State v. Rourke

Minnesota, Respondent, STATE ROURKE, Appellant. Allen

Chad

No. A07-937.

Supreme Court of Minnesota.

Oct. Swanson,

Lori Attorney General, St. Paul, MN; Glasrud, Charles C. Stevens Morris, MN; County Attorney, and Thom- Ragatz, as R. Special Assistant Stevens County Attorney, Paul, MN, St. for re- spondent. Russett,

Steven P. Assistant State Pub- Defender, Paul, MN, lic St. for appellant. OPINION ANDERSON, BARRY, G. Justice. Appellant Chad Rourke began and E.B. in dating while high E.B. was in school. They had two together. children Throughout the relationship, phys- Rourke ically E.B., abused injuring her on several occasions. E.B. separated and Rourke and resumed the relationship several By early times. again E.B. had once Rourke, ended her relationship with but Rourke, E.B., along with living was still at Morris, E.B.’s mother’s house in Minneso- ta. 28, 2003, January E.B.,

On driving her van, pick up went to Rourke at a friend’s arrived, in house Morris. E.B. When Rourke ordered passenger’s her into the seat, keys, took the and drove around Mor- ris while threatening to kill her. Rourke was speeding driving erratically. E.B. feared for her life. sped through stop sign

Rourke pole. attempted crashed into a Rourke pull E.B. from the van to make it look as if she was the legs driver. Because her were car, so, pinned he was unable to do and he left the scene. E.B. suffered shat- ankle, tered requiring place- bones her plate ment of screws and a metal in her leg. remand, provided Rourke pleaded guilty first-degree as- On

Rourke (2008) sault, 609.221, § notice that it intended to submit the fol- Minn.Stat. subd. sentencing factors to lowing aggravating an- (prohibiting person assaulting from (1) harm). plea trial: inflicting great bodily other and (2) (3) cruelty, agreement, abuse agreed He to a maximum sentence of 128 (4) vulnerability position power, of a months, upward departure from the Following pretrial of the victim. hear- He presumptive 98-month sentence. ad- only ing, the district court concluded that mitted he drove E.B.’s van a reckless the factors of and vul- and that he so with the intent manner did nerability of the victim would be submitted scaring intimidating her. He also jury guide- to the because the admitted that the collision caused her aggravating sentencing lines’ list of factors great bodily exchange harm. In for his plea agreements did not include or abuse plea, the State dismissed five other a position power. of of The State did not charges agreed not to seek a sentence pretrial appeal challenging ruling file a longer than 128 months. of the district court. convicted, previously Rourke had been Blakely February A trial was held in occasions, separate assaulting on two of case, At 2007. the close of the State’s imposed E.B. The district court the maxi- Rourke made a motion that the district permitted plea mum sentence under the equivalent court described as “the of a agreement, citing prior Rourke’s two con- judgment acquittal” of that arguing E.B.; involving victions Rourke’s abuse of particular cruelty factor should not be her; his position power of and control over jury submitted to the because it was un- offense; cruelty the particular constitutionally vague. The district court agreement. the plea reserved its decision on Rourke’s motion appeal, In Rourke’s first v. following special State Rourke and submitted the inter- (Rourke (Minn. (1) I), 35, rogatories jury: to the Was E.B. App.2004), rejected appeals particular cruelty January court of treated with (2) argument his E.B. particularly there were no substan 2003? and Was compelling impose January 28, tial and reasons to more vulnerable on due to than presumptive age, infirmity, sentence. We physical capacity, reduced review, granted capacity? vacated the decision of the or reduced mental The district appeals, court of for request jury and remanded consid court denied the State’s for a light Blakely Washington, defining “particular eration in v. instruction vulnerabil- ity” including repeated U.S. 159 L.Ed.2d attacks and in- (2004). (Rourke In Rourke timidation Rourke and a level of ex- II), A03-1254, violence, No. at *2-3 escalating ongoing WL treme and ( 8, 2005), kill, Minn.App. Mar. the court of threats to and efforts to control and appeals upward Although concluded Rourke’s intimidate E.B. the district court durational sentencing departure requested violated declined to include the defini- instructions, his to a trial jury Blakely. jury under tion the State was Consequently, theory it permitted argue remanded resentenc- this to the ing Blakely. jury.1 jury consistent with found that E.B. was argued ically example, For the State ''infirm.'’ long history phys- that the of abuse made E.B. (Minn. 2007). III, treated with but Sept. Rourke particularly she was not vulnerable. WL at *6. The appeals court of that, also held although the district court trial, After the the district court improperly “particular defined vulnerabili- granting issued a written order Rourke’s ty,” retrial on that aggravating factor judgment acquittal motion for and va- would violate the prohibition constitutional cating jury’s finding of “particular cru- against double jeopardy because the order, elty.” In its the district court ex- already rejected had it. *7. plained that “particular cruelty” the term was unconstitutionally vague and granted that We petition Rourke’s for review authority” provide ju- courts “have no on the issue of whether the Minnesota “particular rors a definition of cruelty.” Sentencing Guidelines’ cruelty The district court sentenced Rourke to 103 aggravating sentencing factor is unconsti- months, high end of the presumptive tutionally vague and whether the State range. post-trial seek appellate review of a district court’s Blakely rulings. trial appealed The State this sentence. granted also petition the State’s for cross- (Rourke III), A07-937, State v. Rourke No. review on the double-jeopardy issue. 2105445, 2008 WL at (Minn.App. May *3-5 20, 2008), appeals the court of reversed the I. district court’s conclusion that aggra A criminal may law be unconsti vating “particular factor cruelty” is uncon tutionally vague for either of indepen two stitutionally vague. appeals The court of First, dent reasons. it fail to provide also held that the district court abused its the kind of notice that will enable ordinary discretion both in concluding ag that the people to understand what conduct it pro gravating factor a position “abuse of hibits; second, it may authorize and even power” could not be submitted to encourage arbitrary discriminatory in refusing to define the Colorado, enforcement. Hill v. 530 U.S. factor “particular vulnerability” to include 703, 732, 2480, 120 147 S.Ct. L.Ed.2d 597 attacks, vulnerability by repeated created (2000); Bussmann, see also State v. 741 intimidation, escalating and extreme and (Minn.2007). 79, N.W.2d 83 ongoing violence. at Id. *6-7. appeals The court of too, remanded for a vague “So sentencing provi new Blakely trial and resentencing, may pose with sions questions constitutional if “particular cruelty” to be they defined to the do not clarity state with sufficient Weaver, consistent with State v. consequences of violating given 793, (Minn.App.2007) (defining criminal statute.” United States v. Bat “particular chelder, cruelty” 114, “signifi- 123, 2198, conduct 442 U.S. 99 S.Ct. cantly (1979). more cruel” than usually However, that asso- 60 L.Ed.2d 755 the sen conviction, ciated with the tencing offense of uncertainty caused two stat noting in “particular conduct, instances which prohibit cruel- utes that the same but found, ty” including setting was fire a prescribe penalties, to different does not ren alive, victim who was still leaving a victim der unconstitutionally vague the statutes to die alone without notifying emergency as long unambiguously as each statute personnel, degradation of the victim specifies activity proscribed and the gratuitous pain), infliction of rev. penalty denied available on conviction.2 Id. cites Batchelder 2. The dissent to apply vagueness its claim that we should Wivell, explained aggrava judge A the court provides statute sentencing in factors in the federal determining ting discretion defendant’s subject vagueness sentence is not unconstitutional unless it are not guidelines prohibition against violates the cruel and challenges guidelines because the federal Christie, v. punishment. unusual State illegal they “do not define conduct: (Minn.1993). In judges guidance directives to for their 420, 428, Godfrey Georgia, criminals, v. 446 U.S. not to citi sentencing convicted (1980), 64 L.Ed.2d large.” Citing at 160. Lock zens held that Supreme Ohio, United States Court v. 438 U.S. 98 S.Ct. ett prohibition against cruel and unusual (1978), Eighth 57 L.Ed.2d 973 judge punishment triggered was when explained further that “there is no Circuit to a imposed pursuant a death sentence constitutional to such directives.” provided statute that standardless sen Wivell, Eighth 893 F.2d at 160. The Cir tencing discretion. recently holding cuit reaffirmed the Wivell Jefferson, v. 267 Fed. United States previously rejected argu have (8th Cir.2008) Appx. (explaining Godfrey requires ment that the decision us -Blakely that the to make the post decision apply vagueness doctrine to the sentencing guidelines advisory federal did Minnesota Guidelines’ stan ag not alter its conclusion in Wivell sentencing departures. dards for gravating sentencing factors the federal (Minn. Givens, subject 1983). vagueness are not Givens, explained we that “more challenges). routine not in decisions—those cluding the death sentence” were not con argues Rourke Givens and Wivell templated by Godfrey the decision.3 Id. at controlling in are not this case because they Blakely required were decided before a district court to submit the Eighth

