This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-131

 

 

State of Minnesota,

Respondent,

 

vs.

 

Joshua Lawrence Johnson,

Appellant.

 

 

Filed January 23, 2007

Affirmed in part, vacated in part, and remanded

Halbrooks, Judge

 

 

Nicollet County District Court

File No. 52-CR-05-91

 

 

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

 

Michael K. Riley, Sr., Nicollet County Attorney, Kenneth R. White, Kristen E. Swanson, Assistant County Attorneys, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his stayed sentence of 60 months following his plea of guilty to one count of terroristic threats, arguing that (1) the district court abused its discretion in imposing an upward durational departure to the statutory maximum, (2) he did not waive his right to a jury trial on the aggravating factors justifying the court’s upward durational departure, and (3) the district court erred in determining that appellant was not entitled to jail credit for the time appellant spent in civil commitment at a state hospital between arrest and sentencing.  We affirm the district court’s denial of credit for time appellant spent in civil commitment.  But because we conclude that appellant’s waiver of a jury trial on aggravating factors was not valid, we vacate the sentence and remand for trial on those factors or for a waiver of the jury-trial right complying with Minn. R. Crim. P. 26.01, subd. 1(2)(a). 

FACTS

            On November 29, 2004, appellant Joshua Lawrence Johnson attended a meeting with staff members concerning a probation warning for appellant’s behavior at the Minnesota Sex Offender Treatment Program in St. Peter, Minnesota.  While appellant was being escorted from the meeting, he began verbally threatening a female staff member, Kari H., calling her obscene names.  After appellant “clinched his fists and advanced towards staff,” he was placed on the floor and handcuffed.  While being restrained, appellant kicked Kari H. in the face, which later required her to receive medical attention at the local hospital. 

During the incident, appellant also repeatedly threatened to kill staff and harm their children and families.  Appellant verbally abused and threatened specific individuals, calling them names such as:  “b-tch,” “sl-t,” and “c-nt.”  Appellant also made specific threats to employees, stating all of the following:  “I’m going to watch your kids die”; “I’m going to kill all of you”; “I can’t wait to see your kids’ face when I am killing them”; “I will kill you sl-t”; “You’re all dead”; and “I will kill your kids and I will laugh when you see their bloody faces.”  Appellant threatened another female employee, stating, “Deb, I’m going to rape you, you b-tch”; “I’m surprised you hadn’t [sic] been raped yet”; and “I could bite your [sic] right now you b-tch.” 

The employees were particularly traumatized because appellant made several references to Gary Grimm, a staff member who was assaulted with a pipe in his home in 2003 and left for dead “by a person believed to have been working for a resident of the Minnesota Security Hospital.”  Appellant made a number of statements, indicating that he was going to retaliate against them like Gary Grimm, including: “Don’t you remember what happened to Gary Grimm”; “I’m going to kill you b-tches like Gary Grimm”; “Remember Gary Grimm lying in a pool of blood”; “Gary Grimm should have been dead”; “Gary Grimm was left for dead in his living room, but his wife found him there; that is the only reason why he is still alive, but not for long”; “It is going to happen to you like what happened to Gary Grimm, he should be dead.  He will be dead yet, I can’t wait”; and “I’ll f-cking kill you and your children and I want to see you all bleed in the face like Gary Grimm did.” 

Mike G., the unit director of the residence hall, stated that appellant personally threatened him, stating, “I’m going to kill you, your whole f-cking family, and butt rape your children.”  Like the other employees, Mike G. stated that the incident and appellant’s comments increased his concern about the safety and security of his family, noting that appellant “ha[d] a clear history of following through on this [sic] t[h]reats and also ha[d] a history of weapon making.”

Appellant was charged with seven counts of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004), and one count of misdemeanor fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1 (2004).  Appellant was subsequently transferred from the St. Peter Security Hospital to the Moose Lake Security Hospital. 

Appellant pleaded guilty to one count (count 3) of terroristic threats, and the other counts were dismissed.  Appellant admitted to “threaten[ing] to kill and harm Mike’s family and him,” knowing that it “might make him afraid.”  At his guilty-plea hearing, appellant argued for jail credit for the time he had spent in the Moose Lake Security Hospital. 

At the sentencing hearing, the state moved for an upward durational departure from the presumptive sentence of 18 months stayed to a 60-month commitment to the commissioner of corrections.  Appellant opposed the upward durational departure and again argued for jail credit for time he spent in the Moose Lake Security Hospital.  The district court took the issue of jail credit under advisement. 

Later that day, the district court denied appellant’s request for jail credit and granted the state’s motion for an upward durational departure, sentencing appellant to the statutory maximum of 60 months, with a five-year stay of execution.  In support of the upward departure, the district court noted appellant’s history of violent crime, the fact that appellant was on probation when the crime was committed, and the fact that multiple victims were involved. 

