State v. Shattuck

Minnesota, Respondent, STATE SHATTUCK, Appellant. Allen

Robert

No. C6-03-362.

Supreme Court of Minnesota.

Aug. 2005. Oct.

Rehearing granted Defender, Stuart,

John M. Public State Roy Spurbeck, G. Assistant State Public Defender, Office of the State Public De- fender, MN, Minneapolis, Appellant. Hatch, General, Paul, Attorney Mike St. MN, Klobuchar, Amy Hennepin County Richardson, Attorney, Michael Assistant MN, County Attorney, Minneapolis, Respondent.

OPINION PAGE, Justice. December,

In an order issued last Blakely v. determined that under Wash ington, 542 U.S. S.Ct. (2004), im the district court’s L.Ed.2d 403 departure position of an durational prescribed Sentencing Guidelines by the Minnesota Robert Sixth appellant violated Shattuck’s by jury. right to trial Amendment (Minn. Shattuck, 2004). opinion indicated a full We follow, parties to file and we directed on the issue reme supplemental briefs dy- appeal had presented by jury, this er statute to be decided

The issues 17-year- assault arise out of the sexual not the district court. The denied January p.m. At 10:30 old R.E. about request jury. Shattuck’s to so instruct the after walking R.E. was home guilty found Shattuck of two Minneapolis bus in south getting off a counts of kidnapping, counts two first- bicycle approached pushing when a man conduct, criminal degree sexual and one her and asked the time. As from behind first-degree robbery. count of aggravated watch, for her man R.E. dis- reached offense, At the time of knife, her, threatened and forced played a criminal sexual and kidnapping conduct alley. they down an her to walk When bodily with harm great severity were both man stopped, the took from R.E.’s $25 eight level offenses under Minnesota pocket pull pants. told her to down her and Guidelines. Sent. behind, penetrated vaginally From he her (2000). IV, V Shattuck’s crimi- causing fingers penis, with his and her nine, history nal score was which included R.E. pain. stop, asked him to When custody point, making pre- status his again. man her After the man threatened (156-166) sumptive sentence 161 months finished, he cleaned his hands in the snow for these offenses.1 Minn. Sent. Guide- face, R.E. in punched then break- II.B.2, repeat lines IV The sex jaw. her The man told R.E. if that she provides offender statute that for certain anyone told the assault would kill about he second-degree forms of first- and criminal her, away bicycle. on and rode his conduct, sexual the district court “shall investigation police quickly The focused commit” the not defendant for less than 30 Shattuck, nearby worked who at a res- (1) years if it finds an aggravating that gotten shortly taurant and had off work grounds factor which provides exists for an pic- before the assault. After Shattuck’s upward departure the Sentencing under on a report ture was shown televised about Guidelines, (2) the defendant has a assault, Georgia, he went to where he previous conviction for criminal sexual con- charge. was on an arrested unrelated At first, duct in the degrees. second or third trial, the state introduced substantial cir- 4(a) (2004).2 § 609.109, Minn.Stat. subd. cumstantial evidence as well as DNA evi- The district court sentenced Shattuck to linking dence Shattuck to At the assault. prison 161-month jury conference, term instruction Shattuck kidnapping, argued Apprendi and to an enhanced 360- that under v. New Jer- sey, (30-year) month U.S. S.Ct. term for (2000), any L.Ed.2d aggravating factor criminal sexual conduct pursuant to section that him expose could to an enhanced sen- subdivision and ordered the tence repeat under Minnesota’s offend- concurrently. sex sentences to be served force, (i) 1. currently Under aggravating the crime involved an fac- severity pre- offenses are level nine and provide grounds up- tor that for an sumptive is the same. departure ward aggravating Guidelines other than the fac- provides, part: The statute in relevant applicable repeat tor criminal sexual person The court shall commit a to the convictions; conduct commissioner of corrections not less (ii) person previous has a sex offense * * * n years than 30 609.342, 609.343, conviction under sections or 609.344. (2) the court determines on the record at 4(a) (2004). the time of that: interpre Issues of constitutional factors aggravating four court found (1) of law that we review de tation are issues vic- enhanced sentence: justify the novo. Star Tribune Co. v. Univ. Minn. (2) vulnerable; particularly tim was Regents, Bd. cruelty; particular with was treated victim (Minn.2004). Minnesota pre statutes are (3) great emotional victim suffered -the constitutional, party sumed and the chal harm; planned. the assault lenging grounds statute on constitutional appeals affirmed Shattuck’s The court of demonstrate, beyond a must reasonable v. Shat conviction and sentence. State doubt, that the statute violates a C6-03-362, tuck, 2004 WL 772220 No. Grossman, of the constitution. State v. 2004). court held Apr.13, (Minn.App. its court “acted within the district begin analysis in We this case fac finding aggravating discretion by noting that the rule that has evolved for sentenc provided a sufficient basis tors Apprend/i line of cases is based on the mandatory-mini under the ing Shattuck right constitutional trial and the statute, mum-sentencing decision beyond requirement proof a reasonable holding Apprendi.” did not violate Jersey, v. 530 Apprendi doubt. New U.S. petition for Id. at *6. While Shattuck’s 2348; Blakely at 120 S.Ct. v. Wash court, in pending this Unit review 2536; ington, S.Ct. at United States v. deci issued its Supreme ed States Court Booker, U.S.-, 125 S.Ct. In accordance with the Blakely. sion Supreme 160 L.Ed.2d 621 case, we reverse in that rule announced explained in Booker that as sentenc Court appeals of and remand to the court ing enhancements have increased recent district court. jury’s underly years findings as to the significant. ing crime become less I. sentencing practice Id. at 751. “The new whether the The first issue before us is question forced the Court to address the under of an enhanced sentence imposition jury pre of trial could be right how the served, man- meaningful way guaranteeing subd. which in a jury when that the would still stand between 30-year a minimum sentence dates power govern and the individual court determines at the district sentencing regime. new ment under the aggravating “the crime involved an * * * by not motivated [is] answer [The] an provide grounds factor that formalism, by the but Sixth Amendment upward departure under Amendment sub preserve need to Sixth Guidelines,” Sixth violated Shattuck’s at 752. The constitutional stance.” Id. jury. In our right by to trial Amendment is: rule that has evolved case, in this we answered this earlier order conviction) (other prior than a Any fact affirmative, and stated that question necessary support to a sentence which is presumptive imposition “because by maximum authorized exceeding the judicial find- mandatory is absent by plea guilty a the facts established legislatively-created Guide- ings under by jury a verdict must be admitted regime, sentence is lines proved to a be- the defendant or solely by penalty the maximum authorized yond a reasonable doubt. jury’s purposes Apprendi verdict for Id. at 756. 466, 120 Jersey, New 530 U.S. S.Ct. v. (2000).” pleaded State v. In the defendant Apprendi, 147 L.Ed.2d 435 a firearm for an