The Circuit a simi has reached Sentencing in the regarding lar conclusion the federal sen factors listed Minnesota tencing guidelines. Guidelines to a Rourke also takes United States v. Wi Cir.1990). vell, (8th position 893 F.2d 160 In the that the district court’s sub- sentencing Eighth doctrine to the factors listed in 4. The Circuit reasoned: Minn. Sent. Guidelines II.D. But Batchelder right Because there is no constitutional to authority persuasive is the issue be- not sentencing guidelines or, generally, more — sentencing depar- cause it did not involve a discretionary application a sen- to less provision suggests ture and because it that the permitted prior tences than that require Constitution does not cer- the Guidelines—the limitations Guidelines tainty. place judge's on a discretion cannot violate process by a defendant's to due reason Givens, 3. Before our decision in we consid being vague. It therefore follows that dangerous ered a defendant’s that the claim unconstitutionally the be Guidelines cannot statute, (1978), § offender Minn.Stat. 609.16 vague applied [the defendant] as to this unconstitutionally vague alleg was because it vague guidelines case. Even cabin discre- edly permitted the "use of unfettered discre tion more than no at all. What a rendering tion the statute standardless.” arbitrary capri- Adams, defendant call (Minn. cious, legislature may 1980). discretionary, call discussing Without the threshold issue permits legislatures and the Constitution apply vagueness of whether we should doctrine, lodge a of discretion considerable amount we held that the statute was not judges devising unconstitutionally vague applied the de with sentences. Wivell, fendant. Id. 893 F.2d at 160. special interrogatory asking guilty plea guilty mission or if verdict “there exist jury identifiable, substantial, an aggravating to find factor list- and compelling ed the Minnesota Guide- support circumstances to a sentence out- namely whether E.B. was “treated range grids.” Id.; side the on the see also lines— Shattuck, particular cruelty” with the State v. “confuse[d] — (Minn.2005) judge.” role of He asserts that (explaining that a “district jurors in a although Blakely jury trial depart has discretion to ‘only ag- if any gravating “must decide ‘additional fact’ of conse- or mitigating circumstances are ” quence judge’s to a to upwardly present.’ Best, decision (quoting State v. (Minn.1989))). depart[,] judge still a decides whether fact found distinguishes phrase identifiable, “there exist substan- typical tial, offense from the offense to compelling such sup- circumstances to degree departure is warranted.”5 port sentence outside range on the grids,” reflects two requirements distinct Blakely, explained the Court for an upward (1) sentencing departure: (other any prior than a convic fad finding factual that there exist one or more tion) which necessary is a sen circumstances not reflected in guilty exceeding tence the maximum authorized (2) guilty plea, verdict or explana- by the aby guilty plea facts established or tion why district court as to those guilty verdict must be admitted circumstances create a substantial and proved jury beyond defendant or to a compelling reason to impose a sentence Blakely Washington, reasonable doubt. outside range grid. on the As dis- 296, 301, 303-04, U.S. S.Ct. below, cussed interpretation this sup- (2004); 159 L.Ed.2d 403 see also United ported by language of Minn. Sent. Booker, 220, 244, States v. 543 U.S. Guidelines II.D. (2005). 160 L.Ed.2d 621 For offenses,6 felony most the maximum sen Blakely, Consistent with Minn. by guilty tence authorized plea guilty provides Sent. Guidelines II.D that a dis top verdict is the of the presumptive sen trict court “must afford the accused an tencing range provided in the opportunity Minnesota to a jury have trial on the Sentencing grid Guidelines’ because the additional that support depar the facts guidelines expressly require a district proved beyond ture and to have the facts a pronounce added.) court to a sentence within (Emphasis reasonable doubt.” If range grid.7 on the Minn. Sent. Guidelines proves the State the additional facts “be II.D. But doubt, allow a yond district a reasonable the [district to exceed the maximum may sentence court] exercise discretion to de [its] by by authorized the facts established a part presumptive from the sentence.” Id. purposes Booker, opinion, 5. For ly of this the term "ad- excised. See United States v. 220, 245, ditional 249-50, facts” means those facts that were U.S. not reflected in the verdict or admitted (2005) (holding L.Ed.2d 621 that the federal by Rourke but that would a substan- sentencing guidelines discretionary). were compelling depart tial and reason to from the rejected reasoning applied that line of presumptive guideline sentence. See, Sentencing to the Minnesota Guidelines. Allen, e.g., State v. 706 N.W.2d 45-46 First-degree 6. murder is excluded from (Minn.2005); Barker, State v. 705 N.W.2d guidelines by law. Minn. Sent. Guidelines V. Shattuck, (Minn.2005); 771-72 (Minn.2005). response Blakely, language In to similar in 704 N.W.2d sentencing guidelines judicial- the federal was discretion, however, exercising specific In tended to describe situations in- volving a small number of cases.” Id. writing district court “must disclose or on the record the substantial language Based on the of Minn. Sent. compelling circumstances that make II.D, par- we conclude that the Guidelines departure appropriate more than the cruelty aggravating ticular factor is a rea- presumptive sentence.” Id. other explains why son that the additional facts words, why explain district court must jury provide found the district court the circumstances or additional facts found compelling a basis for im- substantial jurors provide in a trial position range of a sentence outside the on compelling district court a substantial and grid. This conclusion is consistent impose to a past descriptions aggravating reason sentence outside the with our why factors as range grid. explanations explaining on the These do reasons the facts facts, provide finding not involve nor is it a case district court role compelling impose substantial traditionally basis belonged has to the range grid. a sentence outside the on the Consequently, discretionary these acts Schantzen, example For v. subject the district court are not (Minn.1981), we ex- rule in Blakely. announced plained that the fact that the defendant question presented in this case is sprayed the