This opinion will be unpublished and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

A05-1577

 

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Lloyd Williams,

Appellant.

 

 

Filed August 22, 2006

Reversed and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 04072887

 

 

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 6th Street, Minneapolis, MN 55487  (for respondent)

 

Melissa Sheridan, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his judgment of conviction and sentence for third-degree criminal sexual conduct, arguing that he did not validly waive his right to a jury trial on aggravating sentencing factors.  Because appellant did not explicitly waive his rights to testify and to call and cross-examine witnesses, we reverse and remand for resentencing.

FACTS

            In November 2004, appellant Thomas Lloyd Williams was charged with one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2004); the complaint was later amended to include two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(c), 1(e)(i) (2004).  The state conditionally agreed to dismiss the two first-degree criminal-sexual-conduct counts if appellant agreed to a stipulated-facts trial on the third-degree count.  Appellant and the state also agreed that the sentencing range for the offense would be between 48 and 96 months, despite a presumptive sentence of 48 months under the Minnesota Sentencing Guidelines.  Appellant signed the following waiver:

Having been advised by the Court of my right to trial by jury . . . and having had an opportunity to consult with counsel, I do hereby, with the approval of this Court, waive my right to trial by jury.  I also acknowledge and waive my right to testify at trial, to have the prosecution witnesses testify at trial, to have the prosecution witnesses testify in open court in my presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for me in court.

 

            In a hearing, the prosecutor outlined the terms of the agreement; after stating that the agreed-on sentencing range would be 48-96 months, the prosecutor indicated that appellant would “waiv[e] his Blakely rights on that regard as well.”  Under questioning from his attorney, appellant indicated that the prosecutor had correctly represented his understanding of the agreement:

Defense attorney:       Mr. Williams, you heard the prosecutor tell the Judge what he thinks is going on today. . . .  Is what he represented how you understand things are going to happen?

 

                                    Appellant:                     Yes.

 

Appellant further agreed that the judge would have the power to impose a sentence ranging between 48 and 96 months. 

            During that hearing, in agreeing to submit the case to the court on stipulated facts, appellant explicitly waived his right to a jury trial, along with his rights to testify and to call witnesses to testify on his behalf.  There was no similar explicit oral waiver of those rights with regard to the determination of aggravating sentencing factors.  Appellant was informed on the record of his right to have a jury determine the existence of aggravating sentencing factors; he waived that right and agreed to give the judge the power to make that determination.  Appellant was not informed on the record of his rights to testify, call witnesses to testify, or cross-examine those witnesses with regard to the sentencing portion of the proceedings, and he did not orally waive those rights.

The district court found appellant guilty of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c).  Departing upwardly based on the invasion of the victim’s zone of privacy and the multiple acts of nonconsensual penetration, the district court sentenced appellant to anexecuted term of 72 months with a 5-year conditional-release period.  This appeal follows. 

D E C I S I O N

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), because appellant did not personally and explicitly waive his rights to testify, to have prosecution witnesses testify, to cross-examine prosecution witnesses, and to require favorable witnesses to testify on his behalf.  We review the constitutional issue presented by the application of Blakely de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  

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.  If factual findings (except the fact of a prior conviction) are required to justify a sentence greater than that maximum, the Sixth Amendment requires that those facts be found by a jury unless the defendant has made a knowing and intelligent waiver of that right.  Id.at 2536-37.  Blakely applies to upward durational departures from the presumptive sentence under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005).

Before submitting a case to a district court for a trial on stipulated facts, a defendant must waive certain specific fundamental rights, including “therights to testify at trial, tohave 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). 

            The supreme court has held that “a defendant must expressly, knowingly, voluntarily, and intelligently waive his right to a jury determination of facts supporting an upward sentencing departure,” and that a defendant’s admissions, without this valid waiver, are not sufficient under Blakely.  State v. Dettman, ___ N.W.2d ___ (Minn. Aug. 10, 2006); see also Hagen, 690 N.W.2d at 158-59.  And 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, in State v. Thompson, this court held that a knowing, voluntary, and intelligent waiver of certain fundamental rights that inhere in a stipulated-facts court trial must include the waiver of “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.”  694 N.W.2d 117, 122 (Minn. App. 2005) review granted (Minn. June 28, 2005) (emphasis omitted) (quotation omitted).  Citing the principle that sentencing factors and offense elements are treated the same under the Sixth Amendment, the Thompson court held that even when a defendant waives his right to a jury determination of aggravating sentencing factors, that waiver is invalid unless the defendant “explicitly acknowledge[s] and waive[s]” the accompanying rights to testify and call and cross-examine witnesses.  Id.

Here, while appellant specifically waived the rights to testify and call and cross-examine witnesses with regard to the determination of his guilt, he did not make a specific, point-by-point waiver of those rights as they apply to the determination of the existence of aggravating sentencing factors.  Because appellant did not explicitly acknowledge and waive those rights, we conclude that his waiver was invalid, and we reverse his sentence.  We remand for resentencing consistent with Thompson and the Minnesota Supreme Court’s decision in Shattuck.    

Because we reverse the sentence on these grounds, we do not reach appellant’s remaining arguments.

            Reversed and remanded.