State of Minnesota, Respondent, vs. William John Stowell, Appellant.

State of Minnesota, Respondent, vs. William John Stowell, Appellant. A03-901, Court of Appeals Unpublished, February 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-901

 

State of Minnesota,

Respondent,

 

vs.

 

William John Stowell,

Appellant.

 

Filed February 8, 2005

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

Crow Wing County District Court

File No. K3-02-1359

 

Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge, Lansing, 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 William Stowell challenges his sentence, arguing that the upward dispositional departure, the upward durational departure, and the consecutive sentences imposed by the district court were based on judicial findings in violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  We (1) reverse the durational departure and remand for resentencing as to duration consistent with Blakely; (2) affirm the dispositional departure; and (3) remand for further briefing on the issue of whether Blakely permits the district court to depart from presumptive concurrent sentences solely on the basis of judicial findings of fact. 

FACTS

In January 2003, appellant pleaded guilty to two counts of felony pattern of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (2002).  The presumptive sentences for the counts were 18 months and 23 months, stayed.  At sentencing, the district court departed from the sentencing guidelines (1) durationally, by sentencing appellant to 54 months on each count; (2) dispositionally, by ordering each sentence executed; and (3) by ordering that the sentences be served consecutively, where the guidelines call for presumptive concurrent sentences.  The court based the departures on judicial findings of fact made at the sentencing hearing, none of which were admitted by appellant in his guilty plea.

            After this court affirmed the sentence and the supreme court denied appellant's petition for further review, the United States Supreme Court issued Blakely v. Washington, 124 S. Ct. 2531 (2004).  Blakely refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), that the Sixth Amendment requires "any fact that increases the penalty for a crime beyond the prescribed statutory maximum [to] be submitted to a jury, and proved beyond a reasonable doubt."  124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).  Blakely, addressing the Washington state criminal code, interpreted "statutory maximum" to mean "not the maximum sentence a judge may impose after finding additional facts, but the maximum [the judge] may impose without any additional findings."  Id. at 2537 (emphasis omitted).  

Appellant moved the supreme court to reinstate his appeal on the grounds that Blakely guaranteed his right to a jury determination, based upon proof beyond a reasonable doubt, of the presence of any aggravating factors used by the district court to justify the sentencing departures.  The supreme court granted the motion and remanded the matter to this court to reconsider appellant's sentence in light of Blakely. 

D E C I S I O N

I.

The state argues first that appellant is not entitled to the benefit of Blakely v. Washington, 124 S. Ct. 2531 (2004), because he did not assert his Sixth Amendment rights at trial by objecting on the basis of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  We disagree.  "[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule."  O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (recognizing Apprendi as a new rule of law).  A case is "pending" if the defendant's judgment of conviction has been rendered but all rights to appeal and certiorari have not been exhausted.  Id.  Here, the Minnesota Supreme Court denied appellant's petition for further review on June 15, 2004; the United States Supreme Court issued Blakely nine days later, well before the 90-day time for a petition for certiorari to that court elapsed.  Sup. Ct. R. 13.1.  Appellant's case was therefore pending on direct review when Blakely issued.   

We have recently held that Blakely announced "a new constitutional rule."  State v. Petschl, 688 N.W.2d 866, 875 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005); State v. Saue, 688 N.W.2d 337, 344 (Minn. App. 2004) (observing "the dramatic significance of Blakely in stating a new rule of law"), review granted (Minn. Jan. 20, 2005).  It is true, as the state argues, that the failure to challenge a sentence on Apprendi grounds on appeal waives the Sixth Amendment issue.  See State v. Leja, 684 N.W.2d 442, 447 n.2 (Minn. 2004).  But here, appellant has squarely raised the Blakely issue in a direct appeal, and is therefore entitled to reconsideration of his sentence under the new rule announced in that case.

II.

Appellant argues that the upward durational departure imposed by the district court violated his right to a jury trial under Blakely.  We agree.  Following remand in this matter, the supreme court issued an order opinion holding that under Blakely, any upward durational departure from the Minnesota Sentencing Guidelines' presumptive sentence based solely upon judicial findings of fact does not comply with the Sixth Amendment to the United States Constitution and is invalid.  State v. Shattuck, No. C6-03-362 (Minn. Dec. 16, 2004) (per curiam); see also Saue, 688 N.W.2d at 341 (same); State v. Conger, 687 N.W.2d 639, 643-44 (Minn. App. 2004) (same), review granted (Minn. Dec. 22, 2004).  We therefore reverse the upward durational departure and remand for resentencing consistent with Blakely.

III.

Appellant also argues that Blakely invalidates the upward dispositional departure imposed by the district court.  Following remand, this court issued State v. Hanf, 687 N.W.2d 659 (Minn. App. 2004), review granted (Minn. Dec. 14, 2004).[1]  Hanf holds that Blakely does not require that the facts supporting a dispositional departure under the Minnesota Sentencing Guidelines be made by a jury.  Id. at 664-66.  We therefore hold that the judicial findings of fact here were sufficient under Blakely to justify the dispositional departure imposed by the court.

IV.

The district court also departed from the sentencing guidelines by imposing consecutive sentences for appellant's convictions.  In their supplemental briefs, the parties make only passing reference to the fact that appellant received consecutive sentences, but neither brief specifically argues for or against the applicability of Blakely to consecutive sentences.  Generally, issues not briefed on appeal are deemed waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  In State v. Glidden, 455 N.W.2d 744, 746 (Minn. 1990), the court observed that "it is proper for an appellate court to decide an issue not raised on appeal only when the reasoning relied upon by the appellate court is neither novel nor questionable."  Because Minnesota has not yet determined whether a sentencing departure in the form of consecutive sentencing violates a defendant's right to a jury trial under Blakelyor Apprendithe applicability of Blakely to consecutive sentences will necessarily be novel.

In his brief, appellant argues for the applicability of Blakely to upward sentencing departures in general but does not distinguish among durational-, dispositional-, and consecutive-sentence departures or address how each type of departure might implicate different concerns and results under Blakely.  Because this court has previously ruled on Blakely's effect on durational and dispositional departures, those issues can be resolved by this court in the absence of specific briefing.  But our consideration of Blakely's applicability to consecutive sentencing is precluded by the parties' failure to submit appropriate arguments.  The appropriate course of action is therefore for the parties to brief this issue to the district court on remand.

            Affirmed in part, reversed in part, and remanded.

[1]  This court generally follows its own opinions for purposes of consistency even when they are not binding precedent.  For example, this court has followed the same reasoning as another opinion on which a petition for further review has been filed.  State v. Piotrowski, 435 N.W.2d 573, 574-75 (Minn. App. 1989) (following the reasoning of, but not citing, Piotrowski v. Comm'r of Pub. Safety, 433 N.W.2d 124 (Minn. App. 1988), rev'd, 453 N.W.2d 689 (Minn. 1990)), rev'd on other grounds, 453 N.W.2d 689 (Minn. 1990).  This court has also treated, although in an unpublished opinion, as "controlling" the Piotrowski opinions even after the supreme court had granted review.  State v. Torgerson, No. C2-89-805, 1989 WL 103247, at *1 (Minn. App. Sept. 12, 1989), rev'd on other grounds, 453 N.W.2d 698, 699 (Minn. 1990).