Shattuck, possession to guilty at 786. stemming Apprendi from his fir- purpose, Following applied unlawful this court its into the home of an rule a number of cases. Gross- gunshots several man, we held that the family patterned that had sex of- recently African-American statute, fender which judge allowed the neighborhood. an all-white moved into years prison increase the maximum 469, 120 S.Ct. 2348. Under 530 U.S. at prescribed by law, Jersey New the offense earned a statute, criminal sexual conduct based on years. of 5 to 10 Id. at penalty range judge’s using factual findings pre- A separate hate-crime S.Ct. 2348. standard, ponderanee-of-evidenee violated for an enhanced provided statute sentenc- process. due at 551. See years 10 to 20 if the ing range of trial State, also O’Meara found, by preponderance judge (Minn.2004) (holding 340-41 sentences im- evidence, defendant committed posed pursuant patterned sex offender purpose the crime with intimidate an years statute that enhanced maxi- group of individual or individuals because prescribed by mum sentence second-de- of, alia, 468-69,120 race. inter Id. S.Ct. gree criminal sexual conduct statute to be Following an evidentiary hearing, unconstitutional). We have also held that judge Apprendi’s found that trial ac- imposition a mandatory conditional re- with purpose tions were made to intimi- permissible lease term for sex offenders date, imposed 12-year an enhanced an Apprendi, but enhanced 471,120 term. Id. at S.Ct. 2348. conditional release pat- term under the reversed, Court Supreme holding statute, terned sex offender on top of an Jersey statutory that the New scheme al already-enhanced prison sentence under lowing judge impose to an enhanced statute, process same violated due be- sentence, judicial aon finding using based cause it exceeded the maximum sentence standard, a preponderance violated consti prescribed for the of offense conviction jury-trial tutional process guaran due judicial imposed based on find- 476-77, 491-92, tees. Id. at 120 S.Ct. ings a using preponderance standard. 2348; Grossman, see 636 N.W.2d Jones, State v. 752-53 at 548. The Court announced the follow Smith, In State v. 669 than fact prior rule: “Other of a (Minn.2003), we addressed conviction, any fact that pen increases the the constitutionality enhancing of the min- alty beyond for a crime statutory maxi imum term prison mur- mum must a jury, be submitted to der, in prison from life the possibility with proved beyond a reasonable doubt.” Ap years release after 30 life imprison- to 490,120 prendi 530 at U.S. S.Ct. 2348. In possibility ment without of release conclusion, reaching this the Court de when the defendant has a prior conviction scribed the distinction between elements of for a “heinous” crime. We concluded that crime and factors as “con Apprendi principles not implicated were elusive,” stitutionally novel and and made because impris- minimum term of clear inquiry that “the relevant is not one by finding onment is affected a hei- of form but the required effect—does crime, nous and therefore the determina- finding expose greater defendant to a tion prior of a heinous crime conviction punishment by than that authorized the may found be the district court. Id. jury’s verdict?” Id. at States, S.Ct. 2348 (relying on Harris v. United (footnote omitted); Grossman, U.S. S.Ct. 153 L.Ed.2d (footnote omitted). at 550-51 (holding that Apprendi did not findings sentencing, by at a made factual factual deter- making from judge preclude sentence)).3 evidence, that minimum sub- affecting preponderance mination many jected the defendant to a sentence ex- subsequently Supreme Court au- years beyond guidelines sentencing guidelines to Apprendi tended at jury verdict alone. Id. thorized plead- Blakely, the defendant regimes. Supreme Court concluded 746-47. wife, estranged his kidnapping guilty ed is no distinction of constitution- that “there which, applicable offense an Federal Sen- significance” al between the statutes, pen- a maximum carried criminal tencing Washington 124 S.Ct. and the imprisonment. years’ of 10 alty sentencing guide- Washington’s Blakely issue because procedures at 2535. range” sen- for a “standard called systems, lines the relevant sentenc- under both for the offense. of 49 to 53 months tence mandatory impose bind- ing rules are judge guidelines permitted also Id. The sentencing judges. on all ing requirements above “exceptional an sentence” impose if at 749-50. The Court added that Id. found range judge if the standard merely advisory, were “their to do reasons compelling” “substantial implicate not Amend- use would Sixth hearing, judge Following a so. Id. the authori- ment. We never doubted sentence, exceptional a 90-month imposed discretion ty judge of a exercise broad acted “delib- Blakely had with finding within a imposing reversed, Id. The Court cruelty.” erate omitted). (citations range.” Id. at 750 See holding: (stating at 2540 Blakely, also S.Ct. Appren- “statutory maximum” [T]he sentencing does not in- that indeterminate the maximum sentence purposes di jury). By a different fringe province solely on the basis judge may impose on to excise man- majority, the Court went in the verdict the facts reflected of the federal datory provisions n * * In by the admitted defendant. Act and make the federal advi- words, “statutory the relevant other sory. Id. at 764-65. not the maximum sentence maximum” is finding after addi judge may impose constitutionality of now turn to the We may facts, maximum he but the tional imposed enhancement Shattuck’s sentence findings. any additional impose loithout offender stat- repeat to the sex pursuant earlier, statute man- As this Thus, ute. stated sentence at 2537. the enhanced Id. impose court 30- dates that the district Blakely in unconstitutional imposed repeat minimum sentence for certain 10-year year not exceed the though even it did finds, the time of by the criminal stat- if it at prescribed maximum sex offenders factor ex- sentencing, aggravating utes. that an grounds upward for an provides which ists Booker, held that Supreme Court Sentencing Guide- departure as construed Amendment Sixth 4(a). 609.109, § subd. lines. Minn.Stat. Sentencing Federal Blakely applies to the 30-year at the outset that We note at 746. In both of 125 S.Ct. Guidelines. by this stat- prescribed Court, minimum cases before the the consolidated for the maximum sentence ute is also the guilty drug of a jury found the defendant eon- criminal sexual offense, of offense and the district distribution light recently overruled Smith in 3. We 312, Leake, Blakely. State

duct, crime of conviction for which district court in exercising sentencing dis- they Shattuck’s enhancement was would suffer from no consti- cretion — 2(a) 609.342, Booker, § imposed. infirmity. subd. tutional 125 S.Ct. at case, that also note because section this the the relevant We Were stat- 609.109, 4, expressly incorpo- utory Blakely purposes subdivision maximum for Sentencing procedures rates the this case would be the maximum sentence upward depar- durational set out in the criminal Guidelines sexual conduct stat- tures, validity ute, the constitutional not the presumptive pre- This, necessarily implicates by guidelines. however, statute the constitu- scribed validity depar- tional durational is not the case before us. Sentencing

