Lead Opinion
OPINION
In State v. Shattuck,
On July 19, 2003, Cindy Campbell telephoned the Hibbing police to report that James Allen had shown up at a residence where Campbell was visiting, and that she had fled into the bedroom. Campbell had previously reported having problems with Allen. When the responding officer, Captain Gielen, arrived, he saw a grey Ford Bronco in the driveway. Captain Gielen knew that Allen drove suсh a vehicle and that Allen’s driver’s license had been can-celled. The residence was that of Allen’s mother, who let Captain Gielen in. Allen was sitting in the kitchen. He told the officer he had not done anything, and that he had driven over to take a shower without knowing that Campbell was there. Captain Gielen detected a strong odor of alcohol on Allen’s breath and noticed that his eyes were watеry and bloodshot and that he was acting agitated.
When Captain Gielen and another officer escorted Allen outside, Allen’s brother drove up and asked if he could take Allen with him. Captain Gielen said no. Allen then asked if he could lock up his vehicle, and taking keys from his pocket, locked
At the police station, Allen was givеn the implied-consent advisory and refused to provide a breath test. The reason he gave for refusing was that he had just been sitting at his mother’s kitchen table. Allen repeatedly said he had not been driving and that his brother had given him a ride to his mother’s house. Allen’s brother later informed Captain Gielen that he had last seen Allen several hours before he drove over to his mother’s house to pick Allen up.
Allen wаs charged with first-degree test refusal and first-degree driving while under the influence of alcohol, both felonies. Minn.Stat. §§ 169A.20, subds. 1(1), 2; 169A.24 (2004).
The district court determined that Allen had a custody-status point because he was on probation when he committed the current offense. See Minn. Sent. Guidelines II.B.2.a. As a result, Allen’s presumptive sentence was 42 months, stayed. See Minn. Sent. Guidelines IV. Based on Allen’s numerous prior alcohol-related convictions and his history of absconding from probation, the court found that Allen was not amenable to probаtion and sentenced him to an executed 42-month prison term, an upward dispositional departure from the presumptive stayed sentence.
Allen appealed, arguing that the district court abused its discretion in imposing the dispositional departure. While the appeal was pending, the United States Supreme Court issued its decision in Blakely. The court of appeals affirmed, concluding that ample evidence supported the district court’s finding of unamenability to probation. State v. Allen, No. A04-127,
I.
The state argues that Allen forfeited consideration of his Blakely claim on appeal by failing to raise an Apprendi objection in the district court, and that the claim is not reviewable under the plain-error doctrine. Ordinarily, we will not decide issues that аre raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson,
There are recоgnized circumstances in which the defendant’s failure to raise a sentencing issue at the time sentence is imposed does not waive consideration of
In this сase, we choose to address Allen’s claim in the interests of justice. We do so because of the importance of determining Blakely’s applicability to upward dispositional departures and the assignment of a custody-status point, issues that affect numerous cases statewide. We also note that the Blakely decision was issued after briefing had been completed in the court of appeals, and Allen immediately notified that court of the decision. For Allen to have objected on Apprendi grounds at sentencing would have been of little avail; before Blakely was decided, our understanding of Apprendi was that the “statutory maximum” penalty authorized by the jury’s verdict was the maximum sentence allowed by the statute defining the offense. Shattuck,
II.
We turn, then, to the question whether the district court could constitutionally impose an upward dispositional departure, that is, execute Allen’s presumptive stayed sentence, based on its determination that Allen is unamenable to probation. Allen argues that unamenability to probation is a “fact” for Apprendi purposes, and that changing sentence disposition from probation to prison constitutes the kind of increase in punishment contemplated by Apprendi and its progeny as unconstitutional unless based on facts found by a jury or admitted by the defendant. The state contends that Blakely does not apply to dispositional departures under the Sentencing Guidelines. The state argues that: (1) the constitutional rule is concerned with the length of sentence, and a dispositional departure merely alters its mode of service; and (2) the rule requires the state to prove facts relating to the offense sought to be punished, not facts relating to the offender. The state also relies on State v. Hanf, in which the court of appeals held that dispo-sitonal departures based on offender-related characteristics do not violate Blakely because they are similar to traditional sentencing judgments made by judges in indeterminate-sentencing schemes, which under Blakely do not infringe on the province of the jury.
We first address the argument that Blakely does not apply to dispositional departures. Whether the constitutional rule is limited in aрplication to increases in sentence duration, as the state contends, turns on whether an upward dispositional departure “increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi,
Minnesota Statutes § 609.135, subdivision 1(a) (2004), authorizes the court, with certain exceptions not relevant here, to stay imposition or execution of a sentence. This provision was enacted as part of the Criminal Code of 1963, long before the creation of the Sentencing Guidelines. Act of May 17, 1963, ch. 753, art. I, § 609.135, 1963 Minn. Laws 1185,1195.
The presumptive sentences set out in the Sentencing Guidelines Grid are presumptive with respect to both duration “and whether imposition or execution of the felony sentence should be stayed.” Minn. Sent. Guidelines II.G. For cases below and to the left of a bold line on the grid, the sentencе is presumptively stayed unless the conviction carries a mandatory minimum sentence. Minn. Sent. Guidelines II.C, IV. Section II.D. of the guidelines states that the sentencing judge “shall utilize the presumptive sentence” unless the case involves substantial and compelling circumstances. We held in Shattuck that under Minnesota’s guidelines scheme, “imposition of the presumptive sentence is mandatory absent additional findings.” Shattuck,
In Blakely, the Court held that for Ap-prendi purposes the “statutory maximum” is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely,
We cannot agree with the argument that a stayed sentence is merely an alternative mode of serving a prison sentence and therefore is not subject to Blakely. A defendant whose felony sentence is stayed is subject to supervision for a period of years, and to incarceration in a local facility for no more than one year. Minn.Stat. § 609.135, subds. 1, 2(a), 4 (2004). By contrast, a defendant whose sentence is executed is incarcerated in a state corree-
This conclusion finds support in Supreme Court case law as well. In Ring v. Arizona, the Court held that the Sixth Amendment jury-trial right encompasses both the fact-finding necessary to durationally increase a sentence and the fact-finding necessary to impose the death penalty.
