This opinion will be unpublished and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

A06-437

 

State of Minnesota,

Respondent,

 

vs.

 

David Hearn,

Appellant.

 

Filed November 7, 2006

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00087369

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In this appeal from the sentence imposed for a second-degree criminal-sexual-conduct conviction, appellant David Hearn argues that the upward departure from the presumptive sentence violates the Sixth Amendment and unreasonably exaggerates the severity of the offense.  We affirm.

D E C I S I O N

            Appellant was convicted in 2000 of attempted criminal sexual conduct in the first degree (Count 1), criminal sexual conduct in the second degree (Count 2), and kidnapping (Count 3).[1] On appeal, this court reversed a life sentence stemming from Count 1; held that appellant could not be sentenced on both Count 1 and Count 2; and upheld the duration of the sentence on Count 3, but determined that it was to be served concurrently with the Count 1 or Count 2 sentence rather than consecutively.  State v. Hearn, 647 N.W.2d 27, 32-34 (Minn. App. 2002) (Hearn I), review granted (Minn. Sept. 17, 2002).  The supreme court stayed all proceedings pending final disposition of State v. Welch, 675 N.W.2d 615 (Minn. 2004) (regarding sentencing for kidnapping incidental to criminal sexual conduct).  Following the Welch decision, the supreme court remanded the case to this court in 2004.  State v. Hearn, No. C3-01-1318; 2004 WL 2283583, at *1 (Minn. App. Oct. 12, 2004) (Hearn II), review denied (Minn. Dec. 22, 2004).  While this court was considering the case on remand, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  This court then remanded the case to the district court for resentencing in light of Blakely.

Hearn II, 2004 WL 2283583, at *1.

            On remand, the district court resentenced appellant to the statutory maximum of 300 months on Count 2, a fivefold upward departure from the presumptive 58-month sentence.  The court relied on its 2001 judicial determination that appellant was a patterned sex offender, as defined in Minn. Stat. § 609.108 (1998), to justify the upward departure.  The district court also provided, as an alternative basis for appellant’s sentence, that he met the definition of a repeat sex offender under Minn. Stat. § 609.109 (1998).

            In this appeal, appellant argues that the district court’s resentencing on Count 2 violates his right to a jury trial under Blakely and, that even if the sentence does not violate Blakely, it unreasonably exaggerates the severity of his offense.

            Appellant argues that the district court violated his right to a jury trial under Blakely by judicially determining that he is a patterned sex offender and by relying on this determination to enhance his sentence.  In Blakely, the Supreme Court held that the greatest sentence a judge can impose is one based “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.  Blakely announced “a new rule of constitutional criminal procedure” applicable only to prospective cases and those then pending on direct review.  State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005).  Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines, State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005), and we have held that judicial findings required by the patterned-sex-offender statute violate the Sixth Amendment under Blakely, State v. Boehl, 697 N.W.2d 215, 222-23 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005). 

            Because appellant’s first appeal was pending before this court on remand from the supreme court when Blakely was handed down, appellant’s case was pending on direct review and the rule of Blakely applies.  And because the upward departure was based on judicial rather than jury findings under the patterned-sex-offender statute, following Boehl we conclude that appellant’s sentence violates the Sixth Amendment.

            But the district court provided as an alternative ground for the sentence, application of the repeat-sex-offender statute.  And even if the sentence based on the patterned-sex-offender statute is unconstitutional, the sentence can be upheld if the alternative basis is valid.  Appellant challenges the alternative basis, arguing that the district court’s use of appellant’s prior convictions in the alternative sentence under the repeat-sex-offender statute is unconstitutional because the prior-conviction-exception announced in Apprendi v. New Jersey, 530 U.S. 466, 466, 120 S. Ct. 2348, 2350 (1998), and reiterated in Blakely, 542 U.S. at 301, 124 S. Ct. at 2536, was wrongly decided and no longer commands a majority of Justices on the Supreme Court. We disagree.

            Although the continuing viability of the prior-conviction exception has been questioned, it has not been overruled.  Shepard v. United States, 544 U.S. 13, 27, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring).  Importantly,the Minnesota Supreme Court has expressly upheld the viability of the prior-conviction exception, noting that “after Blakely, the prior conviction exception recognized in Apprendi retains vitality and it is constitutional for a defendant’s sentence to be increased based on a prior conviction, without submitting the fact of the conviction to the jury.”  State v. Leake, 699 N.W.2d 312, 323 (Minn. 2005); see also State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (rejecting the claim that the assignment of a custody status point does not fall within the prior-conviction exception).  The court has declined to anticipate that the Supreme Court, because of a change in composition, will abandon the exception.  State v. McFee, 721 N.W.2d 607, 610 n.4 (Minn. 2006).  Because the prior-conviction exception retains vitality, the district court did not err by basing appellant’s alternative sentence on prior convictions under the repeat-sex-offender statute.

