A06-1289

State of Minnesota,

Respondent,

vs.

Juan Luis Ocampo-Perez,

Appellant.

Filed March 20, 2007

Affirmed

Worke, Judge

Scott County District Court

File No. 2004-08608

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

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

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

Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from a sentence imposed for aiding and abetting second-degree felony murder, appellant argues that the district court (1) abused its discretion by imposing a durational departure without stating an aggravating factor supporting the departure; (2) was required to state the aggravating factor (victim vulnerability) at the time of sentencing, and to find that the victim’s vulnerability due to intoxication was a substantial and compelling circumstance; (3) imposed an unconstitutional departure under Blakely; and (4) on remand must impose the presumptive sentence. We affirm.

D E C I S I O N

Upward Departure

Appellant Juan Luis Ocampo-Perez argues that the district court abused its discretion in imposing an upward departure because it failed to state at the time of sentencing that it was departing from the presumptive sentence and failed to make a finding that an aggravating factor existed that supported the departure. Departures from presumptive sentences are reviewed for abuse of discretion, but there must be “substantial and compelling circumstances” in the record to justify departures. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). “If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a strong feeling that the sentence is disproportional to the offense.” State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (quotation omitted).

Here, appellant pleaded guilty to aiding and abetting second-degree unintentional murder based on a plea agreement wherein appellant would serve 206 months in prison, an upward departure, waive his right to a jury trial on aggravating factors under Blakely, and stipulate to the aggravating factor that the victim was vulnerable because he was impaired at the time of the murder. Appellant acknowledged that he understood the plea agreement and was aware that he was waiving his right to a hearing on the existence of aggravating factors and agreeing that the victim’s vulnerability was an aggravating factor that supported the upward departure. Specifically, when asked by the prosecutor, “And you would agree that the fact that [the victim] was intoxicated and under the influence of drugs at the time he was killed is an aggravating factor,” appellant stated that he agreed. The district court then clarified, “So the aggravating factor, just so I’m understanding, under the sentencing guidelines would be the victim was vulnerable because of his – because of the fact he was impaired.” The court then found that there was a factual basis for appellant’s guilty plea. After appellant waived his right to a presentence-investigation report, the district court sentenced appellant, stating:

It is the sentence of the Court that you be committed to the Commissioner of Corrections for a period of 206 months, 137 and-a-third of which will be served in a correctional facility selected by the Commissioner and 68 and two-thirds months on supervised release.

Appellant argues that during the specific sentencing-pronouncement portion of the hearing, the district court failed to state that the sentence was an upward departure and that the district court found that an aggravating factor existed to support the departure. SeeState v. Geller, 665 N.W.2d 574 (Minn. 2003) (___). The Minnesota Sentencing Guidelines state, “[I]n exercising the discretion to depart from a presumptive sentence, the [district court] must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.” Minn. Sent. Guidelines II.D (emphasis added). Here, the plea and sentencing occurred at the same hearing, with no break between the plea and sentencing. The record contains significant discussion regarding appellant’s stipulation to the aggravating factor of victim vulnerability and how that agreement impacted his sentencing. Further, the district court did make findings that appellant understood his rights and waived them knowingly and voluntarily, and there was a factual basis for appellant’s guilty plea. Because this was one continuous plea and sentencing hearing and the record contains significant discussion of appellant’s agreement to the upward departure and stipulation to the aggravating factor of victim vulnerability, the district court did not abuse its discretion in imposing an upward departure.

Blakely Waiver

Appellant argues that the district court erred in imposing the upward departure because it failed to obtain a valid waiver of his right to a jury determination under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The alleged Blakely error in this case presents a constitutional question that we review de novo. See State v. Barker, 705 N.W.2d 768, 771 (Minn. 2005).

In Blakely, the Supreme Court held that a district court may not impose a sentence greater than “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 (emphasis omitted). 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. State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005). Thus, appellant’s sentence could not constitutionally have been enhanced, beyond the maximum sentence authorized by the facts established by his guilty plea, based on judicial findings of fact . The district court’s imposition of an upward departure was permissible only if the facts authorizing the departure were either found by a jury beyond a reasonable doubt or admitted by appellant. See Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. Here, appellant stipulated on the record to the aggravating factor that the victim was impaired at the time of the murder. Appellant also testified that he understood the impact his agreement to stipulate to this aggravating factor would have on his sentence. Because appellant entered a valid waiver of his right to a hearing on aggravating factors under Blakely, the district court did not err in imposing an upward departure. We do not need to address appellant’s final assertion that the presumptive sentence should be imposed on remand.

Affirmed.