State of Minnesota, Respondent, vs. Douglas Gerard Ibberson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Douglas Gerard Ibberson,

Appellant.

Filed October 19, 2004

Affirmed

Toussaint, Chief Judge

Brown County District Court

File No. K3-03-173

Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and

James R. Olson, Brown County Attorney, 519 Center Street, P.O. Box 428, New Ulm, MN  56073 (for respondent);

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Ave. S.E., Suite 425, Minneapolis, MN  55414 (for appellant)

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from a sentence for first-degree test refusal, appellant Douglas Ibberson argues that the district court's imposition of a dispositional departure, based on findings made by the court rather than a jury, violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because we conclude that Blakely does not apply to dispositional departures in Minnesota, we affirm.

A jury found appellant Douglas Gerard Ibberson guilty of first-degree test refusal and of several other related offenses.  Ibberson had a zero criminal history score, which meant his presumptive sentence for the first-degree test refusal offense, a level VII offense, was a stayed sentence of 36 months.

At sentencing, the district court noted Ibberson's lengthy history of DWI offenses, along with other criminal offenses, and his prior violations of probation that resulted in revocations of probation.  The court concluded that probation did not work for Ibberson and imposed a dispositional departure by executing Ibberson's sentence.

            Ibberson argues that the dispositional departure, based on the judge's findings, violates the United States Supreme Court's holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            In Blakely, the Supreme Court held that the "statutory maximum" is the greatest sentence a judge can impose "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  Blakely, 124 S. Ct. at 2537, (emphasis omitted).  The defendant, it held, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at  2536, 2543.

            In another appeal, released along with this opinion, this court concluded that dispositional departures in Minnesota, which are based on broad offender characteristics, are similar to the indeterminate sentencing decisions approved in Blakely and, therefore, are not subject to Blakely's holding that the Sixth Amendment requires the jury to make the determination.  State v. Hanf, ___ N.W.2d ___ (Minn. App. 2004).  That reasoning applies with equal force in this appeal.  The district court's decision, based on Ibberson's lengthy record as detailed in the presentence investigation, illustrates precisely the type of decision-making held in Hanf to be indeterminate in nature and, therefore, not subject to Blakely's holding.  We note also that the district court's explanation to Ibberson that "I don't think that probation works for you" illustrates the degree to which the court's assessment of an offender's individual characteristics may overshadow the presumptive disposition provided in the guidelines.

            Based on the reasoning set forth in Hanf, we conclude that appellant was properly sentenced to a dispositional departure based on the findings of the court rather than a jury.

            Affirmed.