tures under the Guidelines.4 Sentencing The Minnesota Guidelines Sentencing that argues promulgated by The state were advisory (“Commission”), Guidelines as written to the Guidelines Commission impli- district court and therefore do not which was legislature created In sup- April I, cate Sixth Amendment concerns. 1978. Act of ch. art. port, points § the state language subd. 1978 Minn. Laws (codified specifies guidelines 244.09, which that the § are ad- as Minn.Stat. subd. 5 (2004)). visory sentencing pursuant and that legislature provided that the guidelines right is not a that accrues to the advisory “shall be to the district (1) § defendant. See Minn.Stat. subd. court and shall establish” both cir- (2004). Citing remarks made cumstances imprisonment under which first director of the an proper, Guidelines offender is pre- “[a] Commission the state sumptive, contends fixed sentence for offenders for advisory have been imprisonment whom is proper, based on since their inception. See Remarks of each appropriate combination of reason- prepared Dale G. delivery Parent able offense and offender characteristics.” National Legislators, Conference required Id. The act the Sentencing Guide- Development Statewide lines to be submitted to the (Minn. Guidelines in Minnesota provided Sent. they “shall be May effective 1979). July 1,1980, Guidelines Comm’n The state the legislature provides unless oth- argues Id., further the Minnesota Sen- erwise.” subd. 1978 Minn. (codified tencing Guidelines are mandatory less Laws at 767 as Minn.Stat. (2004)). than the “reformed” Federal Sentencing following decision, the Booker pro- also set out certain and that boundaries on the sentencing dis- cedures to be followed for deviations from cretion of judges practically Minnesota are Id., Sentencing 10, § Guidelines. disagree nonexistent. We with the state’s (codified Minn. Laws at 767-68 as Minn. position. (2004)). § Stat. 244.10 It specifically pro- If the Sentencing Minnesota Guidelines vided that when imposes the district court merely advisory were they stays constituted or a sentence that deviates from the —if no more than a rough map to steer guidelines, the court “shall make written 4. second-degree The forms of first- and § crimi- sentences. See Minn.Stat. subd. IV, 4(a)(1); Thus, nal repeat sexual conduct to which the sex Minn. Sent. Guidelines V. applies severity offender statute constitutionality are all upward dispositional level eight Sentencing and nine offenses departures under the under the Guidelines carry presumptively Guidelines and executed is not at issue this case. severity depar- grid represents axis of the to the reasons for findings of fact as * * Id., 10, 2,1978 arrayed severity into 11 § subd. Minn. the offense and is ture added). II.A, legis- The Minn. Guidelines (emphasis levels. Sent. IV. Laws at 768 appellate represents for broad horizontal axis the defen- provided further The lature score, whether history comprised of sentences “to determine criminal review dant’s convictions, juvenile is inconsistent with prior applicable the sentence rec- excessive, unreasonable, un- ord, requirements, custody and status at the time of the by or not warranted justifiably disparate, current offense. Minn. Sent. Guidelines by (Offense the district findings of fact issued II.B, IV, Severity Reference V Id., § Minn. Laws at 768 Table). court.” A grid bold line on the demar- (2004)). (codified § 244.11 as cates those offenses which pre- sumptive sentence is executed from those amended Minn. presumptive for which the sentence is by adding language Stat. II.C, stayed. Minn. Sent. Guidelines IV. that, “[ajlthough grid provides presumptive The for a fixed court, the court advisory to the district are and, sentence for those sentences which guide- procedures follow the shall * * executed, presumptively presumptive a pronounces when it sentence lines sentencing range.6 Minn. Sent. Guidelines 96, 1, May ch. 1997 Minn. Act of II.C, Any prison IV. sentence outside the added). (emphasis Laws presumptive range departure constitutes provided also sen- 1997 amendment requires judge provide written “is to the not tencing pursuant reasons. Minn. Sent. Guidelines II.C. convicted of right person accrues to a based on state felony; procedure it is a II.D Minnesota Guidelines uniformity, pro- maintain public policy to sentencing judge states that the “shall uti- rationality, predictability portionality, presumptive lize sentence” unless the sentencing.” Id.5 individual case involves “substantial and compelling (emphasis circumstances” add- promulgated Guidelines ed). pres- such circumstances are When grid to deter- employ the Commission ent, “may depart pre- judge for felo- presumptive mine the II.C., stay impose any sumptive sentence IV nies. Sent. Grid). authorized law.” Id. When The vertical (Sentencing Guidelines Purpose Principles” following our lines’ "Statement 5. This was enacted Givens, State, holding, inception. in State v. 544 N.W.2d Hutchinson v. since their 1996), (Minn. may (Minn.2004) that “defendants relin- (citing quish right under the to be sentenced I). their We have further Minn. Sent. Guidelines long guidelines,” as the waiver was know- so emphasized overriding principles that these voluntary. ing, intelligent, We subse- sentencing.” (emphasis apply Id. in "all reading that the fairest quently concluded Misquadace, original) (quoting is that provision of the 1997 amendment this 71). "right” a whatever removed might have to under the defendant statute, range may By con- Misquadace, guidelines. State v. upof of an increase or decrease 15% sist (Minn.2002). We also noted 70-71 presumptive, fixed sentence. the although legislature in the 1997 the 2005, the subd. 5. for the first time that the amendment stated provide for an in- provision to amended this public policy guidelines are based on state to the fixed sentence and crease of from 20% sentencing uniformity, proportional- maintain 2, 2005, ch. of June decrease of Act 15%. rationality predictability, princi- ity, these Laws-,-. 136, 16, 1,§ 2005 Minn. art. part Sentencing ples Guide- have been 140 Geller, 514, “pronounce should allowed.

departing, judge State v. 665 N.W.2d (Minn.2003). 517 proportional is to the se- sentence which conviction verity of the offense of and the Additionally, we limi placed have prior criminal extent of the offender’s his- length tations on the of durational sentenc tory, into substantial and should take con- rule, ing departures. general As a of purpose the statement sideration maximum durational departure guidelines. judge Id. A principles” justified by that can be cir aggravating departs presumptive from the sen- who presumptive cumstances is double the sen provide written reasons which tence must Evans, 481, tence. State v. specify and compelling both the substantial (Minn.1981). Only 483 in cases of “severe nature of the circumstances and demon- aggravating may circumstances” dis why is more appropri- strate the sentence trict impose greater-than-double court ate, equitable or than pre- reasonable sentence; departure presumptive from the sumptive Id. The guidelines sentence. such cases the absolute limit then list factors that should not be used provided duration is the maximum in the departure and nonexclusive aggrava- statute defining offense. v. State ting mitigating may factors that be Mortland, (Minn. 399 94 & n. 1 N.W.2d departure. as reasons for used 1987). cases, stated, we are Such II.D.l and 2. Sent. Guidelines “extremely rare.” State v. 590 Spain, (Minn.1999). N.W.2d 89 In this court’s decision construing first Guidelines, Sentencing we stated: A tenet basic “Underlying the Guidelines is the notion Guidelines jurisprudence is that dis purposes that the law will not be trict may not base an upward dura- if judges served fail to follow the Guide- departure tional on factors that legisla ‘general’ lines case.” State v. Gar- ture already has taken into account cia, (Minn.1981). 647 N.W.2d determining degree seriousness year That same we indicated it would See, State, e.g., Taylor offense. v. abe “rare case” that would warrant rever- (Minn.2003); N.W.2d v. State depart sal the refusal pre- from a McIntosh, (Minn.2002). sumptive Kindem, v. sentence. State Additionally, it is generally proper while N.W.2d 7 for the court to consider the un conduct derlying the offense of which the defen We review the district court’s de convicted, dant reliance on other of depart guidelines’ cision to pre part fenses that are not of that offense and sumptive an sentence for abuse of discre of which the defendant was not convicted Garcia, tion. at 647. N.W.2d But we is not a permissible basis for a durational have emphasized that the district court has departure. Taylor, 670 N.W.2d at 588. depart “only discretion to aggravating if or mitigating circumstances present;” survey This of pertinent law if such present, circumstances are not “the makes clear that the district court has trial court has no discretion depart.” limited discretion Best, (Minn. 449 Minnesota par Guidelines. In 1989). ticular, We also require district court that in imposing conclude sen to include a statement the reasons for tence for felony, the district court is departure on the record at required the time of impose sen sentencing in departure order for a to be tence set out Sentencing imposition ta Guidelines of the findings. Section additional Grid absent mandatory presumptive sentence absent expressly provides II.D of the findings.8 additional presump- “shall utilize the that the court and com- substantial sentence” unless tive holding It follows from this present. are While circumstances pelling purposes for of the constitutional rule that of the authorizing promulgation the statute cases, Apprendi has evolved in the line of they Sentencing Guidelines states for other than murd felonies court, expressly it advisory to the district presumptive prescribed er9 the sentence fol- that the district court “shall provides by the Minnesota Guidelines is guidelines” of the procedures low the judge may maximum im “the sentence MinmStat. sentence. pronouncing pose solely on the basis of facts reflected 244.09, canons of § 5. Under the subd. by verdict or admitted construction, “shall” is mandato- Blakely Washington, defendant.” v. (2004); subd. 16 ry. Minn.Stat. omitted). up An (emphasis S.Ct. at 2537 Humes, 317, 319 v. departure pre ward durational from the presump- of the Utilization sentence, sumptive findings based on made under Minn. Sent. Guidelines tive sentence court, violates the district the Sixth “procedures II.D is one by jury. right Ap to trial Amendment requires statute the district guidelines” the prendi Jersey, v. New 530 U.S. at jurispru- Similarly, our court to follow. 2348; Blakely Washington, v. S.Ct. quarter century the Sen- during

