W.2d at 450 (stating that relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” misconduct).  First, Warmbold failed to object to the prosecutor’s comments at trial.  A defendant’s failure to object implies that the misconduct is not prejudicial and “weighs heavily against granting any remedy.”  Ives, 568 N.W.2d at 713.  Second, the district court diminished the effect of the prosecutor’s comments by instructing the jury that counsel’s arguments were not evidence, and that they were required to decide the case without prejudice or emotion.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that jury instructions are relevant in determining whether the jury was unduly influenced by improper comments); State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994) (stating that the court’s instructions “lessened the impact of the [prosecutor’s] improper comments”).  Third, the evidence strongly supported the verdict.  See Ives, 568 N.W.2d at 714 (considering “overwhelming evidence of [the defendant’s] guilt” in holding that the prosecutor’s misconduct did not influence the jury’s determination of guilt); Whittaker, 568 N.W.2d at 451 (concluding that misconduct was harmless error partly in light of strong evidence of the defendant’s guilt).  Finally, the jury acquitted Warmbold of kidnapping and criminal sexual conduct with intent to commit great bodily harm, thereby showing that they were not unduly influenced by the prosecutor’s comments.  See State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990) (stating that an acquittal on one count indicated that members of jury were not unduly inflamed by the prosecutor’s misconduct); State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (considering an acquittal on three charges in determining that prosecutorial misconduct did not warrant reversal); State v. Matthews, 301 Minn. 133, 136, 221 N.W.2d 563, 565 (1974) (noting that an acquittal of a greater offense and a conviction of lesser offenses indicated that the jury was not prejudicially influenced by an improper closing argument).

IV

            The district court sentenced Warmbold under the dangerous-offender statute to a 240-month prison term, an upward departure from the presumptive sentence of 161 months.  See Minn. Stat. § 609.1095, subd. 2 (2004).  The court based the departure on judicial findings that Warmbold was a danger to public safety and that he treated the victim with particular cruelty.  Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), the postconviction court reduced Warmbold’s sentence to the presumptive term, reasoning that the Sixth Amendment requires that any fact that enhances the sentence a defendant actually receives—rather than the maximum sentence he could receive—must be found by a jury. 

            The state argues that the district court erred by concluding that Warmbold’s sentence was unconstitutional under Ring.  In Ring, the Supreme Court held that because defendant’s death sentence exceeded the statutory maximum of life imprisonment, it could be constitutionally imposed under Apprendi only if the necessary factual findings were made by a jury or the defendant waived the right to have a jury make those findings.  536 U.S. at 609, 122 S. Ct. at 2443.  At the time Ring was decided, the statutory maximum was the maximum penalty allowed by statute.  See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63.  Because Warmbold’s upward departure did not exceed the 360-month statutory maximum, his sentence did not run afoul of Ring.  It was not until Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), that the Supreme Court held that the statutory maximum for Apprendi purposes was not the maximum penalty allowed by statute but the presumptive sentence in a system with mandatory sentencing guidelines. 

Blakely was decided after Warmbold’s sentence became final, however, and is not subject to retroactive application on collateral review.  State v. Houston, 689 N.W.2d 556, 559–60 (Minn. App. 2004), aff’d ___ N.W.2d ___ (Minn. Aug. 18, 2005).  The sentence, therefore, may not be invalidated under Blakely.  Although the Ring court made broad statements that foreshadowed Blakely, its focus was on findings that increase a defendant’s sentence above the maximum sentence rather than findings that merely authorize an upward departure below the maximum sentence.  Accordingly, the district court erred in concluding that Warmbold’s original sentence of 240 months was unconstitutional under Ring.  We therefore reverse and remand for resentencing consistent with this opinion, and with the supreme court’s decision in State v. Shattuck, ___ N.W.2d ___ (Minn. Aug. 18, 2005).

            Affirmed in part, reversed in part, and remanded.