This opinion will be unpublished and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

A04-2181

 

State of Minnesota,
Respondent,

vs.

James P. Edgerton,
Appellant.

 

Filed March 7, 2006

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Pine County District Court

File Nos. K5-04-184, K8-03-475, K5-03-983

 

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

John Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Pine City, MN  55063 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Presiding; Wright, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

In this sentencing appeal, appellant argues that the district court abused its discretion by imposing an upward durational departure on one count of second-degree burglary based on the career-offender statute and that judicial imposition of a three-month sentence enhancement based on his custody status violates the Sixth Amendment right to a jury trial as recognized in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  We affirm in part, reverse in part, and remand.

FACTS

On August 18, 2004, the district court sentenced appellant James Edgerton to a total of 213 months’ imprisonment for four counts of second-degree burglary.  The district court imposed the presumptive sentence of 48 months’ imprisonment for the first two counts.  On the third count, the district court applied a custody-status point to enhance Edgerton’s sentence from the presumptive duration of 48 months’ imprisonment to 51 months’ imprisonment.  On the fourth count, the district court applied the custody-status enhancement and departed upward based on the career-offender statute, imposing a sentence of 66 months’ imprisonment.  Edgerton appeals the nonpresumptive sentences imposed on the third and fourth counts.

D E C I S I O N

I.

 

            The decision to depart from the sentencing guidelines rests within the district court’s discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  But the district court must impose the presumptive guidelines sentence unless there are grounds for departure.  Minn. Sent. Guidelines II.D.  Application of the career-offender statute to undisputed facts presents a question of law, which we review de novo.  Freundschuh v. Freundshuh, 559 N.W.2d 706, 709 (Minn. App. 1997), review denied (Minn. Apr. 24, 1997).  The career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002), [1] permits the district court to depart from the presumptive guidelines sentence if the defendant has five or more prior felonies and the present felony is part of a pattern of criminal conduct. 

Edgerton argues that the district court erred when it imposed a sentence of 66 months’ imprisonment for count four because Edgerton did not have the requisite number of prior felonies.  The state concedes that the district court erred in imposing this sentence.  Indeed, our opinion in State v. Huston clarifies that, to be classified as a career offender, a defendant must have a record of five sequential felony offenses and convictions.  616 N.W.2d 282, 283 (Minn. App. 2000).  Using the counting method set forth in Huston, id. at 284, Edgerton had fewer than five sequential prior felony convictions when he was sentenced in August 2004.  As such, he did not qualify as a career offender, and the district court’s departure on that ground is erroneous.

II.

Edgerton also maintains that the district court erred when, based on his custody status, it imposed a three-month enhancement to the sentences on counts three and four.  Under the Minnesota Sentencing Guidelines, the duration of an offender’s sentence may be enhanced through the assignment of a custody-status point if the offender “was released pending sentencing at the time the felony was committed . . . .”  Minn. Sent. Guidelines II.B.2.b.  Edgerton asserts that this sentence enhancement violates the rule announced in Blakely because it is based on a fact not found by a jury or admitted by the defendant.  Under Blakely, 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.”  542 U.S. at ___, 124 S. Ct. at 2537 (emphasis in original).  A 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 2536.   

A challenge to the constitutionality of a sentence presents a question of law, which we review de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  The Minnesota Supreme Court’s recent decision in State v. Allen, 706 N.W.2d 40 (Minn. 2005), governs this issue.  In Allen, the supreme court held that the assignment of a custody-status point is analogous to Blakely’s exception for the fact of a prior conviction.  Id. at 48.  Accordingly, Blakely does not mandate that a jury find, or a defendant admit, the basis for imposing a custody-status sentence enhancement.  Id.  Because Edgerton does not contest the factual basis for imposing the custody-status point, the district court did not err in imposing a three-month sentence enhancement on this ground.

We, therefore, affirm the district court’s custody-status enhancement of Edgerton’s sentence on counts three and four, reverse the district court’s durational departure on count four, and remand for resentencing.

Affirmed in part, reversed in part, and remanded.