dence It S.Ct. at 2537. is irrelevant whether effect, been in tencing have Guidelines judicially require determined facts sen guidelines’ sought to effectuate the tencing departure, repeat as under the sex statute, court to by requiring merely depar the district allow a purposes offender ture, in the presumptive guidelines. Blakely, as under the utilize therefore, case, hold, like at 2538 n. 8. In either usual case.7 We S.Ct. issue, systems beyond at court finds facts the elements sentencing guidelines offense, Booker, plea guilty and the verdict or under the Minneso- Blakely (2000). 9.94A.120G), (2); sentencing §§ Writ- discretion 9.94A.310 7. The district court’s departure required, findings Guidelines is further were ten statutory requirement that guidelines provided constrained and the a nonexhaustive findings make written of fact as departure. Wash. list of factors for Rev.Code departure presump- from the Further, the reasons 120(3); (2000). §§ 9.94A.390 9.94A. instituting appel- the statute tive sentence and using Washington prohibits case law like ours late review of sentences. Minn.Stat. sentencing departure that have factors for a 2; §§ 244.11 computing already account in been taken into ("standard range”) sentence. Misquadace, v. we noted that under In State Gore, 288, 21 P.3d State v. 143 Wash.2d sys- Washington guidelines the federal Blakely (quoted and cited in Minnesota’s, tems, 'primary relevant like propo- Washington, for the 124 S.Ct. of convic- [are] criteria the offense judge imposed the en- that had the sition history.” the offender’s criminal tion and solely basis of Blake- hanced sentence on the (citations (Minn.2002) reversed). ly’s guilty plea, he would have been omitted). Washington Blakely is similar to Minne- scheme at issue in 9.First-degree murder is excluded respects. material It re- sota's in several carries a because it Guidelines impose a quired the district court to imprisonment. mandatory sentence of life sentencing grid range out in a within a set H.A.; Minn.Stat. Minn. Sent. and com- unless the court found "substantial 609.185(a) (2004). depart. pelling” reasons to Wash. Rev.Code 142 the vant to analysis. enhanced sen the constitutional not authorize We

alone does Blakely note that expressly legislature note that the created the tence. Id. We Com- to either mission stipulate to and outlined broad strokes what permits a defendant judicial to guidelines ultimately consent fact- the like. relevant facts or look 244.09, (2004). § factors. Minn.Stat. subds. finding regarding Id. 5 Further, legislature pow- at 2541. the retained the reject

er to original guidelines promul- II. gated by any reject the Commission and to Commission to modifications the makes argument The state also makes that 244.09, guidelines. § Minn.Stat. to Blakely apply sentencing un- does not conclude, subds. We there- der Guidelines because fore, argument the state’s are not statutory. Minnesota’s lacks merit. The state contends that has statutory máxi- created one set statutory presumptive mums. Unlike III. by Washington Leg- sentences enacted case, In the present Ap- issue in Blakely, islature that were at (cid:127) prendi Blakely, the maximum sen argues, state the Minnesota tence the imposed district court could have reflect simply Guidelines combined for Shattuck’s criminal sexual wisdom of the various stakeholders in the conviction, conduct jury based ver justice system criminal who serve on the alone, dict is Commission, appointed whom is none of (156-166) imprisonment. months’ legislature. 244.09, Minn.Stat. See II.B.2, Minn. Sent. Guidelines IV. When (prescribing subd. makeup of the court aggravating determined that fac- Commission). tors provide grounds existed that would argument The this state made before for an upward departure under the Sen- the Supreme decision in Court’s Booker. tencing imposed Guidelines and the man- There the Court held fact the datory 30-year minimum pursu- Federal Sentencing pro- Guidelines were ant it mulgated by the Commission violated right Shattuck’s Sixth Amendment rather by Congress than “lacks constitu- have a make that determination significance.”