After the district court sentenced appellant, the following exchange took place:

                        THE COURT:  Mr. Johnson, do you want to come back and sit down one second.  I have just sentenced you.  And you know what, I made a mistake.  If you would prefer, I can take that sentence back right now—and if you would prefer, I will give you a jury trial, and twelve people will have to decide that you actually—uhm—did those three things that I told you that you did.  The three things for—that this is your fourth violent offense in three years, and the State has to prove that beyond a reasonable doubt.  And then they would have to prove beyond a reasonable doubt that there were more than one victim in this case.  Do you understand that?

                        THE DEFENDANT:  Yeah.  I understand that.

                        THE COURT:  And then the State would have to prove beyond a reasonable doubt that you were on felony probation when you committed these offenses.  Do you understand that?

                        THE DEFENDANT:  Yeah.

                        THE COURT:  And—may I have the file back.  And they have to prove all of that beyond a reasonable doubt, and twelve people have to sit there and listen to it, and determine that they did prove it beyond a reasonable doubt.  And if that doesn’t happen, I can’t give you an upward departure, like I just did.  I can’t give you to the five years instead of the eighteen months.  Would you rather have a jury decide that? 

 

Appellant’s counsel initially demanded a jury trial on the aggravating factors, but then decided to “discuss the matter with [his] client before he ha[d] to make that decision.”  Appellant’s counsel stated that he would “get back to the Court at the end of the day.”  Ten days later, appellant’s counsel submitted a letter to the district court regarding the issue of a jury trial on the aggravating factors.  In the letter, appellant’s counsel stated:

I don’t believe that there is a provision under the law for a jury trial on aggravating factors for crimes committed before August 1, 2005.

 

. . . . 

 

Therefore, let this letter serve as a waiver of the jury trial the Court offered my client at the sentencing hearing on October 18, 2005 . . . .

 

            The district court subsequently issued an order imposing a 60-month sentence with stay of execution and probation.  The district court denied appellant’s request for jail credit on the ground that the time appellant spent in civil commitment was “unrelated to this offense.” 

            This appeal follows. 

D E C I S I O N

I.

Appellant argues that he did not waive his right under Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004), to a jury trial on the aggravating factors that justified the district court’s upward durational departure.  “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.’”  State v. Thompson, 694 N.W.2d 117, 121 (Minn. App. 2005) (quoting Blakely, 542 U.S. at 303, 124 S. Ct. at 2537) (alteration in original), rev’d on other grounds, 720 N.W.2d 820 (Minn. 2006); see also State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005) (holding that under Blakely, the district court may not impose an upward durational departure from the Minnesota Sentencing Guidelines’ presumptive sentence based on judicial findings unless the defendant waives his right to a jury determination of the facts on which the departure is based).  “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (quotation omitted). 

But a defendant may waive his right to a jury trial.  See id. at 310, 124 S. Ct. at 2541.  A defendant’s waiver of the right to a jury trial on aggravating factors must be knowing, voluntary, and intelligent.  State v. Beaty, 696 N.W.2d 406, 412 (Minn. 2005); see also State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005) (stating “[t]he waiver of the right to a jury trial on sentencing factors requires the same support as a waiver of the right to a jury trial on the elements of the offense”).  In State v. Thompson, 720 N.W.2d 820, 826-27 (Minn. 2006), the Minnesota Supreme Court held that the issue of a defendant’s waiver of the right to a jury trial on aggravating factors supporting an upward durational departure is governed by Minn. R. Crim. P. 26.01, subd. 1(2)(a).  Minn. R. Crim. P. 26.01, subd. 1(2)(a), provides that a criminal defendant “with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”  “A waiver made in compliance with Rule 26.01, subdivision 1(2)(a), meets the knowing, voluntary, and intelligent requirement.”  Thompson, 720 N.W.2d at 827.  

“The decision to depart from the presumptive sentence rests with the district court and will generally not be disturbed absent a clear abuse of discretion.”  Thompson, 694 N.W.2d at 121 (citing State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996)).  But we review the Blakely constitutional question de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            The issue here is whether appellant knowingly, voluntarily, and intelligently waived his right to a jury trial on the aggravating factors under rule 26.01, subdivision 1(2)(a).  One requirement under rule 26.01, subdivision 1(2)(a), is that the court advise defendants of their right to a trial by a jury.  That requirement was met when the district court here advised appellant on the record of his right to a jury trial on the aggravating factors and asked appellant on the record if he understood his right to a jury trial. 

In addition, rule 26.01, subdivision 1(2)(a), requires that a defendant has an opportunity to consult with counsel regarding the right to a jury trial.  After initially demanding a jury trial on the aggravating factors, appellant’s counsel later decided to “discuss the matter with [his] client before he ha[d] to make that decision,” and “get back to the Court at the end of the day.”  Thus, appellant had an opportunity to consult with his attorney regarding whether he should request a jury trial.    