handcuffed victims with chem- aggravating particu- whether the factor of supported icals the district court’s stated cruelty lar in Minn. listed Sent. Guidelines cruelty) (particular imposing reason II.D is an “additional fact” which must be range sentence outside the on It grid. jurors in Blakely submitted to the trial also is consistent with the nondeferential why which explains “reason” the addi- manner aggravating we use review the tional provide facts the district court a factors on which a district court relied compelling substantial and reason or basis imposing a sentence the presump- outside impose a sentence the range outside range sentencing guideline tive on the grid, and which pur- are outside the grid. Leja, See State v. Blakely jury. view of a (Minn.2004) (ex- (plurality opinion) plaining although the facts of the case The Minnesota Guidelines reprehensible, they provide were did not describe the factors listed in compelling substantial and reason to de- Minn. advisory Sent. Guidelines II.D as an part, including particular cruelty); Holmes and “nonexclusive list of which factors State, (Minn.1989) be used as departure.” reasons for (explaining that in final analysis, “the our added). (emphasis The factors include particular decision whether a durational that particu- “[t]he victim was treated with departure by a judge justified trial was cruelty lar for which the individual offend- collective, ‘must be on our collegial based er responsible.” should be held Al- experience large reviewing number of though not controlling, appeals judicial criminal from all the dis- guidelines’ explain comments that “[t]he ” Norton, (quoting tricts’ provided Commission a non-exclusive list (Minn.1982))). 142,146-47 of reasons which be used as reasons departure” when it aggrava- identified Although the rule announced ting and mitigating factors. Minn. Sent. Blakely requires now that the facts of the Guidelines cmt. II.D.201. by jury, The comments case found it require be does not further explain that the “factors are in- us to particular abandon our view that the facts, cruelty factor is a ex- aggravating reason additional which were neither admit- defendant, ted necessary nor plaining why provide of the case facts prove offense, the elements of the but compel- the district court a substantial and support which departure. reasons for But ling imposition basis for of a sentence out- question of whether those additional range grid.8 side the on the hold that provide facts the district reason to a district court a jury must submit to depart does not involve a factual determi- question of proven whether the State has and, therefore, nation need not be submit- beyond a reasonable doubt the existence of jury.9 ted to a (3d opines 2008) 8. The dissent that the definition of Crim. WPIC 300.10 ed. (stating that particular cruelty developed through "[jjuries we have good position are not in a to make components: gratuity our case law has two [typicality decisions]-they have information typicality. explains The dissent only that about the current offense. For this rea- son, "gratuity” involves determination of wheth- judges traditionally have decided these gratuitous physical, er the defendant inflicted types of issues.... It is not even clear how psychological, pain goes or emotional that presented such evidence jury, would be beyond statutory what is inherent in the ele- through expert testimony.”). other than See ments of the crime. The dissent further ex- Burke, also Kevin S. State v. Dettman: The plains "typicality” that involves determina- End Revolution or Just the of tion of whether the defendant's conduct was Beginning?, 33 Wm. Mitchell L.Rev. typically than more serious involved in (2007) (discussing the difficulties in ask- agree the commission of the crime. We ing Blakely juries question to resolve the of cases, pre-Blakely in our we considered the "require[s] because it con- concepts gratuity typicality part of text”). particular-cruelty aggra- our discussion of the vating factor. But in those cases the distinc- 9. This conclusion is not inconsistent with our Jackson, tion between the facts found and the reasons decision in State v. 749 N.W.2d 353 (Minn.2008), Shattuck, given departure import for the was of little or State v. (Minn.2005), because the district court served as both fact- because those cases did not clarify squarely finder and sentencer. We now address the issue in this case. In Jackson, aggravating "particular cruelty” factor majority is a both and the dissent trial, departing reason for and not an additional noted that at the the district fact to be found. jurors court had not asked the whether Jack- particular son committed the with offense clear, question To be of whether the cruelty. (majority 749 N.W.2d at 360 n. 3 physical, psychologi- defendant inflicted the J., (Gildea, opinion), dissenting). 3n. cal, pain alleged by or emotional the State is squarely fully But that discussion did not explanation one for the But the as to Instead, presented address the issue here. it why the facts found made the severity focused on whether the of the vic- defendant’s offense more serious than that injuries tim’s could be used to typically involved in the commission of the upward sentencing departure. district court’s crime—the victim was treated with Shattuck, the court did not need to address cruelty for which the individual offender the issue of whether the factors responsible given by should be held —is listed in Minn. Sent. Guidelines II.D were court. recog- facts to be found or were gratuity typ- dissent’s discussion of why upward departure may nized reasons icality appreciably is not different then our appropriate presumptive be more than the analysis, except that the dissent concludes sentence based on the facts found because in typicality question jury. that is a for the But improperly either event the district court had Washington even the comment to the Pattern acted aas fact-finder. 704 N.W.2d at 142. Jury Instruction —on which the dissent re- II.D.01, questions typicality Citing whether can or Minn. Sent. Guidelines cmt. lies— juty. should be argues aggravating submitted to the See the 11A dissent that factors Comm, Instructions, Sup.Ct. Jury Wash. should be submitted to a See Minn. Practice, Instructions, Jury (stating Wash. Pattern Sent. cmt. II.D.01 that Guidelines 922 cruelty” gratuitous involves the infliction Blakely Because we have concluded that “ cruelty usually a kind not pain a district court to submit ‘of require