tional United States v. using a reasonable-doubt standard. We Booker, 125 S.Ct. at The Court rea- therefore upward departure hold that the soned regardless of whether Congress from the presumptive sentence is unconsti- or a particu- commission determined that a tutional. Because section subdivi- lar fact proved must be order to impose sion Sent. II.D sentence, an enhanced the principles be- authorize the district to make such jury-trial hind the right equally appli- an unconstitutional durational de- cable. Id. at 752-53. parture upon finding an aggravating factor applies same rationale jury, without the aid of a we hold that the Guidelines; Minnesota Sentencing facially the fact statute is unconstitutional and sec- they were promulgated tion Commission II.D of is unconstitu- rather than by the is not rele- tional as applied.10 The statute is uncon- 10. is that a law facially applications. traditional rule in all of its See United States v. Salerno, only if unconstitutional it is unconstitutional U.S. S.Ct Revenue, 651 N.W.2d without man Comm’r entirety because in its stitutional (Minn.2002) (citing Archer Dan- it is incom- provision the unconstitutional State, Midland Co. v. in iels being executed incapable plete (Minn.1982)). at “We look first intent. See legislative with accordance legislature to fashion a reme- (2004). intent of the is so be- § This 645.20 that intent.” Id. Our dy consistent with condi- it, expressly in cause is, remedy in a goal determining primary 30-year imposition of tioned as to effectuate the intent possible, insofar Blakely does not finding that judicial on a it known that a had make: judge to permit of the law was invalid. Johnson provision aggravating factor an “the crime involved Liquor Co. v. Comm’r Bros. Wholesale upward an grounds for provide that would Revenue, 791, 793 Sentencing Guidelines under the departure * * 4(2)(i) 609.109, § subd. *.” Minn.Stat. § Minnesota Statutes 645.20 (2004). Sentencing Guidelines Minnesota law to provision that absent a states it per- insofar as II.D unconstitutional is contrary, provisions of all laws are departure upward an durational mits any provision If of a law is severable. findings.11 judicial on based unconstitutional, “the remain found to be remain val provisions of the law shall IV. court makes either of two id” unless the en- that Shattuck’s Having determined (1) provisions “are so findings: valid unconstitutional, we sentence is hanced with, connected essentially inseparably appropriate question of turn to the dependent upon, provi so the void de- question answer to this remedy. The cannot presume that the court sions” part, whether pends, least remaining provisions valid would Minn. Sent. provision of unconstitutional one; or enacted without the void been II.D can be severed standing remaining provisions, valid guidelines. remainder alone, incapable of be incomplete ing executed accordance with Severability A. emphasized that while intent. Id. We have of a provision a severable that we can strike determines When unconstitutional, “we unconstitutional, law if found to be it must invalidate a law is a statute order language add necessary to cannot the law as is only as much of constitutionally permissible.” to render it unconstitutionality. Chap- eliminate (1987) (to aggravating factor is insufficient chal- of this in facial L.Ed.2d 697 succeed lenge, challenger repeat establish that no set of- trigger sentencing "must sex Act 609.109, under which the circumstances exists § statute. Minn. Stat. fender valid”). Appellant has not demon- be would 4(a)(2)(i) Guidelines II.D is that Minn. Sent. strated applications, its be- in all of unconstitutional recently legislature has 11. We note that today, us which a section not before cause subdivision amended section depar- imposition upward provides of an Guide- adopted of Minn. Sent. has a revision conviction, prior of a on the fact ture based by the Com- lines II.D that was recommended determined to be constitutional. could be 2, 2005, 136, art. June ch. mission. Act of II.D.2.b(3) (listing See Minn. Sent. Guidelines -, -; see §§ 2005 Minn. Laws aggravating fact that defendant's factor as Comm'n, Report Sent. Guidelines felony are for past convictions current and (Jan.2005). validity of Legislature 11-12 in which sexual conduct or offense criminal here. provisions not before us presence those injured). The otherwise victim was N.W.2d at 836 tutional Chapman, (quoting allowing judge to make Restaurant, Inc., findings justify L which McGuire v. C & an (Minn.1984)). durational departure remaining provisions would not have been enacted Minnesota Statutes sub without it. Minn.Stat. 645.20. the Sentencing division states We base this conclusion on a number of procedure Guidelines are “a based on state First, considerations. the Blakely decision public policy uniformity, pro to maintain narrowly procedure focuses the rationality, portionality, predictability judge-determined upward departures from in sentencing.” Sentencing Guide sentence, the presumptive not the sub- lines that the purpose themselves state or procedural aspects stance other of det- “is to establish rational and erminate sentencing. The Court expressly sentencing consistent standards which re did not find determinate sentencing sentencing disparity duce and ensure that unconstitutional, schemes and stated that following felony sanctions conviction of a Blakely only was concerned with “how severity are proportional to of the sentencing] [determinate can be imple- offense of and the conviction extent of the mented in way respects that the Sixth history.” offender’s criminal Minn. Sent. Amendment.” 124 S.Ct. at 2540. I. have said that guide Guidelines We lines to uniformity, Second, were created assure to rule that section II.D cannot rationality, proportionality, and predict be severed from the remainder of the Sen- ability sentencing. State v. Misqua tencing Guidelines is to effectuate a return dace, (Minn.2002) 644 N.W.2d (citing to an indeterminate system, in 5(2)). § Minn.Stat. See also significantly different form than that which Zeimet, State v. 796 existed before the supplanted it (Minn.2005) (stating sentencing guide with a Sentencing determinate Guidelines lines equity were created to assure system sent in 1978.

encing).12 Until advent the Sentencing light overriding purposes Guidelines, except for certain mandatory Sentencing system, murder, Guidelines we con- sentences such for first-degree as clude that the unconstitutional portion “the length of a sentence was left almost Minn. II.D may Sent. Guidelines entirely be sev- to sentencing judge’s discre ered remaining provisions tion, within maximum terms estab guidelines. II.D Section unconstitution- lished legislature” and constitution only al insofar it as allows the district al Henry limitations. 9 W. McCarr & Jack impose upward to an Nordby, durational de- S. Minnesota Practice —Criminal parture (3d based on the findings. ed.2001). court’s own Law & 36.1 Procedure As We do not believe that the remaining long pro- as the sentence was authorized visions of law, Guidelines it subject was not to appellate review; “so essentially inseparably relief connected could had through parole be with, and dependent upon” so board. Gamelgard, unconsti- State v. 287 Minn. statute, 12. Drawing on the sentencing, provide greater section I of honesty or 'truth sources, guidelines and other have charac- sentencing,’ and coordinate terized Minnesota's Guidelines practices within correctional resources." system system as a commission-based Zeimet, (quoting Taylor 696 N.W.2d at 796 goals of "to public safety, which are assure State, 586). 670 N.W.2d at promote uniformity proportionality (1970); sentencing system propos- nate the dissent State v. 77-78, 177 Dinneen, might it be said that the es. To the extent other than For felonies legislature would not have enacted a deter- murder, judge who chose system without minate either sen could impose prison departures, durational there is term of to a maximum defendant tence the nothing suggest or to an inde by the court years selected proposed would have enacted the dissent’s deemed to be term terminate system. for the offense. statutory maximum To invalidate (3) (1976). 609.10(2), pa contrary system would also be to the ex- authority parole had broad role board sentencing policy of this state of press prison, sentenced to a defendant discharge uniformity, maintaining proportionality, length the of the sen regard to without (1976). 609.12, sentencing. § subd. in Minn. predictability tence. Minn.Stat. 244.09, major § A purpose subd. 5. Stat. framework, statutory the current Under statute was to re- guidelines’ enabling previously deter- board that parole discretion, judges’ sentencing thus duce date no inmate’s actual release mined an uniformity promoting greater of sentences. exists, and the Commissioner longer Frase, Legisla- Richard S. The Role authority applies only parole Corrections’ Commission, ture, Sentencing before Sen- to individuals sentenced in Minnesota Sen- took effect 1980. Other Under the tencing Guidelines Officials 1; 244.08, 243.05, Guidelines, §§ subd. 28 Wake Forest tencing Minn.Stat. (2004). (1993). To strike down Sen- subd. There can be no L.Rev. entirety, in its tencing regime Guidelines complete invalidation doubt judges give would proposes, as the dissent would disserve the Guidelines impose prison a fixed discretion to uniformity felony sentencing goal of any within the point at sentence more sentencing make in Minnesota would offense.13 range particular for the unpredictable. 1(2) (2004). Thus, 609.10, subd. Stat. argues that without sufficient The state remedy, the proposed under the dissent’s to main- upward departures for provision select a sentencing at would both judge sentencing, the Sen- proportionality tain range, a and effec- sentence within broad would never have be- tencing Guidelines defendant’s actual re- tively determine the is based on argument come law. The representatives date.14 The lease of determinate veto of an earlier version for the indetermi- have never voted people prison only reduction of criminal sexual 14. The the case of 13. conduct, by good time currently provided statute is example, it is conceivable for by Minn.Stat. year-and- the defendant. See impose a earned judge could minimal one 244.05, 244.04; (2004). Good- §§ subd. 1 who a-day prison sentence for an individual infant, was avail- prison time reduction of sexually penetrates an and another parole opportunity for able addition to 18-year-old to a 30- judge could sentence an were Guidelines having inter- before year prison term for sexual (re- adopted. 243.18 16-year-old See Minn.Stat. nearly non-relative with a course 1978). pealed is not clear whether It and who in who resides in the same home remedy include proposed by incapa- dissent’s law is deemed fact consented but sentences, appellate review of §§ elimination of ble of consent. See 2(a); 15(3) the discre- 1(a) significant limitation on another (g), subds. court. (2004). of the district tion presumed appropriate every then-Governor Wendell “are to be for case,” in 1976. state asserts that Anderson and that departures intended to the bill vetoed because he apply the Governor a small number of cases.15 omission of extended disagreed with II.D, cmt.; Minn. Sent. Guidelines II.D.01 offenders, serious cit- provisions term Misquadace, Project: Minnesota Sentenc- ing Research severing We conclude that the unconsti- Guidelines, 5 Hamline L.Rev. portion tutional of Minn. Sent. Guidelines not the reason for But this was II.D from the remainder of the Anderson vetoed the veto. Governor best effectuates intent. Sever- bill because its extended ance of section II.D does the least damage, dangerous in- terms for chronic offenders keeping terms of both a sentencing to define advertently failed “extended place structure in to what legisla- close Message, Journal of term.” House Veto enacted, judiciary ture refraining (69th 6640-41 Representatives taking from an in creating active role 1976). gover- One Minn.Legis. Apr. scheme for state. With the legislation, nor’s veto of different followed exception II.D, of that portion section by enactment of a commission-based Sen- therefore, system tencing leave Guide- different signed by a lines intact. gov- different ernor, determining in helpful legisla- is not

