State of Minnesota, Respondent, vs. Kathy Ann Carroll, Appellant.

State of Minnesota, Respondent, vs. Kathy Ann Carroll, Appellant. A04-1990, Court of Appeals Unpublished, July 19, 2005.

This opinion will be unpublished and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

A04-1990

 

State of Minnesota,

Respondent,

 

vs.

 

Kathy Ann Carroll,

Appellant.

 

Filed July 19, 2005

Reversed and remanded Willis, Judge

 

Martin County District Court

File No. K1-04-150

 

 

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 123 Downtown Plaza, Fairmont, MN  56031 (for respondent)

 

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

 

            Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Forsberg, Judge.*

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

WILLIS, Judge

            Appellant challenges her sentence for a conviction of theft, arguing that the district court erred by finding aggravating factors and imposing an upward durational departure, in violation of her Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because appellant did not waive her right to a jury determination of the aggravating factors on which the district court based the upward durational departure, we reverse and remand. 

FACTS

            Appellant Kathy Ann Carroll pleaded guilty to theft, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (2002).  Because Carroll had a criminal-history score of zero, the presumptive sentence under the Minnesota Sentencing Guidelines is one year and one day, stayed.  But after finding that Carroll's conduct was "a major offense, that there were multiple incidences with the same victim, [and] that it was over an extended period of time," the district court imposed a 24-month sentence, stayed.  Carroll challenges her sentence on appeal.

D E C I S I O N

            Carroll argues that the district court erred by imposing an upward durational departure in violation of her Sixth Amendment rights as described in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  This challenge presents a constitutional issue, which we review de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

            Blakely requires that a jury find all facts on which the district court bases an upward durational departure from a presumptive guidelines sentence. 542 U.S. at ___, 124 S. Ct. at 2537; State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1] The district court may impose an upward durational departure if the defendant admits facts supporting the departure but only if the defendant also waives her right to a jury determination of those facts.  Hagen, 690 N.W.2d at 15859.

            Here, Carroll pleaded guilty to theft, but she did not waive her right to a jury determination of aggravating factors supporting an upward durational departure.  We conclude, therefore, that the district court's imposition of an upward durational departure based on judicially found aggravating factors is a violation of Carroll's Sixth Amendment rights under Blakely, and we reverse and remand for resentencing consistent with Blakely.

            Reversed and remanded. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The supreme court granted review in Conger but stayed the 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, 2004, 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.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The court indicated that a full opinion would be forthcoming and directed the parties to submit additional briefs on an appropriate remedy.  Id.