does not of associated with the commission of the aggravating the factor of ” Norton, question.’ fense in v. State jury, distinguish to a Rourke’s effort to (Minn.1982) 142, (quoting N.W.2d argues fails.10 Rourke Givens Wivell Schantzen, 308 N.W.2d jury to expected that a cannot be deter- (Minn.1981)); Smith, cruel, see also State v. particularly mine when a crime is (Minn.1996) (noting that jurors experience have little to no most “particular cruelty” gratuitous involves in Blakely violent But does not with crimes. pain). protect fliction of These standards require jury that a determine whether Rather, against arbitrary enforcement of the sen particularly crime was cruel. tencing guidelines. jury Blakely requires that determine (i.e., “additional facts” the defendant Wivell, Based on Givens sprayed the handcuffed victims with chem- void-for-vagueness reaffirm that we icals) judge may rely support which a on to apply aggravating doctrine does not to the explanation why his or her as to those particular cruelty. factor of decision Our additional facts a substantial and today is consistent with other courts that (i.e., compelling reason the defendant’s that, have affirmed even after particular cruelty made the offense more Apprendi Jersey, v. New 530 U.S. than typically serious involved (2000), vague 147 L.Ed.2d 435 crime) impose commission of the a sen- challenges apply ness do not presumptive sentencing tence outside the Idowu, guidelines. E.g., United States v. range. aggravating Because the factor of (7th Cir.2008) (hold 520 F.3d particular cruelty, by Minn. as defined ing vagueness challenges apply do not II.D.2, Sent. Guidelines is not submitted to but, sentencing guidelines they even if jury, reasoning pre-Blakely did, challenged guideline was not un applicable. cases is still constitutionally vague). therefore af We Blakely, repeatedly applied Before we appeals’ firm the court of decision that the factor, cruelty” “particular relying on aggravating sentencing “particu factor of See, experience. e.g., our collective cruelty” unconstitutionally vague. lar is not (Minn. Griller, reverse, however, We its order to submit 1998). explained “particular jury have the factor to the with a definition of We jury defendant has the to a 10. The "[a] trial to dissent claims that our reliance on concedes, aggravating misplaced. determine whether or not factors Givens is The dissent however, doubt”). beyond judicial proved a reasonable that Givens controls sen- acknowledge tencing that this comment is inconsis decisions. Because we conclude that holding. aggravating sentencing particu-