tive intent. Remedy B. The Booker Proportionality in is not de- urges The state tous follow the lead of pendent availability upon upward of Supreme in modify Court Booker and departures durational from the presump- the Minnesota Sentencing Guidelines to Sentencing tive sentence. proportionality Booker, advisory. make them In requires that severe more sanctions be Court question remedy answered imposed for more serious offenses and of- finding provision of the federal Sen- Kay Knapp, fenders. A. Impact tencing Act that made the Federal Sen- Sentencing Minnesota Guidelines on Sen- tencing mandatory Guidelines to be “in- Practices, tencing 5 Hamline L.Rev. compatible” with holding its constitutional Sentencing Guidelines subject the federal “provides Grid primary mechanism for jury-trial Sixth requirements, Amendment achieving proportionality in sentencing.” and severed that and another statutory Id. While the mechanism for departing provision relating to standards of review. from the presumptive sentence further af- 756-57, 125 S.Ct. at 764. The Court id., then proportionality, fects retaining the required federal courts to guide- consider striking Guidelines while down sentence, ranges lines in imposing id. at that unconstitutional mechanism with re- 757, 767, and spect adopted standard of departures durational unrea- bet- sentences, ter reviewing sonableness for goal proportionality serves the id. at than invalidating 765. The holding in Court based its Guidelines their entirety. regard, In this Congress we determination that note would have provided preferred sentences the grid total invalidation Sentenc- year Comm’n, 15. In last which tences. statistics Minn. Sent. Guidelines reported, aggravated been Impact Blakely Washington the number of v. on Sentenc- sentencing departures, ing Long both durational and in Minnesota: Term Recommenda- dispositional, 30, 2004). felony (Sept. constituted tions 8 7.3% sen- from jury-trial require- Guidelines suffer no constitution- engrafting Act to ing it, infirmity. It preferred would have al is not our role to choose ment onto invalidation. Id. remedy among provisions to total various of the Sentenc- Court’s ing sentencing sys- 758-59. Guidelines and select a tem for this state.16 that the Booker hold- The state asserts to Minnesota Sentenc- applicable C. Other Remedies intent. The ing Guidelines case, the earlier order this proposes provisions that two state parties ques- directed the to address the the re- Sentencing Guidelines be severed: tion whether this court has the inherent II.D that the sentenc- quirement of section authority to authorize the use of sentenc- presumptive “shall utilize the ing judge ing juries and a trial sentence,” entirety process. 1.4 in its bifurcated and section Shattuck, (“While are advi- State v. 689 N.W.2d at 786. The sentencing guidelines departures parties agree power that the court has the sory sentencing judge, to the procedures. estab- sentences to authorize both should be made lished power “The inherent of this cir- compelling when substantial right includes ‘the to enable [the exist.”). cumstances justice any to administer whether court] modify guidelines as decline to We remedy previous granted form of has been ” Booker was requests. the state Because Erickson, not.’ purely grounds, it decided on federal law (brackets (Minn.1999) original) not mandate a similar result here. does (quoting Lyon County In re Clerk of system The Federal Compensation, Court’s significantly complex is a one differs 781, (1976), 241 in turn quot N.W.2d 784 important, Minnesota’s. More from Greathouse, 51, 55, ing In re 189 Minn. 248 severability approach to in Booker Court’s (1933)). 735, authority N.W. 737 to traditional, is far different than the defer- regulate procedure matters of court arises Minnesota approach ential taken under judicial powers. from the court’s inherent (Ste- Booker, 125 at 777 law. See S.Ct. Johnson, 551, v. State N.W.2d vens, J., dissenting) (describing majority’s (Minn.1994) Willis, (citing State v. “entirely as new severability approach (Minn.1983)). 180, 184 Because N.W.2d law”). authority extends the court’s inherent functions, unique judicial “pro accept To the state’s invitation would to its authority felony sentencing cautiously exercising in ceed effectively return au respect equally unique in order to Minnesota to an indeterminate require thority to invali- of the executive system. It would also us consti government of over their provisions date two branches day following final We the revision of Minn. Sent. "is effective note that only prospective ap- legislature adopted and thus has that the enactment” Guidelines II.D 136, 10, plication. art. supra, lan- Act of June ch. see footnote includes (cid:127)— -, By applicable Minn. Laws. -. guage that a outside the contrast, affecting provisions the act range grid "is controlled other on the not rather, day sentencing departures guidelines, judi- are "effective but is an exercise of direction,” following appl[y] aggravating depar- enactment and to sen- and that final cial rehearings, tencing hearings, sentencing advisory only.” factors "are Minn. Sent. ture Comm’n, sentencing departures sought on or after that Legislature Report to the Guidelines Id., added). (Jan.2005). (emphasis §§ We that this date.” 3-6 11-12 further note tutionally authorized functions.” State v. When the district court may unilaterally (Minn.1981) C.A., 353, 358-59 find facts that increase the defendant’s (citations omitted). In the area of sentenc beyond what would otherwise be legislature judiciary- legally and the ing, permissible both based on jury ver constitutionally guilty alone, exercise dict or plea authorized func does not fix power pun tions. The to the limits of “stand between the individual and pow government.” ishment for criminal acts lies with the er United v. States — Booker, U.S.—,—, legislature, imposition but the of a sen 125 S.Ct. (2005). particular tence case within those 160 L.Ed.2d 621 But because judicial I limits is a function. v. conclude majority’s remedy State Mis for the 68; Olson, quadace, Blakely 644 N.W.2d at comply violation does not with our severability 17-18 jurisprudence, respectfully I dissent. authority While this court has the procedures apply Any establish the re remedy discussion of a Blakely-

quirements Apprendi Blakely to related problems begin must by address- Minnesota, sentencing in we leave to the severability issues. Severability is an deciding the task of analytical how the tool designed protect sep- system Guidelines powers by should be aration of preventing the court altered to with comport those cases. It is from substitution judgment of its for the that created the Sentencing judgment of the representatives elected system authority and retains people. Inc., Regan See v. Time over its development. 641, 652-53, For us to engraft U.S. 104 S.Ct. sentencing-jury or require bifurcated-trial L.Ed.2d 487 Traditional severabili- ments onto ty analysis Guidelines and begins with an unconstitutional require portion statutes would rewrit of an act may and asks if it proper- ing them, something juris our ly severance be in light severed of the intent of the prudence permit. does not Chapman See legislature as to the act as it passed. Revenue, v. Comm’r 651 N.W.2d at may 836. The court not craft its own remedy by adding to an act or excising portions of its We reverse the decision of the court of id.; choosing. See McGuire v. C & L appeals and remand this case to the dis- Restaurant, Inc., 605, 614 trict court for resentencing consistent with (Minn.1984). opinion.17 this (2004) Minnesota Statutes 645.20 lays Reversed and remanded for resentenc- out the standard for severabili- ing.

