State of Minnesota, Respondent, vs. Manuel Junior Velez, Appellant.

State of Minnesota, Respondent, vs. Manuel Junior Velez, Appellant. A06-1034, Court of Appeals Unpublished Decision, December 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1034

 

State of Minnesota,
Respondent,
 
vs.
 
Manuel Junior Velez,
Appellant.

 

Filed December 11, 2007

Affirmed

Klaphake, Judge

 

 Mower County District Court

File No. K4-05-847

 

 

Lori Swanson, Attorney General, Peter R. Marker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102; and

 

Patrick William Flanagan, Mower County Attorney, Mower County Courthouse, 201 First Street Northeast, Austin, MN  55912 (for respondent)

 

John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge. 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Manuel Junior Velez appeals from his conviction for first-degree assault in violation of Minn. Stat. § 609.221 (2004).  Consistent with a plea agreement in which appellant waived the right to have facts to be used at sentencing determined by a jury, the district court imposed a 138-month executed sentence, an upward durational departure from the 86-month presumptive sentence under the Minnesota Sentencing Guidelines.  Appellant claims that his plea was not made intelligently because at the time it was entered, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), mandated that the facts supporting an aggravated sentence be determined by a jury, but the sentencing court in this case had no authority to convene a sentencing jury.  Appellant argues that the sentencing guidelines amendments authorizing jury impanelment did not apply to his case because they took effect after the date of the offense.  See State v. Shattuck, 704 N.W.2d 131, 143 (Minn. 2007) (holding that, consistent with Blakely, the Minnesota Sentencing Guidelines were unconstitutional "insofar as [they] permit[ed] an upward durational departure based on judicial findings").  Because this precise issue was resolved in Hankerson v. State, 723 N.W.2d 232 (Minn. 2006), cert. denied, 128 S. Ct. 42 (Oct. 1, 2007), we affirm.          

D E C I S I O N

            In Hankerson v. State, 723 N.W.2d 232 (Minn. 2006), cert. denied, 128 S. Ct. 42 (Oct. 1, 2007), the supreme court addressed the application of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to a case where the offender's conviction predated the effective date of the amendment to the relevant Minnesota statutes and the Minnesota Sentencing Guidelines providing for sentencing juries.[1] There, the supreme court ruled that the district court was authorized to impanel a resentencing jury after Hankerson was initially sentenced in violation of Blakely, stating that "[n]othing in the former language of Minn. Sent. Guidelines II.D prohibits a court from imposing a sentence based on facts found by a jury."  Hankerson, 723 N.W.2d at 236.  The court noted that the statutory amendments to Minn. Stat. § 244.10 (2004) and the pre-amendment version of the sentencing guidelines authorize a district court to "impanel a sentencing jury" and "to use the jury's findings to impose a new sentence, including, where appropriate, an aggravated sentence" for a conviction obtained before the effective date of the amendments.  Id.

            Here, appellant's offense occurred before the effective date of the amendments to the sentencing guidelines and statutes that authorized a sentencing jury, but his plea agreement waiving his right to have a jury determine the facts supporting an aggravated sentence occurred after the effective date of the amendments.  The amendment to Minn. Stat. § 244.10 authorizing the district court to convene a jury to make findings for upward departures applied to "sentencing hearings, resentencing hearings, and sentencing departures sought on or after" the effective date of the amendment, even though the offense may have occurred prior to the effective date.  2005 Minn. Laws. ch. 136, at 1115-16.  Thus, at the time of appellant's plea agreement, the court had the authority under the amended statute to impanel a sentencing jury.  The amendments to the sentencing guidelines authorizing the district court to use the findings of a sentencing jury, however, are prospective only and apply only to offenders whose date of offense is on or after the effective date of the amendment.  2005 Minn. Laws ch. 136, art. 16, § 14 at 1119.  But the Hankerson court found that nothing in the former language of the guidelines prohibited a court from imposing a sentence based on facts found by a jury.  Hankerson, 723 N.W.2d at 236.  Therefore, because the district court had the authority to impanel a sentencing jury at the time of the plea and could have used the facts found by such a jury in imposing an aggravated sentence, we reject appellant's argument that he made an invalid waiver of his right to a sentencing jury. 

            Affirmed.               

 

[1] Appellant committed this offense on May 15, 2005 and pleaded guilty on January 12, 2006.  The law adopting changes to the sentencing guidelines became effective on August 1, 2005.  2005 Minn. Laws ch. 136, art. 16, § 14 at 1119.  Amendments to Minn. Stat. § 244.10 (2004) became effective "the day following final enactment."  2005 Minn. Laws ch. 136, art 16, §§ 3-6 at 1115-16.