tent with our But the comment is factor of reason, controlling authority cruelty explaining judicial not on this issue. lar is a Asf State, (Minn. aha v. determination that the "additional facts” 2003) (explaining jury departure ap- that comments to the found make more sentence, propriate presumptive Minnesota Guidelines are adviso than the our ry controlling). misplaced. Despite rather than The dissent also reliance on Givens is not pattern jury contrary, relies on the But we instructions. dissent's claim to the need not, not, pattern persua instructions are not and do reach the issue of whether authority they argu precludes vagueness challenge sive because reflect our Givens (which ably imprecise phrase "aggravating by jury use of the facts that must be found we past factor" in cases where the issue of describe as facts” and which the "additional erroneously "aggrava- whether an factor should be sub dissent asserts include factors”). squarely ting sentencing mitted to the not was before us. Instead, Barrett, if cruelty.” procedural another “particular of rules. remand,

Blakely at 785. trial is held on the dis- to Blakely court should submit the trict post -Blakely Our amendments to special interrogatories one or more the Minnesota of Rules Criminal Proce proven, ask whether the State has controlling dure are not in this case be doubt, a a beyond reasonable factual cir- cause the amendments became effective alleges cumstance which the State would after sentencing. Rourke’s Nevertheless, a provide the district court substantial and the amended rules inform our analysis of (i.e., compelling reason particular cruelty) proper the appeal avenue for the State depart to from presumptive guideline the it seeks of a when review district court’s sentence. decision not a particular to submit ques jurors.