ty: ANDERSON, (concur- BARRY, G. J. provision Unless there is a in the law ring in part dissenting in part). provisions the shall not be severa- join

I opinion ble, of the its provisions of all laws shall be application Blakely of Washington v. to any provision severable. If of a law is the Minnesota Sentencing Guidelines. found void, unconstitutional and the re- 17. We legislature 136, note recently 3-6, that the has §§ ch. art. 2005 Minn. significant enacted requirements -, new ag- express Laws -. opinion We no gravated sentencing departures, including changes, about these recent and do not fore- trials, sentencing juries and bifurcated close the district considering any court from changes apply these prospectively both constitutionally applicable available and/or resentencing to hearings. Act of June laws on remand.

149 provisions passed system pre of the law shall re- maining where valid, court finds the main unless the sumptive applied sentences regardless are law so provisions valid are essen- any aggravating of Regan factors. See v. with, connected tially inseparably Inc., 3262; Time 468 U.S. at 104 S.Ct. provi- the void dependent upon, and so Sarette, 283 N.W.2d at 537. See also State presume court cannot sions that the Dilts, Or. P.3d 95 have enacted the re- legislature would (holding that the court considers “whether provisions without the void maining valid part of a statute only should be severed one; unless the court finds the re- part of when a statute is held to be uncon alone, maining provisions, standing valid stitutional and the court therefore must incomplete incapable and are of be- part determine whether that of the statute legisla- in accordance with ing executed can be remaining parts severed and the tive intent. (emphasis the statute saved” in original)). presumption severability. There is a no, If the answer provision is not Revenue, Chapman v. Commissioner of regime severable and the entire must be (Minn.2002). Analy N.W.2d declared unconstitutional. provisions sis of whether a statute’s void case, In present we should ask the intent, legislative are severable centers on severability question way: traditional this see, Sarette, e.g., City Duluth v. legislature Would the in 1978 have passed (Minn.1979) (holding that un remaining provisions that constitute exempting provision constitutional certain sentencing guidelines regime without groups obscenity from ambit of an ordi depar- the unconstitutional may properly nance be severed because tures from sentences? doing so did not alter the intended effect asking question, important this it is note ordinance, constitutionally legislature cannot intend some- portion “superfluous”). void But be thing Thus, unconstitutional. the fact that goal cause our is to effectuate the intent of legislature pass guidelines sys- did part it that a had known tem severability ques- is irrelevant unconstitutional, bill was attention tion, majority’s as is the observation that given intent is in the form of failing to sever would return the state to specific question. See Johnson Bros. indeterminate and allow broad Liquor Co. v. Comm’r Reve Wholesale judicial in sentencing.1 discretion nue, merely possible court must not ask which specific We must center on the uncon conform in- remedy seems to best to the provision, stitutional and then ask whether legislature. tent of the See Minn.Stat. passed would have the con analysis remedy § 645.20. Ad hoc of what provisions stitutional of the statute inde likely provision legislature prefer uncon would enables pendently declared here, judiciary legislative whether the to take on the stitutional — range Supreme Blakely expressly ap- possible punishment. The Court in risks a broad of sentencing proved judicial of discretion in Nothing judicial about discretion sentenc- sentencing. and indeterminate The issue is it offends the Sixth Amendment unless legal expectation. one of A defendant con- pushes penalty pre- an offender’s above the pleading guilty system victed or under a of sumptive punishment provides. the law See mandatory presumptive sentences has an ex- 2540; Blakely, v. United 124 S.Ct. at Harris pectation specific of a sentence. But under a States, 545, 565, U.S. 122 S.Ct. system sentencing, potential of indeterminate L.Ed.2d 524 are on notice that their criminals behavior Instead, easily. a upon opposed deter- the bill because mantle too he believed that would not imposing mination identical sentences on all persons guide- remainder of the convicted of the same offense passed ignore provision a for up- large without regime leading lines differences conduct the court should strike departures, ward those convictions. Id. at n. 11. Moe regime entire and return the supporters down the believed that of the bill were sentencing. indeterminate That not eliminating state to discretion in sentencing, system approval at least has the of an merely moving but it from parole body people’s representa- earlier of board judges into the hands of prose- tives, system today cutors, the court group whereas transparent less and ac- only approval has the of creates this court. public countable to the than parole board. Id. By examining legislative history sentencing guidelines original legisla- But sentencing this determinate bill nev- tion, severability ques- can answer the er became law. Governor Wendell definitively, and the tion answer is no. Anderson April vetoed the bill on The would never have become expressing along concerns Rep. lines of provision law but for for de- In particular, Moe. disagreed Governor partures. with the provision omission of a clear Senator William McCut- longer sentences for the most serious of- cheon introduced determinate fenders. Id at (citing Veto Message, imprisonment bill mandatory (1976)). that made 4 Journal of House 6640 felonies, for all “good eliminated time” majority

2. sentencing Prior to the parole reforms of the late board determined the actual release seventies, the district court sentenced felons 609.10; §§ date. See Minn.Stat. 609.12 to a years maximum term of within the statu- (1978). tory committed, range for the offense and the alone, are too we can severability ques- in sentences that answer the would then result tion in negative. con- dangerous chronic offender short for degree and second murder victed of first The text of the legislation itself lends Thus, Id. at 6641. aggravated rape.” and support proposition further to the that the determinate need not wonder whether guidelines bill would not have been enact law absent sentencing would have become ed without provisions. the unconstitutional procedure upward departures; for a clear purpose legislation The explicitly is proposal express- that a was we know such detailed in promulgating the statutes propor- on concern for ly rejected based guidelines regime. Section subdi tionality public safety. vision although guidelines added to the in guidelines statute states that the history not legislative But the does end procedure are “a public based on state with the Governor’s veto. The bill was policy uniformity, to maintain proportional drastically in and was reintroduced ity, rationality, and in predictability sen concept in to include altered the House tencing.” May 1,§ Act of ch. sentencing guidelines. Id. at guidelines 1997 Minn. Laws 695. The bodies, passed legislative The bill both purpose themselves state to “establish committee, in conference the debate cen- rational and sentencing consistent stan in scope tered on the of discretion sentenc- dards which sentencing disparity reduce ing as well as the location of that discre- * * * proportionality.” and ensure Negotiators agreed tion. Id. at 805-06. Sent. Guidelines I. This court has stated upon compromise incorporated that det- belief that in “overriding principle its sentencing with erminate rationality, predictability, all is judicial guidelines. Id. at 306. sen- While * * consistency *.” Misqua State v. ranges tence were narrow and sentences dace, (Minn.2002); N.W.2d see determinate, judges were were allowed (“[T]he sentencing guidelines also id. at 68 presumptive depart from the sentence. uniformity, were propor created assure Rudy Perpich signed the bill into Governor tionality, rationality, in predictability 5,1978. April law State, sentencing”); Hutchinson v. Thus, after determinate was Further, rejected by specifically Governor Anderson public safety paramount concern of is disproportionate because it would lead to establishing Guidelines Commission when offenders, sentencing for the worst modifying sentencing guidelines. arid very compro- reached a delicate subd. 5 creating guidelines mise determinate majority goal uniformity, focuses on the allowing judges but to increase sentences and, citing Misqua- our decision State v. findings. on factual final based de- dace, themselves, that imposed to be significant sentences when What is is the fact that no different compelling sentencing system circumstances can pro- substantial be rational and treatment.” Id. at 69 portional different depar- warrant without mechanism for added). Thus, majori while the (emphasis Misquadace, tures. See 69. guidelines that the ty is correct themselves Upward departures sen- proportionate lead to tencing inextricably together are so bound cases, equally it is true that the majority of pursuit proportional of uniform and every possible cannot embrace that, severability ju- under our case, proportionality and rational and thus risprudence, the one cannot separated be the worst ity demand offenders be Today’s from the other. guts decision ra- guidelines. Today’s dealt with outside tional, proportionate sentencing and con- decision, stripping the Minnesota sentenc flicts with the command to con- ing system upward depar durational public safety sider first. See Minn.Stat. tures, requires imposition (2004) on remand of (stating subd. 5 that the presumptive guidelines sentences for the “primary [sentencing consideration of the offenders, very imposing worst an irration guidelines] public commission shall be sentencing system al on the state.3 safety”). majority attempts play The down the It is also worth mentioning that creates,

