STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1694

State of Minnesota,
Respondent,

vs.

Adriane Nicole Williams,
Appellant.

Filed November 15, 2005

Reversed and remanded

Wright, Judge

Hennepin County District Court

File No. 02072878

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

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

WRIGHT, Judge

In a direct appeal challenging the duration of her sentence, appellant argues that the district court violated her Sixth Amendment right to a jury trial, as recognized in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), when it imposed a sentence that is an upward durational departure from the Minnesota Sentencing Guidelines. We reverse and remand for resentencing.

FACTS

Appellant Adriane Williams’s two-year-old godson died from dehydration while in her care. Williams was charged with second-degree felony murder, in violation of Minn. Stat. ง 609.19, subd. 2(1) (2002). Williams waived her right to a jury trial pursuant to Minn. R. Crim. P. 26.01, subd. 1(2). Following a bench trial, the district court acquitted Williams of second-degree murder but sua sponte considered lesser included offenses. Williams was convicted of second-degree manslaughter, in violation of Minn. Stat. ง 609.205(5) (2002). The district court sentenced Williams to 84 months’ imprisonment, an upward durational departure from the 48-month presumptive guidelines sentence, based on the district court’s determination that the offense involved “particular cruelty.” This appeal followed.

D E C I S I O N

In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the United States Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 542 U.S. at ญญญ___, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63). The Blakely courtheld that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at ___, 124 S. Ct. at 2537. Accordingly, the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at ___, 124 S. Ct. at 2543. Blakely announced a new constitutional rule that was not dictated by the holding of Apprendi. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). This new rule applies to Williams because her conviction and sentence were not final when Blakely was announced. Id.

Citing Blakely, Williams argues that the district court violated her Sixth Amendment right to a jury trial when it departed upward from the sentencing guidelines based on a judicial finding of aggravating factors. A challenge to the constitutionality of a sentence presents a question of law, which we review de novo. State v. Wolf, 605 N.W.2d 381, 386 (Minn. 2000). Williams maintains that, although she waived the right to have a jury determine the guilt phase of the proceeding, she did not waive the right to have a jury determine facts relating to her sentence, if convicted.

While “Blakely expressly permits a defendant to either stipulate to relevant facts or consent to judicial factfinding regarding sentencing factors,” State v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005), waiver of the right to a jury trial for the guilt phase of a criminal proceeding does not constitute waiver of the right to a jury determination in the sentencing phase of facts related to an upward departure, State v. Fairbanks, 688 N.W.2d 333, 336 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005); State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004). The waiver of a jury trial must be knowing, intelligent, and voluntary. State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). The defendant must be fully informed of his or her rights and, free from any coercion, decide to waive them. Id. Because Williams was sentenced 13 days prior to the announcement of the new rule in Blakely, Williams could not have been informed of her right to a jury determination of aggravating factors for sentencing. As a result, Williams’s jury-trial waiver does not constitute a valid waiver of her right to a jury determination of sentencing factors. See Fairbanks, 688 N.W.2d at 336.

During the sentencing hearing, the district court articulated its reasons for imposing an upward departure based on particular cruelty. Minn. Sent. Guidelines II.D.2.b.(2). The district court found that this case was atypical because the dehydrated child was beaten when he asked for water. The district court also based its finding of particular cruelty on a letter submitted by the state’s expert, Dr. Rich Kaplan. Dr. Kaplan did not testify during the guilt phase of the trial, nor was his letter introduced into evidence. In the absence of a valid waiver, this judicial fact-finding for the purpose of imposing an upward departure violates the holding in Blakely.

Relying on United States v. Booker, 125 S. Ct. 738 (2005), the state argues that Blakely does not apply to the Minnesota Sentencing Guidelines because they are merely advisory. But the Minnesota Supreme Court recently rejected this argument, holding that the Minnesota Sentencing Guidelines are not advisory and that “imposition of the presumptive sentence is mandatory absent additional findings.” Shattuck, 704 N.W.2d at 141. The state also argues that Booker requires us to review Blakely errors under a plain-error analysis. We disagree. We have held that an appellant is “entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial.” Fairbanks, 688 N.W.2d at 337. We did not apply a plain-error analysis to the Blakely error in Fairbanks, nor did the Minnesota Supreme Court address the issue in its recent Shattuck decision. The instant case reaches us in the same posture as Shattuck and Fairbanks, in that Blakely was released subsequent to the defendant’s sentencing but before direct-appeal rights had been exhausted. Accordingly, we decline to apply a plain-error analysis here.

Because the conviction and sentence at issue were not final when Blakely was released, the new rule announced in Blakely applies. When the district court imposed a sentence that was an upward durational departure from the Minnesota Sentencing Guidelines based on judicial findings of fact, Williams’s Sixth Amendment right to a jury trial was violated. We, therefore, reverse the sentence imposed and remand for resentencing.

We are mindful that the Shattuck court did not outline procedures for resentencing under Blakely. See Shattuck, 704 N.W.2d at 148. And while acknowledging recently enacted legislation permitting sentencing juries and bifurcated trials, the Shattuck court declined to prescribe a specific remedy on remand. Id. & n.17. Similarly, we decline to mandate a specific procedure to remedy the sentencing error in this case. Rather, the determination of resentencing procedures shall rest with the district court on remand.

Reversed and remanded.