tion to the Blakely Under the II. rules, amended the notify State must turn to of of question anticipated whether the defense upward-departure We trial, of appeals grounds court erred it before applicability when allowed the appeal grounds State the district court’s of noticed is decision an issue the abuse-of-power not to submit district court question is to resolve at the omnibus Blakely jurors. stage of the to the Rourke claims the case. See Minn. R.Crim. P. notice); appeals strictly of 7.03 (requiring court failed to construe Minn. R.Crim. P. 11.04 right appeal (requiring the State’s under Minn. the district court at the P. omnibus agree. hearing R.Crim. 28.04. We “to determine whether the law and proffered evidence support an ability ap State to sentence”). aggravated Pursuant to the C.W.S., is re peal limited. See In 267 procedures set forth in Minn. R.Crim. P. (Minn.1978). There must 28.04, subd. pretrial the State file a statute or that permits be a court rule appeal challenging the district court’s om or appeal, the issue must “arise neces rulings. nibus This pretrial-appeal right is implication” sary from an issue where the limited, in part, because the State cannot right appeal expressly provid State’s a pretrial appeal file after jeopardy has strictly ed. construe the rules 28.04, attached. Minn. P. R.Crim. subd. governing appeals by the State criminal 2(8). sum, post-Blakely our amend appeals cases because such are not fa procedure ments to the rules of criminal Barrett, vored. State v. pretrial process create for State chal (Minn.2005). lenges to a district court’s decision not to question Blakely submit to the Minnesota Rule of Criminal Pro mind, jurors. With this process we 28.04, 1(2), permits cedure subdivision consider whether at the time of Rourke’s appeal a felony “any case to from sentencing, to appeal State’s imposed stayed by sentence or the trial or imposed stayed from sentence neces appeals court.” The court of concluded sarily ability to implied challenge this right ability includes the to chal pretrial district court’s decision not to sub lenge district court’s decision on which a particular question mit questions Blakely jury. to submit to jurors. III, 2105445, at Rourke 2008 WL *6. The novo our A stays de standard controls review of district court imposes sen- appeals’ hearing, at a which decision because tence is a presented an interpretation governed by issue Minn. R.Crim. P. proceeding involves felony appeal argues, from a sentence Rourke the district 27.03. On held, provision guidelines that the in the stayed, we “determine whether imposed allowing departures “par- for based on the statutory is inconsistent with sentence un- cruelty” aggravating ticular factor was unreasonable, requirements, inappropriate, constitutionally vague. Specifically, excessive, unjustifiably disparate, or not guidelines that Rourke contends findings warranted of fact issued unconstitutionally vague because there is Minn. P. court.” R.Crim. a crime explaining no clear definition when construed, 28.05, strictly subd. 2. When particular cruelty. is committed with In- language necessarily imply this does not conduct, stead of a clear definition of such challenge pretrial a district court’s argues Blakely juries Rourke are left to particular ques- decision not to submit a subjective apply ever-changing defini- jurors Blakely tion to the in a trial. We factor, resulting tions of this un- appeals’ the court therefore reverse of de- certainty departure provision makes this of post-trial cision to allow the State to file a guidelines unconstitutionally vague. appeal challenging the district court’s deci- already guide- have decided that the abuse-of-power sion not to submit lines are unconstitutionally vague. not question jurors. We need Givens, not, not, and do consider the merits of the (Minn.1983). argues Rourke that Givens regarding abuse-of-pow- State’s claims sentencing depar- does not control because question. er longer tures are “no ‘routine [the] sentenc- Rather, ing by judge.” made decision[s]’ III. contends, Rourke these decisions now “re- Although originally sought re- State quire[] fact-finding by large.” citizens at appeals’ view of the court of decision that But, court, in briefs to this Rourke and the retry particular vulnerability Rourke on agreed “particular cruelty” State that the jeopar- would be in violation of the double factor should not be submitted to a Blake- bar, dy the State now concedes that the ly finding. parties for a factual court of appeals correctly analyzed this held, agreed, majority and the has now issue and the State should not permit- be concept “particular that the relative cru- particular vulnerability ted to submit ato elty” conclusion to be reached Thus, if granted. a new trial is we sentencing judge and not a fact to be not, need and do not reach this issue. We by a Blakely jury. agree. found I See remand the case to the district court for Jackson, 363 n. 3 proceedings further consistent with our (Minn.2008) (Gildea, J., dissenting). Be- opinion. Blakely juries cause should not be asked conclusions, comparative to make such as in part, part, Affirmed reversed in par- whether a crime was committed with remanded. cruelty, ticular there is no basis argument Rourke’s that Givens is not dis- GILDEA, (concurring). Justice positive question. of the constitutional I agree I majority with the “par- controls, would find Givens and on the cruelty” ticular aggravating factor in the case, uphold same basis as we did Minnesota Sentencing does not constitutionality Guidelines make guidelines unconstitutionally against vagueness Rourke’s void for chal- vague. Givens, I I separately explain why lenge. write See (“The reach this conclusion. application vagueness argument to more routine decisions— are factual E.g., nature. State v. including Chauvin, those not the death (Minn.2006) sentence —is 723 N.W.2d contemplated by Gregg Georgia, not [v. (stating that impaneling jury was “nec 428 U.S. 96 S.Ct. 49 L.Ed.2d 859 essary ... to vindicate [defendant’s] Sixth (1976),] Godfrey and Georgia, [v. 446 U.S. jury Amendment to a determination 420, 100 (1980),] 64 L.Ed.2d 398 of aggravating sentencing factors”); State decisions. vagueness Defendant’s claim of (Minn. v. Thompson, 2006) guidelines, either on their face or as (stating that after jury, waiver of context.”). applied, misplaced is in this the district court “engaged judicial fact-finding and found several aggravating (dis- ANDERSON, H„ PAUL Justice factors”); Allen, senting). (Minn.2005) (stating that use of an of respectfully I fender-related factor or similarity dissent and do so for three its First, traditional sentencing judgments reasons. the Minnesota did not departure insulate the response Guidelines from the Appren- and our rule). di/Blakely recognize case law that aggravating fac- tors, including particular cruelty, are facts In his dissent in Thompson, Justice Sam by Second, be jury. must found a Hanson dynamics articulated the of a sen- finding of cruelty exposes the tencing departure, explaining that there defendant to a exceeding sentence are two functions: the fact-finding function by maximum jury’s authorized verdict and the discretionary-departure function: guilty by therefore must be found When we assumed that the district court Third, I due-process conclude that perform could function, the fact finding vagueness apply concerns to sentencing we had no occasion to reflect on the Therefore, I factors. would remand to the additional discretion that the district district court for a new sentencing trial. possesses court to determine whether post -Blakely changes the sen- and precisely depart how to finding after tencing guidelines pattern in- jury that there were aggravating facts. Now require structions that aggravating sen- that Blakely has clarified that the fact tencing factors such as finding function must by be done be jury they submitted to a because jury, defendant, unless waived facts. The require jury now court, the other function of the district trial on the “additional facts to exercise discretion in determining departure.” Minn. Sent. Guidelines whether and how to depart, comes into jury II.D. A must determine whether clearer focus. “aggravating proved beyond factors” are words, In other even if a sentencing reasonable doubt. Minn. Sent. Guidelines jury is used and it finds aggravating cmt. Additionally, II.D.01. the pattern facts, the depart decisions to how

jury jury instructions direct the to deter- depart automatic, much to are not but mine the existence of “(an)(any) aggrava- upon call the district court to exercise factor(s).” ting 10 Minn. Dist. Judges discretion, based the court’s broader Ass’n, Minnesota Jury Instruc- Practice — experience in sentencing ability Guides, Criminal, (5th tion CRIMJIG 8.01 compare case, the facts of the current 2009). ed. Supp. jury, found with the facts of other -post-Blakely

Our course, case law shows that similar cases. Of the district we aggravating understand that factors court no depart has discretion to unless facts, judge’s finding of deliberate cruel but con- on finds ty). has discretion