The final question is whether appellant waived his right to a jury trial “personally in writing or orally upon the record in open court.”  Minn. R. Crim. P. 26.01, subd. 1(2)(a).  In Thompson, the supreme court held that a defendant’s waiver complied with rule 26.01, subdivision 1(2)(a), when the district court directly asked defendant in court and on the record if she wanted a jury or the court to decide whether a factual basis existed for departure, to which defendant responded that she wanted the court to decide rather than a jury.  720 N.W.2d at 827.  In addition, the district court in Thompson asked defendant if she understood that she was waiving her right for a jury to decide the issue based on proof beyond a reasonable doubt, to which defendant replied, “Yes.”  Id. 

Here, appellant did not waive his right to a jury trial “orally upon the record in open court.”  The letter to the district court drafted by appellant’s attorney referencing appellant’s waiver is problematic for a number of reasons.  The waiver was not “personally” signed by appellant as required under rule 26.01, subdivision 1(2)(a).  In addition, it appears that the attorney’s letter was mistaken in a couple of respects, thus rendering any waiver by appellant unintelligent.  The supreme court held in State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005), that Blakely will not be applied retroactively to cases that were final prior to Blakely’s effective date of June 24, 2004; the crime for which appellant was convicted occurred on November 29, 2004.  Thus, contrary to the assertion made by appellant’s counsel, appellant clearly did have a right to a jury trial on aggravating factors despite the fact that his crime was committed before August 1, 2005. 

            Because we conclude that appellant did not knowingly, voluntarily, and intelligently waive his right to a jury trial on the aggravating factors pursuant to rule 26.01, subdivision 1(2)(a), we vacate the sentence without addressing the factors cited by the district court and addressed in the briefs to justify the court’s decision to impose an upward durational departure.  We remand for a jury trial on the sentence-enhancing factors or for a waiver of the jury-trial right complying with rule 26.01, subdivision 1(2)(a). 

II.

            Appellant next argues that he should be given credit for the time he spent in the Moose Lake Security Hospital after his arrest but prior to sentencing.  “The granting of jail credit is not discretionary with the trial court.”  State v. Cameron, 603 N.W.2d 847, 848 (Minn. App. 1999) (quotation omitted).  “Awards of jail credit are governed by principles of fairness and equity, and a reviewing court can only ‘address this issue on a case-by-case basis.’”  State v. Razmyslowski, 668 N.W.2d 681, 683 (Minn. App. 2003) (quoting State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985)).  “A defendant has the burden of establishing that he is entitled to jail credit for a specific period of time.”  Id. (citing State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985)).  “A defendant is entitled to jail credit for ‘all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.’”  State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001) (quoting Minn. R. Crim. P. 27.03, subd. 4(B)), review denied (Minn. Aug. 15, 2001).   

Asfaha v. State, 665 N.W.2d 523 (Minn. 2003), provides guidance on this issue.  In Asfaha, the defendant pleaded guilty to first-degree assault and received a 98-month sentence.  665 N.W.2d at 524.  The sentence was stayed, and defendant was placed on probation.  Id.  As a condition of his probation, defendant was ordered to complete treatment in a residential treatment facility.  Id.  Defendant later violated his probation, and the court revoked probation and executed defendant’s 98-month prison sentence.  Id. at 524, 525.  At the revocation hearing, defendant sought jail credit for the time that he spent in the residential treatment facility, which was a requirement of his probation.  Id. at 525.  The district court granted defendant’s request, but this court reversed.  Id. 

Defendant argued on appeal to the supreme court that “to ensure proportionality in sentencing, the award of jail credit should not depend on whether the defendant is confined in ‘jails, workhouses, [or] regional correctional facilities’ but instead should depend on whether the defendant was in custody in connection with the offense.”  Id. (alteration in original).  The Minnesota Supreme Court held that “fairness and equity require jail credit be granted for confinement in facilities that are the functional equivalent of a jail, workhouse, or regional correctional facility.”  Id. at 524; see id. at 527-28.  The supreme court concluded that because the residential treatment center in this case “impose[d] essentially the same limitations on a person’s freedom as a jail, workhouse, or regional correctional facility,” the district court did not err in awarding defendant jail credit for the time spent in the treatment facility.  Id. at 527-28.

            This case is distinguishable from Asfaha because at the time of this offense, appellant was committed to the St. Peter Security Hospital pursuant to an existing civil-commitment order that predated this charge by six years.  Appellant was later transferred to the Moose Lake Security Hospital.  Appellant contends that he should be entitled to jail credit for time served at the Moose Lake Security Hospital because of the degree of restraint at the hospital and because the criminal penalties that would have resulted if he had fled the facility made the hospital the “functional equivalent” of a jail.  But unlike the defendant in Asfaha, who received jail credit for the time he spent in treatment facilities as a direct result of the charge he was currently being sentenced for, appellant was already under civil commitment at a security hospital, and there is no evidence that the transfer to the Moose Lake facility altered the conditions of his civil commitment.  Therefore, we conclude that appellant should not be given jail credit for his time spent at the Moose Lake Security Hospital.  

            Affirmed in part, vacated in part, and remanded.