State of Minnesota, Respondent, vs. Michael James Crow, Appellant.

State of Minnesota, Respondent, vs. Michael James Crow, Appellant. A04-254, Court of Appeals Unpublished, February 22, 2005.

This opinion will be unpublished and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

A04-254

 

State of Minnesota,

Respondent,

 

vs.

 

Michael James Crow,

Appellant.

 

Filed February 22, 2005

Affirmed  in part, reversed in part, and remanded

Kalitowski, Judge

 

Redwood County District Court

File No. K9-03-28

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michelle Dietrich, Redwood County Attorney, Courthouse, Box 130, Redwood Falls, MN 56283 (for respondent)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Michael James Crow was convicted by a jury of third-degree criminal sexual conduct.  At the time of his conviction, appellant was serving an 84-month sentence for aiding and abetting kidnapping, false imprisonment, and coercion.  In addition, appellant had charges pending against him for third-degree assault and escape from custody.  Prior to sentencing, appellant reached a "global settlement" with the state regarding the criminal-sexual-conduct conviction and the two pending charges.  The district court:  (1) sentenced appellant to 120 months, an upward departure from the presumptive sentence of 51 months for third-degree criminal sexual conduct; (2) ordered the sentence to run concurrently to the 84-month sentence appellant was already serving; and (3) dismissed the two pending charges.  Appellant now challenges his sentence, arguing that the upward durational departure violates his Sixth Amendment right to a jury trial as defined by Blakely v. Washington, 124 S. Ct. 2531 (2004).  Appellant also argues that imposition of a ten-year conditional-release term based on judicial findings violates his Sixth Amendment right to a jury trial.  We affirm in part, reverse in part, and remand.

D E C I S I O N

I.

            This court has recently held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to upward durational departures in Minnesota.  See State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  Here, appellant's presumptive sentence under the Minnesota Sentencing Guidelines was 51 months.  Accordingly, the district court's imposition of a 120-month sentence represented an upward durational departure of 69 months.  At appellant's sentencing hearing, the district court stated that the upward departure was based on two factors:  (1) appellant's agreement with the state; and (2) the fact that this was appellant's third violent-offender crime. 

            The state argues that (1) appellant's agreement to the upward departure makes Blakely inapplicable; and (2) because the district court also based its departure on appellant's prior convictions, its decision to depart does not violate violate Blakely.  We disagree.

The Minnesota Supreme Court has held that an upward departure based solely on a plea agreement, without aggravating factors, cannot stand.  State v. Misquadace, 644 N.W.2d. 65, 71 (Minn. 2002).  Thus, appellant's agreement is not a proper basis for an upward departure.  And although the district court found that appellant was a violent offender, in doing so the court merely stated that "under the statute . . . this is a third violent person offender crime, and, therefore, for that reason, as well, the upward departure is justified."  This finding is not sufficient under the statute to allow the court to sentence appellant as a dangerous offender.  See Neal v. State, 658 N.W.2d 536, 544 (Minn. 2003) (stating that "[t]he dangerous-offender statute requires that courts determine that the offender is a danger to public safety, and a court should make this specific finding if it wants to impose a sentence under the statute").  Moreover, even if the district court had made the required finding, under the dangerous-offender statute, appellant would have had to waive his right to a jury trial on the finding that he is a danger to public safety in order to not come under Blakely.  See State v. Johnson, 689 N.W.2d 247, 254 (Minn. App. 2004) (holding that the critical consideration in determining application of Blakely is "whether any sentencing facts essential to lawful imposition of the [sentence] were decided by the judge and whether the procedure preserved the defendant's fundamental right, under Blakely, to have all sentencing facts decided by the jury"), review denied (Minn. Jan. 20, 2005) (quotations omitted).

The state argues that appellant's agreement to the upward departure should suffice as a waiver here.  But this court has held that an upward durational departure may not be based on a defendant's admission to an aggravating factor unless the admission is accompanied by the defendant's oral or written waiver of his or her right to a jury trial on the aggravating factor.  State v. Hagen, 690 N.W.2d 155, 159 (Minn. App. 2004); see also State v. Whitley, 682 N.W.2d 691, 696 (Minn. App. 2004) (holding that waiver of the right to jury trial on a criminal charge did not constitute waiver for purposes of sentencing enhancement).  Under Hagen, 690 N.W.2d at 158-59, even if appellant had stipulated to an aggravated sentencing factor when he agreed to the upward departure, his sentence must be reversed if he did not validly waive his right to a jury trial on the aggravating factor.  See also Whitley, 682 N.W.2d at 696 (holding that waiver must be knowing, intelligent, and voluntary in order to be valid).

Here, there is nothing in the record, other than the statement of appellant's counsel at the sentencing hearing that appellant "has given up his right to have a contested hearing over this upward departure," to indicate that appellant knowingly waived his right to a jury trial.  Thus, we conclude that appellant's sentence must be reversed and this matter remanded to the district court for resentencing in such proceedings as the district court deems appropriate. 

II.

            Appellant also argues that the ten-year conditional-release period attached to his sentence should be reversed as a violation of his Sixth Amendment rights.  Appellant contends that the imposition of a ten-year conditional release is unconstitutional "because it mandates that the judge impose an additional five or ten year sentence despite the statutory maximum sentence."  We disagree.  Minn. Stat. § 609.109, subd. 7 (2002), makes conditional release periods mandatory for sex offenders.  Section 609.109, subdivision 7(a), states, in relevant part:

[W]hen a court sentences a person to prison for a violation of section . . . 609.344 . . . the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release . . . . If the person was convicted for a violation of one of those sections after a previous sex offense conviction . . . the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

 

Accordingly, appellant received a ten-year conditional-release term based solely on his two criminal-sexual-conduct convictions.

            In State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003), the supreme court held that conditional-release terms under Minn. Stat. § 609.109, subd. 7, are "authorized on the basis of the jury verdict, and [do] not require any additional findings of fact to be made by the district court."  The court also stated that, for statutorily designated sex offenders, conditional release "is a mandatory aspect of their sentence."  Id.  Accordingly, the conditional-release period is part of the maximum sentence that an offender may receive for his crime, and imposition of the ten-year conditional-release period here does not run afoul of appellant's constitutional rights under Blakely.  See Stone v. State, 675 N.W.2d 631, 634 (Minn. App. 2004) (applying this reasoning to an Apprendi-based sentence challenge).  Therefore the district court did not err in imposing a ten-year conditional release.

            Affirmed in part, and reversed in part, and remanded.  

[1] The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shattuck on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant's rights as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004).  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.