versely the district precisely decide how depart, or to not to point my disagreement A second with where the finds depart, much to majority my conclusion that facts. aggravating particular cruelty factor must be submit- gratu- jury. ted to a We have held (Hanson, J., dissenting). 720 at 832 N.W.2d physical pain qualifies infliction of as itous “major economic Thompson involved Schantzen, cruelty.” v. “particular State factor, which a factor offense” (Minn.1981). 484, Upward 308 N.W.2d 487 by a minimum of two supported must be jus- sentencing departures have also been factors. Minn. qualified aggravating other by infliction of emotional gratuitous tified II.D.2.b(4). After the de- Guidelines Sent. Norton, threats, v. pain by such as State sentencing jury, the dis- fendant waived (Minn.1982), or 328 N.W.2d found that the defendant had trict court Cox, victim, degradation of the 343 major committed a economic offense. Jus- (Minn.1984). have N.W.2d 645 finding that “the of a tice Hanson clarified upward departure, said that if there is an offense, by whether made major economic signifi- must be the defendant’s conduct jury, or a does not end the the court cantly typically more serious “‘than that matter, then and the district must in crime in involved the commission of the ” to decide whether to exercise discretion question.’ Leja, v. N.W.2d and, so, by Thomp- if how depart (Minn.2004) much.” (plurality opinion) (quot- son, (Hanson, J., at dis- 720 N.W.2d Cox, 643). Further, ing at senting). by already facts taken into account legislature determining degree in or Fundamentally, aggravating factors are question seriousness the crime Supreme facts. The United States Court upward depar- an inappropriate bases for than fact of a has said that “[o]ther State, E.g., Taylor ture. v. conviction, prior any fact that increases (Minn.2003). 584, 589 beyond pre a crime penalty summary, by In law we our case have statutory maximum must be sub scribed gratuitous defined jury, proved beyond mitted to physical, psychological, infliction of Apprendi v. New reasonable doubt.” Jer pain, goes beyond emotional which what is 466, 490, 2348, 147 sey, 530 120 S.Ct. U.S. statutory inherent in the elements of the (2000). maxi statutory L.Ed.2d 435 The significantly crime at issue and is more judge mum maximum sentence a “is the typically serious than that involved in the solely may impose on the basis of the facts commission of that crime. This definition by in the verdict or admitted reflected components: gratuity consists of two basic Blakely Washington, the defendant.” typicality. Gratuity fundamentally is 124 S.Ct. U.S. jury’s a factual that is within the issue well (2004) omitted). (emphasis L.Ed.2d 403 function; fact-finding typicality but majority’s ag characterization of an appears peg more difficult to to be gravating factor as a “reason” cannot ex mixed issue of fact and law. empt upward sentencing departure an being subject Typicality from to the constitutional is the core issue in determin- protections Blakely. ing upward departure articulated See id. whether is war- (invali 304-05, Thao, 299-300, 124 S.Ct. 2531 ranted. State v. (Minn.2002) dating Blakely’s (stating that the “core is- sentence which was based upward departure sue” for an “is whether associated with the weighing the offense— the defendant’s conduct was significantly degree of seriousness of the defendant’s more ... than that typically serious in- conduct—and therefore must be made crime”). volved the commission of the (1) Typicality necessarily requires review Booker, United States v. Supreme an examination of whether the conduct (other said, Court “Any fact prior than a exceeded the elements of the offense and conviction) which is necessary to support a (2) a comparison weighing of the de- exceeding sentence the maximum author- fendant’s conduct in committing the of- ized facts established a plea of usually fense with conduct associated with guilty or a verdict must be admitted the commission of that offense. E.g., by the proved defendant or to be- State, 58, Holmes v. 437 N.W.2d yond a 220, reasonable doubt.” 543 U.S. (Minn.1989) (holding that upward depar- 244, (2005) 125 S.Ct. 160 L.Ed.2d 621 unjustified ture was where defendant’s added). (emphasis It does not matter how in committing conduct intentional murder required finding is characterized. significantly “was not different from that inquiry form, “[T]he relevant is one not of

typically involved the commission of that but of effect—does the required finding crime”). expose the defendant greater to a punish- We addressed an analogous situation in ment than that authorized jury’s Henderson, a case involving the guilty Apprendi, verdict?” 530 U.S. factor, career-offender a crime which re- 494, 120 S.Ct. 2348. finding Because a quires a determination of whether the of- particular cruelty could increase a sen- fender committed the current felony “as beyond tence the maximum allowed based ” part of a ‘pattern of criminal conduct.’ plea facts in a or authorized by jury (Minn.2005) (quoting verdict, I conclude that cruelty (2004)). 609.1095, § Minn.Stat. subd. proved jury. must be to a See Cunning- specific The issue in Henderson was ham v. California, 549 U.S. pattern whether a of criminal pre- conduct (2007) (discuss- 166 L.Ed.2d 856 question sented a of law or required a ing Blakely, the Court stated that “[t]he finding by jury. Prior case law had judge could not Blakely have sentenced defined the standard to require that the above the range standard without finding current prior and crimes be similar the additional fact of cruelty. deliberate “motive, results, purpose, participants, vic- Consequently, subject that fact was tims or other shared characteristics.” Id. Sixth jury-trial guarantee.”). Amendment (citation omitted) (internal at 761 quotation An jurors obvious concern omitted). is that lack marks We concluded that such a experience judge, of a who can use finding comparison “involves a of different similar comparison, cases for acts, criminal and that this weighing degree lack of expertise by which those acts will under- sufficiently similar.” (citation omitted) (internal sentencing guidelines Id. at 762 mine the goal of uni- quo- omitted). formity tation proportionality. “juror marks Based on But this con- clusion, performance in sentencing we held that findings fact-finding additional might made the sentencing judge improved by ju- well be providing violated Blakely. Id. Similar to rors a sample the career-offend- set of circumstances to factor, er I that a finding they conclude of which can compare given case.” comparison Starr, involves a Sonja Improving J.J. Prescott & defendant’s conduct usually with conduct Jury Criminal Making Decision After (2007) J„ (Scalia, 1586, 167 L.Ed.2d 532 Revolution, Ill. L.Rev. 2006 U. joined by and Gins- dissenting, Stevens suggest the Prescott and Starr 328. JJ.) sentencing en- (concluding that burg, loosely based on examples, fictional

