STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1278

State of Minnesota,

Respondent,

vs.

Henry Moore, Jr.,

Appellant.

Filed August 8, 2006

Reversed and remanded

Shumaker, Judge

Concurring in part, dissenting in part, Ross, Judge

Ramsey County District Court

File No. K2-04-2731

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

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.

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

SHUMAKER, Judge

Appellant Henry Moore, Jr. challenges the district court’s imposition of an enhanced 360-month sentence for criminal sexual conduct in the first degree on the ground that the sentence was imposed under a statute that has been declared unconstitutional by the Minnesota Supreme Court. Because the sentence was imposed under a statute declared unconstitutional, we reverse and remand to the district court for resentencing.

FACTS

By amended complaint filed on November 23, 2004, the state charged appellant Henry Moore, Jr. with kidnapping, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (2004), and first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(e)(i), 2(a) (2004). The complaint alleged that at approximately 12:30 on the morning of July 18, 2004, Moore abducted L.J.R., an adult woman, in front of a bar in St. Paul, forced her into his car, drove to a park, and raped her. Moore pleaded not guilty.

A jury found Moore guilty as charged. Immediately after the jury returned its verdicts, the district court asked it to determine whether the state had proved beyond a reasonable doubt that Moore, among other things, had “committ[ed] multiple penetrations of [L.J.R.].” The jury answered in the affirmative.

Before sentencing, the state brought a motion pursuant to Minn. Stat. § 609.109, subd. 4 (2004), which requires that the district court impose a 30-year minimum sentence for certain repeat sex offenders if it finds, at the time of sentencing, that an aggravating factor exists that provides grounds for an upward departure under the Minnesota Sentencing Guidelines.

The presumptive guidelines sentence for the kidnapping conviction was 68 months; the presumptive sentence for the criminal-sexual-conduct conviction was 146 months. Under Minn. Stat. § 609.035, subd. 6 (2004), consecutive sentences imposed for a violation of section 609.342 and another crime committed as part of the same conduct are not a departure from the sentencing guidelines.

The district court sentenced Moore to the presumptive 68-month prison term for kidnapping and to an enhanced 360-month (30-year) term for first-degree criminal sexual conduct pursuant to section 609.109, subdivision 4, and ordered the sentences to be served concurrently. The court justified the enhanced sentence by reference to the uncontested fact of a previous sex-offense conviction and to the jury’s finding that Moore’s crime involved multiple penetrations, an aggravating sentencing factor under section 609.109, subd. 4(i). This appeal follows.

D E C I S I O N

Moore argues that the enhanced sentence imposed pursuant to Minn. Stat. § 609.109, subd. 4 (2004), must be reversed because the Minnesota Supreme Court has held that statute to be facially unconstitutional. We agree.

The Minnesota Supreme Court struck down this statute in State v. Shattuck, holding that

[b]ecause section 609.109, subdivision 4, and Minn. Sent. Guidelines II.D authorize the district court to make such an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury, we hold that the statute is facially unconstitutional and section II.D of the guidelines is unconstitutional as applied.

704 N.W.2d 131, 142 (Minn. 2005).

Following Shattuck, we reverse Moore’s sentence and remand to the district court for resentencing. Id. at 148 (reversing a sentence imposed under 609.109, subdivision 4, and remanding for resentencing). As to our instruction to the district court on remand, we observe that in Shattuck, the court concluded that although it “has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process” to remedy Blakely violations, it would nonetheless “proceed cautiously in exercising that authority in order to respect the equally unique authority of the executive and legislative branches of government over their constitutionally authorized functions.” Id. at 147-48. The court then “remand[ed] [the] case to the district court for resentencing consistent with this opinion” without specifying whether this instruction required the district court to impose the presumptive guidelines sentence or left it free to consider other sentencing dispositions. Id. at 148. We recognize that this court has recently held, in light of State v. Barker, 705 N.W.2d 768, 768 (Minn. 2005), that Shattuck should be read as limiting the remedy in this situation to the imposition of the presumptive sentence. See State v. Hobbs, 713 N.W.2d 884, 890(Minn. App. 2006) (directing the district court to correct a sentence imposed in violation of Blakely by imposing the presumptive sentence under the Minnesota Sentencing Guidelines). We respectfully believe that directive to misconstrue the constraint established in Blakely, as interpreted by Shattuck.