            Appellant also argues that the district court erred by imposing the alternative statutory maximum sentence because the repeat-sex-offender statute requires that the aggravating factor supporting an upward departure relate to the charged offense rather than past crimes.  We disagree.

            Appellant’s alternative sentence was imposed under the repeat-sex-offender statute, Minn. Stat. § 609.109, subd. 6.  The statute is applicable if (1) the defendant is convicted of a crime enumerated in the statute; and (2) “the court determines on the record at the time of sentencing that the crime involved an aggravating factor . . . under the Sentencing Guidelines.”  Minn. Stat. § 609.109, subd. 6 (1), (2).  Under the Minnesota Sentencing Guidelines, section II.D.2.b(3), if “[t]he current conviction is for a Criminal Sexual Conduct offense,” a prior criminal-sexual-conduct felony conviction can serve as an aggravating factor.  Appellant argues that the plain meaning of the repeat-sex-offender statute requires that the aggravating factor must relate to the current offense rather than previous crimes.  We disagree.

            Statutory construction is a question of law, which we review de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Because the guidelines list a prior conviction for a sex offense as an aggravating factor for a current sex-offense conviction, the plain meaning does not support appellant’s argument.  Further, if the legislature intended the construction appellant advocates, it would have made its intent clear, as it did in Minn. Stat. § 609.109, subd. 4 (2)(i), stating:

the crime involved an aggravating factor that would provide grounds for an upward departure under the sentencing guidelines other than the aggravating factor applicable to repeat criminal sexual conduct convictions.

   

Minn. Stat. § 609.109, subd. 4 (2)(i) (emphasis added).  Because the legislature chose not to adopt such language in the repeat-sex-offender statute, the district court did not err in using appellant’s prior convictions as an aggravating factor under the repeat-sex-offender statute.

            Appellant also argues that the district court’s upward departure to the statutory maximum sentence is unreasonable because it exaggerates the severity of his offense. “We review a sentencing court’s departure from the sentencing guidelines for abuse of discretion.”  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).

            The repeat-sex-offender statute requires a sentence of “at least twice the presumptive sentence recommended by the sentencing guidelines.”  Minn. Stat. § 609.109, subd. 6.  Here, the district court determined that imposition of the statutory maximum sentence was warranted because appellant had “more than the [required] single prior felony conviction for criminal sexual conduct.”  Appellant argues that, absent severe aggravating factors, the upper limit of an upward departure is twice the presumptive sentence under State v. Evans, 311 N.W.2d 481 (Minn. 1981).  But Evans concerned a departure from the Minnesota Sentencing Guidelines while appellant’s alternative sentence is based on the repeat-sex-offender sentencing-enhancement statute.  See generally id.  And when a sentencing-enhancement statute expressly provides for sentences up to the statutory maximum, severe aggravating factors are not required to impose a sentence beyond a double departure.  See Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003) (holding that a finding of severe aggravating factors is not required to impose more than a double durational departure under the dangerous-offender statute); State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993) (affirming the power of the legislature to create statutory grounds for increasing sentences beyond a double durational departure in an analysis of the career-offender statute). 

            Like the dangerous-offender statute, the repeat-sex-offender statute provides for sentences up to the statutory maximum without regard to severe aggravating factors. Thus, the district court did not need to base its statutory maximum sentence on severe aggravating factors.

            We recognize that sentencing-enhancement statutes do not envision the statutory maximum sentence in every case and that “courts should use caution when imposing sentences that approach or reach the statutory maximum sentence” to avoid disproportionate sentencing.  Neal, 658 N.W.2d at 546.  But we conclude that here, appellant’s sentence is not disproportionate.

            In Hearn I, this court analyzed whether appellant’s sentence exaggerated the severity of his offense under the patterned-sex-offender statute.  Hearn I, 647 N.W.2d at 32.  Although we are now analyzing the sentence under the repeat-sex-offender statute, appellant’s record has not changed, and the previous analysis remains persuasive.  In Hearn I we stated that:

Hearn has a 30-year history of predatory sex crimes.  He has undergone sex-offender treatment twice without success.  He has demonstrated a clear likelihood that he will reoffend. . . . In light of Hearn’s current conduct, his past predatory history, and caselaw approving substantial departures for similar crimes, the sentence did not exaggerate the criminality of Hearn’s offense.

 

Id. at 33 (citation omitted).

            The legislature provided for sentences of at least twice the presumptive sentence and up to the statutory maximum for offenders with a single, prior felony-criminal-sexual-conduct conviction.  Here, appellant had three prior qualifying convictions rather than the single conviction required under the statute.  Based on appellant’s history and multiple prior sex-offense convictions, we conclude that the district court’s statutory maximum sentence is not an abuse of discretion and does not exaggerate the severity of appellant’s conduct.

            Affirmed.