STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2117

State of Minnesota,

Respondent,

vs.

Alan T. Enger,

Appellant

Filed August 15, 2006

Reversed and Remanded

Ross, Judge

Concurring in part, dissenting in part, Shumaker, Judge

Hennepin County District Court

File No. 04080840

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414-3097 (for appellant)

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

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

ROSS, Judge

Appellant Alan Theodore Enger challenges his enhanced sentence imposed under Minnesota Statutes § 609.1095, subdivision 2 (2004) (the dangerous-offender statute), arguing that because the statute is facially unconstitutional, his sentence must be reversed and the matter must be remanded to the district court for resentencing. Because section 609.1095, subdivision 2, is unconstitutional, we reverse and remand for resentencing.

FACTS

The state charged Enger with felony second-degree arson in violation of Minnesota Statutes § 609.562 (2004). The complaint alleged that he intentionally set fire to a residence, causing over $100,000 in damage.

Enger pleaded guilty to this offense based on an agreement in which, in the words of his counsel, Enger would “waive any rights under the Blakely decision, and at the time of sentencing, or before sentencing, perhaps, the prosecutor could argue for an upward departure and we could argue that there should be no departure.” The prosecutor explained that under the agreement, the state would seek an upward departure based on Minnesota Statutes § 609.1095, subdivision 2, which allows the court to “impose an aggravated durational departure from the presumptive imprisonment sentence” based on a judicial finding that a convicted criminal is a “danger to public safety.”

The district court sentenced Enger to 120 months in prison—the statutory maximum—after finding on the record and beyond a reasonable doubt the criteria set forth in section 609.1095, subdivision 2, that Enger was over 18, that he was guilty of the charged offense, that he had two or more prior convictions for violent crimes, and that he is a danger to public safety based on his past criminal behavior. The court also determined that Enger was ineligible for supervised release. This appeal follows.

D E C I S I O N

Enger argues that this court must reverse his sentence as unauthorized by law because section 609.1095, subdivision 2, under which his sentence was enhanced, is facially unconstitutional. We agree.

Recent constitutional interpretation imposes new limits on the role of a district court judge in making sentencing decisions. In Blakely v. Washington, the United States Supreme Court held that, under the Sixth Amendment, a district court can issue only the maximum sentence warranted by facts as determined by a jury or admitted by the defendant. 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004). The Minnesota Supreme Court has interpreted Blakely to limit a sentence, absent facts determined by a jury or admitted by the defendant, to “the presumptive sentence prescribed by the Minnesota Sentencing Guidelines.” State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).

This constitutional development may also result in invalidating sentencing statutes. This court recently relied on Blakely and Shattuck to hold that section 609.1095, subdivision 2, is unconstitutional because it specifically authorizes an enhanced sentence based on a judicial finding that the offender is a “danger to public safety.” State v. Hobbs, 713 N.W.2d 884, 889-90 (Minn. App. 2006). Because Enger’s sentence as enhanced under that unconstitutional statute is correspondingly unauthorized by law, we must reverse it and remand the case to the district court for resentencing. See Shattuck, 704 N.W.2d at 148 (reversing and remanding for resentencing after determining that the basis for the durational departure was an unconstitutional statute).

In reversing Enger’s sentence, we also specify our instruction to the district court on remand. The Shattuck court, in considering its remand instruction, 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 not act on that authority. Id. at 147-48. Instead, it announced that it would “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 (quotation omitted). The court “remand[ed] [the] case to the district court for resentencing consistent with [its] opinion.” Id. at 148. The supreme court did not expressly indicate how the district court should make the resentencing determination.

While Shattuck did not decide whether resentencing “consistent with” that opinion could include a remedy other than imposition of the presumptive guidelines sentence, State v. Barker later held that it could not. 705 N.W.2d 768, 773, 775-76 & n.1 (Minn. 2005). The Barker court reversed a sentence imposed under a statute rendered unconstitutional by Blakely, observed that “[i]n Shattuck, we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury,” and remanded specifically “for imposition of a sentence within the presumptive range.” Id. at 775-76. Because we are compelled to follow Barker in this reversal of Enger’s sentence, we remand for resentencing consistent with the presumptive sentence in the Minnesota Sentencing Guidelines.

The unconstitutionality of section 609.1095, subdivision 2, resolves this appeal. We therefore do not address Enger’s challenge to his waiver of a jury determination of the sentence-enhancing findings.

Reversed and remanded.

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

I agree that Enger’s sentence must be reversed and remanded, and I concur with the majority in that respect. But I dissent from the majority’s determination that the district court must impose the presumptive sentence on remand. I do not believe that Blakely and Apprendi, as interpreted by Shattuck, strictly limit the dispositions available to the district court on remand to imposition of the presumptive guidelines sentence. As I explained in State v. Lushenko, 714 N.W.2d 729, 737 (Minn. App. 2006) (Shumaker, J., concurring specially), I believe that 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 simply recognizing that the Minnesota Sentencing Guidelines are a legislative creation and that the judiciary has no authority to alter legislation. State v. Shattuck, 704 N.W.2d 131, 148 (Minn. 2005). 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. I therefore believe that on remand, the district court should have the opportunity, consistent with its judicial authority as constrained by Blakely, to determine whether Enger is entitled to the presumptive sentence or whether another sentencing disposition is available.