When the supreme court stated in Shattuck that it did not have the authority to “engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines,” it was recognizing that the Minnesota Sentencing Guidelines are a legislative creation and that the judiciary has no authority to alter legislation. Shattuck, 704 N.W.2d at 148. But while the sentencing guidelines may be a legislative creation, sentencing departures have historically been within the inherent powers of the judiciary and were, prior to the 2005 sentencing legislation (Minn. Stat. § 244.10, subd. 5 (Supp. 2005)), expressly outside the domain of the legislatively created Minnesota Sentencing Guidelines. Therefore, on remand, the district court here should have the opportunity, consistent with its judicial authority as constrained by Blakely and articulated in Shattuck, to determine whether Moore is entitled to the presumptive sentence or whether another sentencing disposition is available. See State v. Henderson, 706 N.W.2d 758, 763 (Minn. 2005) (after Barker, applying Blakely to the career-offender statute and reversing and remanding with instructions to the district court to proceed with “resentencing consistent with Shattuck”).

Reversed and remanded.

ROSS, Judge (concurring in part, dissenting in part)

I agree that Moore’s sentence must be reversed and remanded, but I write separately to note that I believe that Blakely and Apprendi, as interpreted by Shattuck and Barker, limit the remedy on remand to the imposition of the presumptive sentence. To the extent the majority invites the district court to impanel a sentencing jury to consider a sentence enhancement, I respectfully dissent. The majority extends the invitation relying entirely on Shattuck. Although Shattuck might arguably have left open the question of whether resentencing “consistent with” that opinion could include remedies other than the imposition of the presumptive guidelines sentence, I believe that Barker subsequently determined that it could not. 705 N.W.2d 768, 773 n.1, 775-76 (Minn. 2005).

In Barker, the supreme court reversed a sentence imposed under a statute rendered unconstitutional by Blakely, just as we do today. But with respect to the appropriate remedy, the Barker court rejected the state’s suggestion to “remand to the district court for resentencing, with directions that the district court impanel a jury to determine the [statutory enhanced-]sentencing factors.” Id. at 775. Instead, the supreme court remanded with specific, restrictive direction: “for imposition of a sentence within the presumptive range.” Id. at 776. The reason for this resentencing restriction could not be more clear. The Barker court explained, “In Shattuck, we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury.” Id. at 775. The court determined that there was no legislative authorization for a district court to impanel a resentencing jury for the purpose of imposing an upward departure from the presumptive sentence under section 609.11, and, therefore, on remand the district court could not impanel a separate sentencing jury. Id. at 776; see also Henderson, 706 N.W.2d at 763 (declining to “engraft onto the sentencing guidelines and sentencing statutes a requirement for sentencing juries or bifurcated trials, for to do so would require us to rewrite those guidelines and statutes”). Quite plainly, the majority today reads Shattuck to confer on the district court the very resentencing authority that the supreme court in Barker read Shattuck to prohibit. As much as it may seem that the district court ought to be free to exercise the inherent authority to engage juries for sentencing when procedurally necessary to remedy either a constitutional or statutory gap, for the reasons I expressed in State v. Greer, No. A05-552, 2006 WL 1704059, *7-*10 (Minn. App. June 20, 2006), I believe the supreme court has determined the question otherwise.

In Moore’s case, the presumptive guidelines sentence for the kidnapping conviction was 68 months; the presumptive sentence for the criminal-sexual-conduct conviction was 144 months. Under Minn. Stat. § 609.035, subd. 6 (2004), consecutive sentences imposed for first-degree criminal-sexual conduct and for another crime committed as part of the same conduct do not constitute a departure from the sentencing guidelines. It would therefore appear that Moore’s presumptive sentence is 212 months, which, it seems to me, is the only sentence that Shattuck, as applied and explained in Barker, would allow.