use of Crimi- factor in Armed Career hancement cases, offense committed of the same real vague). unconstitutionally nal Act was at 329 nn. & ways. different examples that the suggest also They majority’s reliance on State Giv sentencing commission be chosen ens, (1983), to preclude N.W.2d 187 alleviate concern over and standardized sen vagueness challenges Id. at that could bias manipulation by a that must be found tencing factors however, might approach, n. 145. This Givens, misplaced. defendant’s jury is respects daunting or even in some prove raising 122-page brief counsel submitted conviction- Minnesota’s inconsistent with trial, pretrial, numerous criteria. system departure offense issues, including whether “the standards Frase, Blakely in Minneso- Richard S. See are so from the departure ta, Years Out: Guidelines Two unconstitu overbroad as to be vague and Well, 4 L. Ohio St. J.Crim. Is Alive applied.” their face and as tional both on (2006) design (explaining of those at 189. In I would com- guidelines). Consequently, claims, on defendant’s counsel relied God appropriate of de- development mend the 420, 446 100 S.Ct. frey Georgia, v. U.S. cruelty to particular criteria for parture (1980), 1759, Gregg v. 64 L.Ed.2d 398 commission. guidelines 2909, 153, 96 49 Georgia, 428 U.S. S.Ct. (1976). Godfrey and majority’s L.Ed.2d 859 Both I with the Finally, disagree pen death Eighth Amendment Gregg doctrine has vagueness that the conclusion briefs alty cases. A review of Givens sentencing factors that no application or party raised “A can indicates that neither by jury. statute must be found doctrine vagueness ... if it authorizes briefed whether vague impermissibly be sentencing factors in the first applied to arbitrary and discrimi- encourages or even Colorado, held that v. instance. We natory enforcement.” Hill unconstitutionally 2480, not 703, 732, 147 were 120 S.Ct. 530 U.S. (2000). that explaining “application vague vague, Impermissibly L.Ed.2d 597 more routine sen- vagueness argument Process Clause of laws violate the Due including not tencing decisions—those federal law or Fifth Amendment for contemplated by Amendment sentence —is not for state law.1 death Fourteenth Defen- Gregg Godfrey decisions. is not limited to the vagueness doctrine guidelines, vagueness claim of defining of substantive dant’s statutes elements applied, is mis- too, either on their face or as vague sentencing provi- crimes. “So Givens, 332 placed if in this context.” questions constitutional pose sions Givens, applica- As I read clarity the at 190. they not state with sufficient do vagueness doctrine due-process criminal tion of the consequences violating given Batchelder, sentencing deci- “more routine” v. 442 to either States statute.” United 2198, judicial sentenc- 114, 123, pre-Blakely-eva sions or 60 L.Ed.2d 99 S.Ct. U.S. questions of (1979); open are both ing v. United decisions see also James States, 192, 230-31, 127 law in Minnesota. S.Ct. U.S. 352, 353-54, Powell, S.Ct. 75 L.Ed.2d 903 U.S. 89- United States v. See (1975) (Fifth Amendment). (1983) (Fourteenth 46 L.Ed.2d 228 96 S.Ct Lawson, Amendment); v. 461 U.S. Kolender Comm, crime.”]); any dispute

I doubt that there can be Alaska Sup.Ct. Jury on cruelty particular vague. factor is Instructions, that Jury Alaska Pattern Instruc- jury enough “It is not to instruct tions, (“‘Deliberate Crim. 1.56E cruelty’ aggravating terras of an circumstance bare means conduct that gratuitously involves unconstitutionally vague is on its inflicted torture or violence. Deliberate Arizona, face.” Walton U.S. cruelty does not conduct include is 3047, 111 110 S.Ct. L.Ed.2d 511 merely a direct to accomplish means (1990), grounds by overruled on other cruelty crime. Deliberate occurs when Arizona, 584, 609, Ring v. 536 U.S. pain physical, psychological, or —whether (2002). 153 L.Ed.2d Nev ‘gratuitously’ emotional—is inflicted or as ertheless, an factor that itself.”). an end prior Given our vague may applied be if state courts have case law has particular cruelty, defined I adopted limiting an acceptable definition. would remand this matter to the district 654-55, 110 S.Ct. 3047. with the directive that cru- In the Blakely, wake of other states with elty be jury defined for the jury cruelty sentencing factors have drafted instruction and then submitted to jury ju- pattern instructions derived from Rourke, record, unless on the waives sub- E.g., Sup.Ct. dicial definitions. 11A Wash. mission to stipulates or to some Comm, Instructions, Jury Wash. Prac- process.2 other tice, Instructions, Pattern Jury Crim. (3d 2008) (‘“Deliberate 300.10 WPIC ed.

cruelty’ gratuitous means violence or other physical, psychologi-

conduct which inflicts

cal, itself, pain emotional end in goes beyond

and which is inherent in what normally

the elements of the crime [or

associated with the commission 26.01, l(2)(b), 2. Minnesota Rules of Criminal Procedure facts. Minn. R.Crim. P. subds. provide options waiver enhancement

Case Details

Case Name: State v. Rourke

Court Name: Supreme Court of Minnesota

Date Published: Oct 22, 2009

Citation: 773 N.W.2d 913

Docket Number: A07-937

Court Abbreviation: Minn.