This opinion will be unpublished and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

A04-2142

 

 

State of Minnesota,

Respondent,

 

vs.

 

William Larry Armstrong,

Appellant.

 

 

Filed January 17, 2006

Reversed and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 04001405

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Lydia Lillalva Lijó, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from a conviction of second-degree unintentional felony murder and a 400-month prison sentence, appellant argues that his waiver of his Sixth Amendment right to a jury trial on facts authorizing an increased sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and its Minnesota progeny because appellant did not personally and explicitly waive his rights under Minn. R. Crim. P. 26.01, subd. 3.  Because we conclude that appellant’s waiver was invalid, we reverse and remand for resentencing.

FACTS

            In 2003, appellant William Larry Armstrong had a relationship and lived with Amy Lawver, mother of three-year-old K.L.  On November 1 of that year, Lawver left K.L. in appellant’s care while she ran an errand; K.L. was injured when she returned.  Appellant claimed that K.L. had fallen from a rock retaining wall.  Lawver bathed K.L., who stiffened and suffered a seizure.  Appellant and Lawver then drove K.L. to Methodist Hospital, where doctors determined that he was suffering from cerebral edema.  K.L. died the next day.  His autopsy revealed multiple blunt-force-trauma injuries to the head, torso, and extremities, and K.L.’s death was ruled a homicide. 

            On January 8, 2004, a grand jury indicted appellant on Count I, first-degree murder in violation of Minn. Stat. § 609.185(a)(6) (2004), and Count II, second-degree (unintentional) felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2004).  The state offered to dismiss Count I if appellant pleaded guilty to Count II and also offered a choice between two sentencing options:  (1) a range between 360 and 450 months, with the exact sentence to be decided by the judge, or (2) a 400-month sentence. 

            Appellant agreed to a stipulated-facts trial on Count II and waived his right to a jury trial on guilt and on aggravating factors authorizing an upward departure in his sentence.  Appellant stipulated to the aggravating factors authorizing the increased sentence and agreed to a 400-month sentence.  Appellant did not waive his rights to testify, to have witnesses testify for the defense, or to call and question prosecution witnesses in his waiver of a jury trial for the aggravating sentencing factors. 

            The district court convicted appellant of second-degree unintentional felony murder and sentenced him to 400 months in prison.  The sentence represents an upward durational departure of 250 months, as appellant’s presumptive sentence for second-degree unintentional felony murder was 150 months, based upon his criminal-history score of zero and the offense severity level of ten.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that his waiver of his Sixth Amendment right to a jury trial on facts authorizing an increased sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and its Minnesota progeny because appellant did not personally and explicitly waive his rights under Minn. R. Crim. P. 26.01, subd. 3, including “the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.”

            The appeal of appellant’s sentence under the Minnesota Sentencing Guidelines presents a constitutional issue, which this court reviews de novo.  State v. Robinson, 699 N.W.2d 790, 800 (Minn. App. 2005), review granted (Minn. Sept. 28, 2005).

            The state argues that appellant waived his Blakely challenge to the durational departure by failing to object to it at sentencing.  See State v. Leja, 684 N.W.2d 442, 447-48 n.2 (Minn. 2004).  In Leja, however, the supreme court reduced the upward departure on other grounds.  Id. at 450.  Further, Blakely was not released until after Leja had been argued.   Id. at 447 n.2.  And 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), and order granting review vacated (Minn. Dec. 13, 2005). 

            Additionally, 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).  Because this direct appeal was filed after Blakely’s effective date, appellant is not seeking retroactive application of Blakely, and the parties have briefed the Blakely issue on appeal; appellant is entitled to the benefit of Blakely.  See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (effective date); Fairbanks, 688 N.W.2d at 337 (retroactivity and briefing).

            In Blakely, the Supreme Court held that the greatest sentence that a judge may 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.”  Blakely, 542 U.S. at 303, 124 S. Ct. at 2537.  Therefore, if factual findings (except the fact of a prior conviction) are required to justify a sentence greater than that maximum, absent a knowing and intelligent waiver by the defendant, the Sixth Amendment requires that those facts be found by a jury.  Id.at 2536-37.  The Minnesota Supreme Court has held that Blakely applies to upward durational departures from the presumptive sentence under the Minnesota Sentencing Guidelines.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). 

            This court has noted that an admission of an aggravating factor amounts to a waiver of a constitutional right to a jury trial on the sentencing issue and that “the waiver of a constitutional right must be knowing, voluntary, and intelligent.”  State v. Hagen, 690 N.W.2d 155, 158-59 (Minn. App. 2004).  Before submitting a case to a district court for a trial on stipulated facts, a defendant must waive certain specific fundamental rights, including “the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.”  Minn. R. Crim. P. 26.01, subd. 3.  The waiver rule is strictly construed, State v. Halseth, 653 N.W.2d 782, 784 (Minn. App. 2002), and applies when a defendant stipulates to an element of an offense, State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).  There is “no basis to distinguish a stipulation to an aggravating sentencing factor from a stipulation to an element of the offense.”  Hagen, 690 N.W.2dat 159.  Thus, this court has been very clear in holding that even where—as here—a defendant waives his right to a jury trial on aggravating sentencing factors, that waiver is not knowing, voluntary, and intelligent, and is therefore invalid, unless the defendant “explicitly acknowledge[s] and waive[s] [his] right to testify, to have prosecution witnesses testify, to question the prosecution witnesses, and to require favorable witnesses to testify in [his] defense.”  State v. Thompson, 694 N.W.2d 117, 123 (Minn. App. 2005), review granted (Minn. June 28, 2005).

            While appellant urgesthis court to reverse his sentence under Thompson, respondent contends that Thompson was wrongly decided and questions Thompson’s precedential valuein light of the Minnesota Supreme Court’s decision to grant review.  But because there is no present indication that Thompson is not good law, we follow the logic of Thompson.  See generally State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005) (agreement “in concept” with our holding in Hagen that a Blakely waiver “requires the same support as a waiver of the right to a jury trial on the elements of the offense”).

            We conclude that appellant’s waiver of his right to a jury trial on aggravating sentencing factors is invalid because it did not explicitly acknowledge and waive his rights to testify, to call certain witnesses, and to question those witnesses as set forth in Minn. R. Crim. P. 26.01, subd. 3.  Because we reverse appellant’s sentence on these grounds, we do not reach appellant’s argument concerning the district court’s failure to make written findings. 

            Appellant contends that he is entitled to the presumptive sentence on remand, arguing that the court lacks authority to impose an upward durational departure because there was no established procedure for a sentencing jury.  The appropriate remedy on remand is currently an unsettled area of the law.  The supreme court recently stated that

[t]he power to fix the limits of punishment for criminal acts lies with the legislature, but the imposition of a sentence in a particular case within those limits is a judicial function. . . . [W]e leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.

 

State v. Shattuck, 704 N.W.2d 131, 148 (Minn. 2005), pet. for reh’g granted (Minn. Oct. 6, 2005) (citations omitted).  The supreme court in Shattuck also acknowledged recent legislative enactments regulating sentencing departures through the use of sentencing juries and bifurcated trials.  Id. at n.17 (citing 2005 Minn. Laws ch. 136, art. 16, § 4 (West)).  The court noted that these changes “apply both prospectively and to resentencing hearings.”  And while the court expressed no opinion concerning the changes, it did not “foreclose the district court from considering any . . . available laws on remand.”  Id.  We remand for resentencing consistent with Thompson and the Minnesota Supreme Court’s decision in Shattuck. 

            Reversed and remanded.