State of Minnesota, Respondent, vs. Julius Barker, Appellant.

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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006). STATE OF MINNESOTA IN COURT OF APPEALS A07-2171 State of Minnesota, Respondent, vs. Julius Barker, Appellant. Filed November 4, 2008 Affirmed Crippen, Judgeï ª Ramsey County District Court File No. K0-01-1237 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Ngoc Nguyen, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant) Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Crippen, Judge. ï ª Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION CRIPPEN, Judge In this postconviction appeal, appellant Julius Barker seeks to modify his sentence for second-degree unintentional murder. Appellant argues that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because the sentencing judge determined he was on probation at the time of the offense, which added a point to the criminal history score used to determine the sentence under the governing guidelines. We affirm. FACTS In exchange for appellant s guilty plea on a charge of second-degree unintentional murder, the state agreed to dismiss other charges and seek a sentence of 186 months imprisonment, which was the upward limit of the presumptive sentence range under the Minnesota Sentencing Guidelines based on appellant s criminal history score. In September 2001, the district court sentenced appellant to 186 months imprisonment. Appellant filed a pro se petition for postconviction relief in April 2005, which the district court dismissed. Appellant filed a second pro se petition for postconviction relief in July 2007, requesting a sentence reduction based on Blakely. The district court denied appellant s 2007 petition, and this appeal followed. DECISION Appellant challenges the validity of his sentence, arguing that it should be modified because it is based on an invalid criminal history score of two. One of the two criminal history points was a custody status point for being on probation at the time of the 2 offense. Appellant suggests that his sentence violates Blakely because the question of whether he was on probation at the time of the offense was decided by the sentencing judge, not by a jury. Under Blakely, any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury or admitted by the defendant. 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000)); see also Minn. Stat. § 244.10, subd. 5 (2006) (providing that facts supporting request for an aggravated sentence must be presented to a jury). But we have previously held that decisions regarding custody status points are for the district court because they are analogous to Blakely s exception for the fact of a prior conviction. State v. Brooks, 690 N.W.2d 160, 163 (Minn. App. 2004) (quotation omitted), review denied (Minn. Dec. 13, 2005); see also Minn. Sent. Guidelines II.B.2.a (requiring assignment of one custody status point when the defendant committed the offense while on probation following a felony or qualifying gross misdemeanor conviction). Thus, the sentencing judge s assignment of one custody status point, based on an independent determination that appellant was on probation at the time of the offense, did not violate Blakely.1 Affirmed. 1 Respondent also contends that Blakely does not apply retroactively to appellant s sentence because his sentence was final before that decision was issued. We need not review this argument in light of our conclusion that appellant s argument fails on its merits. 3

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