Upward dispositional departures under the guidelines may be based on either offender- or offense-related aggravating factors. State v. Chaklos,
We do not believe that the use of an offender-related factor to depart from the presumptive sentence, or its similarity to factors considered under Minnesota’s former indeterminate-sentencing schemе, insulates the departure from the constitutional rule first enunciated in Apprendi. The rule applies to “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum.” Booker,
We hold that when the district court found that Allen was unamenable to probation, and on that basis executed his presumptively stayed sentence, it violated Allen’s Sixth Amendment right to have a jury make that determination using a reasonable-doubt standard. We further hold that because Minn. Sent. Guidelines II.D authorizes the district court to make such an unconstitutional upward dispositional departure upon finding an aggravating factor without the aid of a jury, that provision is unconstitutional as applied.
We therefore reverse the imposition of the upward dispositional sentencing departure and remand to the district court for resentencing in acсordance with this opinion.
III.
Allen also claims that the assignment of a custody-status point in calculating his criminal history score violates Blakely. Allen argues that the determination that he was on probation when he committed the current offense does not come within the prior-conviction exception to the constitutional rule.
A defendant’s criminal history score is one of the axes on the Sentencing Guidelines Grid that determines the presumptive sentence. Minn. Sent. Guidelines II.B, IV. It is comprised of the defendant’s prior convictions, applicable juvenile record, and custody status at the time of the current offense. Minn. Sent. Guidelines II.B. A custody-status point is assigned if the defendant was on probation or another specified form of release when he or she committed the current offense. Minn. Sent. Guidelines II.B.2.
The primary reason for excluding a prior conviction from the constitutional rule is that the prior conviction itself has been established by procedures that satisfy constitutional jury-trial and reasonable-doubt guarantees. See Apprendi,
In Shattuck, we held that for felonies other than first-degree murder, the presumptive sentence prescribed by the Sentencing Guidelines is the maximum a judge may impose based solely on facts reflected in the jury verdict оr admitted by the defendant. Shattuck,
For these reasons, we hold that the district court’s assigning Allen a custody-status point to calculate his criminal history score did not violate the Sixth Amendment.
IV.
Finally, Allen requests that we vacate the distriсt court’s order requiring him to make a $200 copayment for public defender services. The order was issued pursuant to Minn.Stat. § 611.17, subd. 1(c) (2004), which we subsequently declared unconstitutional in State v. Tennin,
Allen did not raise this issue in the court of appeals or present it in his petition for review, which would ordinarily bar him from raising it now. We nevertheless address the issue in the interests of justice and vacate the order.
Reversed and remanded.
Notes
. Both offenses are forms of first-dеgree driving while impaired, a severity level seven offense under the Sentencing Guidelines. Minn.Stat. § 169A.24; Minn. Sent. Guidelines IV, V. All references to the Sentencing Guidelines in this opinion are to the 2004 version.
. We recently ruled that Blakely does not apply retroactively to cases on collateral review. State v. Houston,
. We note that in Apprendi and one subsequent case, the Court has enunciated the principle that it is permissible for a judge “to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Apprendi,
. The guideline reads in pertinent part:
2. One point is assigned if the offender:
a. was on probation, parole, supervised release, conditional release, or confined in a jail, workhouse, or prison pending sentencing, following a guilty plea or verdict in a felony, gross misdemeanor or an extended jurisdiction juvenile case, or following a felony, gross misdemeanor or an extended jurisdiction juvenile conviction;
b. was released pending sentencing at thе time the felony was committed for which he or she is being sentenced;
c. committed the current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony, gross misdemeanor or an extended jurisdiction juvenile conviction. This policy does not apply if the probationary sentence for the prior offense is revoked, and the offender serves аn executed sentence; or
d. became subject to one of the criminal justice supervision statuses listed in 2.a above at any point in time during which the offense occurred when multiple offenses are an element of the conviction offense or the conviction offense is an aggravated offense.
Minn. Sent. Guidelines II.B.2.
. At sentencing, Allen's counsel stated that the custody-status point was assigned because Allen was "still technically on probation,” but argued that this was not significant because, if Allen’s earlier sentence had been executed as he requested, the point would not have been assigned. We note that Minn.Stat. § 609.135, subd. 7 (2004), prohibits an offender from demanding execution of a stayed sentence if he or she "will serve less than nine months at the state institution,” which apparently was the case here.
Concurrence Opinion
(concurring in part and dissenting in part).
I concur with the majority that the imposition of an upward dispositional departure under the Minnesota Sentencing Guidelines, based upon a finding of una-menability to probation, violated appellant’s Sixth Amendment right to a jury trial. I also concur with the majority that the district court did not violate the Sixth Amendment by assigning appellant a custody-status point in determining appellant’s presumptive sentence.
I part comрany from the majority as to the remedy, for the reasons expressed in the dissent in State v. Shattuck,
Having concluded the guidelines are nonseverable, the entire sentencing guidelines regime is unconstitutional and I would instead remand for sentencing under the statutory range for the offense committed.
. Under the statute, Allen could receive a sentence of imprisonment for not more than seven years, a fine not exceeding $14,000, or both. Minn.Stat. §§ 169A.20, subd. 2; 169A.24 (2004).