Filed January 3, 2006

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge

Lincoln County District Court

File No. K3-03-192

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

Glen A. Petersen, Lincoln County Attorney, P.O. Box 671, 225 North Tyler, Tyler, MN 56178 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijô, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

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

GORDON W. SHUMAKER, Judge

Appellant contends that his convictions of kidnapping and assault were the product of a violation of his right to a speedy trial and must be set aside, and that his sentence violated his right to a jury trial. We affirm the convictions but reverse and remand for resentencing.

FACTS

In the Lothenbach trial underlying this appeal, appellant Jary Glenn Goodrich stipulated to a complaint and attachments that alleged that Goodrich held five people hostage at gunpoint inside a Lake Benton Township residence; that he pointed a gun at the county sheriff who responded to a 911 call from the residence; that he told the sheriff he would kill the hostages if the sheriff did not leave the property; and that he ultimately surrendered without physically harming any of the hostages or the sheriff.

The state charged Goodrich with 12 counts, including kidnapping, burglary, and assault. As part of the Lothenbach agreement, the state dismissed nine counts and a bench trial was held on kidnapping, first-degree assault, and second-degree assault. The district court found Goodrich guilty of all three charges.

The parties had also agreed that if the district court found Goodrich guilty, he would receive concurrent executed sentences of 78 months for kidnapping, 39 months for second-degree assault, and 122 months for first-degree assault, which the parties erroneously believed to be the respective presumptive sentences under the sentencing guidelines.

When the district court advised the parties that the sentences to which they had agreed were inconsistent with the guidelines, defense counsel informed the court that he had discussed that fact with his client and that Goodrich wished to proceed with the sentences to which the parties had agreed. The court then imposed sentences in accord with the agreement, noting that the 122-month sentence for first-degree assault was an upward durational departure from the sentencing guidelines but was justified by the facts that there were multiple victims, the victims were particularly vulnerable, and that the crimes were committed in the victims’ zone of privacy. Goodrich contends that the other two sentences were durational departures as well, and he challenges all departures on appeal.

In his pro se supplemental brief, Goodrich contends that his convictions cannot stand because he was denied his right to a speedy trial. He requested a rule 20 examination, which the court ordered on December 31, 2003, two days after Goodrich was charged with the crimes. The rule 20 report was not submitted until April 30, 2004. The court denied Goodrich’s several motions to dismiss the charges during the pendency of the rule 20 report completion.

D E C I S I O N

1. Sentences

The district court acknowledged that its sentence for the first-degree assault conviction was an upward durational departure that was supported by judicial fact-determination. The parties are in dispute as to whether the other two sentences constitute upward departures.

Goodrich contends that any upward departure based on judicial fact-findingdeprived him of his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We review constitutional challenges de novo. State v. Johnson, 689 N.W.2d 247, 253 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)). The statutory maximum sentence is the longest sentence a judge may impose solely on the basis of the verdict, without any additional fact-finding or admission by a defendant. Id. at 303-04, 124 S. Ct.at 2537. Under the Minnesota Sentencing Guidelines, the Blakely statutory maximum is the presumptive sentence for the crime in question. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005) (as amended on petition for rehearing). We have previously held that the Blakely rule applies to Lothenbach trials. Johnson, 689 N.W.2d at 253. A stipulation to facts offered to prove the elements of a charge waives only the right to a jury trial as to those elements but does not waive the right of jury trial as to aggravating factors that might be used for sentencing. Id.at 254. And Goodrich did not otherwise expressly waive on the record his right to a jury trial on the departure factors the court relied upon. Thus, Goodrich’s sentence is constitutionally invalid.

The state argues that despite the invalidity of the sentence, Goodrich has failed to demonstrate prejudice under a plain-error analysis, and, thus, his challenge must fail. Although Goodrich did not object to the departure at the time of his sentencing, precedent establishes that a plain-error analysis is not applicable to the type of constitutional challenge Goodrich asserts. See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (defendant is “entitled” to benefit from new rule of procedure announced during pendency of his case); State v. Senske, 692 N.W.2d 743, 746 (Minn. App. 2005) (post-Booker case reversing durational departure without using plain-error analysis), review denied (Minn. Aug. 17, 2005); State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004) (defendant entitled to benefit of Blakely “even though he did not assert his Sixth Amendment rights at trial by objecting on Apprendi grounds”), review granted (Minn. Jan. 20, 2005). Accordingly, we remand for resentencing under Blakely and Shattuck.

Speedy Trial

Appellant claims that he was denied his Sixth Amendment right to a speedy trial because of a 60-day delay in filing a written rule 20 evaluation and that he was denied an adequate opportunity to be heard on this claim. This court reviews constitutional questions de novo. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).

In determining whether a delay amounts to a deprivation of the right to a speedy trial, the court must consider (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his or her right to a speedy trial, and (4) whether the delay prejudiced the defendant under the circumstances of the case. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192 (1972)). “The length of the delay is a ‘triggering mechanism’ which determines whether further review is necessary.” Id. (citing Barker, 407 U.S. at 530-31, 92 S. Ct. at 2192). In Minnesota, a delay beyond 60 days from the date of demand is “presumptively prejudicial.” State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).

The district court found that Goodrich was not denied his right to a speedy trial for four reasons. First, the length of the delay was limited to the 60 days between the time the rule 20 evaluation was completed, around March 1, 2004, to April 30, 2004, the day the evaluation was received. Second, the delay in submission of the examination resulted from the examiner changing employment and not from any conduct by the state. Third, appellant “had not, as of that time, asserted his right to a speedy trial.” Lastly, Goodrich suffered no prejudice from the delay. The record fully supports these determinations. Additionally, even in cases where the delay was much longer than in the present case, Minnesota courts have concluded that there was not a denial of a right to a speedy trial. See State v. Helterbridle, 301 N.W.2d 545, 546 (Minn. 1980) (17-month delay in bringing defendant to trial was not deprivation of his right to a speedy trial); State v. Brouillette, 286 N.W.2d 702, 706 (Minn. 1979) (11-month delay was not found is violation of right to a speedy trial); State v. Huddock, 408 N.W.2d 218, 221 (Minn. App. 1987) (three-month delay was not found to violate right to speedy trial).

Finally, Goodrich contends in his pro se supplemental brief that the district court did not give him an adequate opportunity to demonstrate prejudice from the alleged delay in the return of the rule 20 report. The record shows that the court provided him with ample opportunity to assert all proper claims and to participate fully in his case. Thus, we reject his speedy-trial claim and affirm the convictions.

Affirmed in part, reversed in part, and remanded.