irrationality system it argu- legislature has taken action to address the ing upward departures, that the number of Blakely 2, 2005, problem. See Act of June felony 7.3% of sentences is mod- 3-6, §§ ch. art. 2005 Minn. Laws Comm’n, est. Minn. Sent. Guidelines The —, —. The legislature continues to be Impact Blakely v. Washington on Sen- committed to proportionality and tough tencing Long in Minnesota: Term Recom- offenders, penalties for the worst and to 2004). 8 (Sept. major- mendations this end has ceiling increased the on pre- ity suggests by implication taking sumptive sentencing ranges from 15% to upward departures wheels off of is of little 20% presumptive above the fixed sentence. practical significance. true; The reverse is Id., Further, § 1. remains upward the modest number of departures upward committed to depar- durational first, a well-designed system reflects sentence, tures from presumptive opt- presumptive sentences addressing goal jury determination of facts which of uniformity, preserving while upward de- Id., support departures. such 4. These partures for the worst offenders. Upward provisions fix, are a temporary sunsetting departures in large number of cases on February 2007. legisla- Id. But the make sentences mean- preserve ture’s decision to upward depar- ingless. tures underscores the conflict between our But the actual number of depar- today action and the will of people’s constitutionally tures is not significant. representatives.4 is, course, 3. It lurking true that an Blakely: indeterminate beneath the surface of dissent, sentencing regime, urged by as Supreme United States Court has flirted with may adversely complicate holding goal outright that all facts that increase uniformity. ceiling development possible punishment beyond But while that speculative, proportionality guaranteed what is a is allowed verdict or defen- casualty majority dant's decision. admissions alone must be treated as See, e.g., Apprendi, elements of the offense. majority’s remedy legis- Neither the nor the 530 U.S. 120 S.Ct. potential lature’s problem reforms resolve one (majority opinion) (“Any L.Ed.2d 435

153 foregoing, light of the we should committed.5 This would allow district impose courts to exercise discretion to answering severability the sen- problem little to up statutory tences the maximum and question negative legislature in the —the provide legislature the a clean slate from the bill passed would never have begin which to reform sentencing anew.6 for upward departures. without reasons, For these I respectfully dissent. non-severable, Having found the analy- us to precedents our direct end our

sis of intent. strike We should re- sentencing guidelines

down the entire

gime as non- unconstitutional and

severable, resentencing for and remand statutory range

under the for the offense possible remanding of a imposition distinction between an ‘element’ and for aof felony 'sentencing a statutory offense and factor' was range under the prospectively would practice unknown to indict- criminal aggravating eliminate this issue because sen- ment, judgment by jury, by court trial tencing factors would be folded into the during years surrounding as it existed our judge’s discretion and not affect the founding.”); Nation’s id. at 494 120 n. range punishment. supra, See ("[W]hen (majority opinion) S.Ct. 2348 n. 1. 'sentencing de- term enhancement’ is used to perfect 5. are There no choices here. Under beyond scribe an stat- increase authorized proposed remedy, sentence, dissent's utory district equivalent is the it functional fixed-length greater sets sentences a within the an element of offense than the committed, verdict.”); statutory range for by jury's guilty the offense or one covered id. statute, (Thomas, J., range by is if no fixed to a fixed 120 S.Ct. 2348 term concur- ring) detailing range felony. within the a (exhaustively law default common for 609.03; history understanding §§ majority of the fact is Stat. 609.10 The "if a imposing increasing correctly points parole law the basis or out that former * * * board, punishment it is an which element” determined actual release dates Arizona, inmates, exists, being punished); Ring longer crime 536 no and that the U.S. S.Ct. judges 153 L.Ed.2d never intended to have un- J., (2002) (Scalia, (”[A]11 concurring) sentencing. facts discretion But fettered neither imposition pun- essential to entirely of the level did the intend to eliminate ishment that the defendant receives—whether sentencing, majority discretion in as the does offense, the statute calls them elements of the today. legislature merely The relocated factors, Mary be Jane —must parole judges discretion from the board to doubt.”); by jury beyond found a reasonable Project, prosecutors. Research 5 Ham- States, Harris v. United 536 U.S. compromise line L.Rev. at 303 n. 11. (2002) (plurality S.Ct. 153 L.Ed.2d emerged judicial which in 1978 embraced ("[Tjhose opinion) facts that determine goal proportionality discretion serve the allows, then, maximum the law allowing judges depart guide- crime.”) (citations necessarily elements of the lines, although in a manner offended the omitted). of a Elements crime must not 306. Sixth Amendment. Id. at While proven beyond be submitted to the board, parole cannot resurrect the dis- doubt, reasonable but must also be included judicial position sent's would retain dis- charging in the initial id. at instrument. See way cretion in that does not run afoul of the (holding legisla- 122 S.Ct. 2406 that the respects constitution the intentions of the "may manipulate ture not of a definition legislature. majority's wholesale way crime in a that relieves the Government of all discretion in elimination obligations charge of its constitutional each significant change, not the more envisioned indictment, element in ele- submit each by any body representatives. people's jury, prove ment to the element each case, doubt”). beyond Striking remanding present reasonable In the for resen- guidelines regime entirety range tencing Minnesota under the for the of- its CENTER, TRUCK

RIVER VALLEY

INC., Appellant, COMPANIES, INC.,

INTERSTATE Diesel, Detroit Interstate

d/b/a

Respondent.

No. A03-1273. Court Minnesota.

Supreme 29, 2005.

Sept. give departure fense committed would the district court court's durational 4(a) discretion to sentence Shattuck to a (2004). term of Minn.Stat. subd. up prison very to 360 months in 2(a) sen- —the tence he received virtue of the district notes Governor Anderson ve- parole abolished the board.2 Research toed the bill because its for ex- Project: Minnesota Guide- tended terms for chronic and dangerous lines, 5 Hamline L.Rev. offenders did not penalty define the (hereinafter Project”). bill, “Research such terms. But this observation un- perceived “get tough as a on criminals” bill derscores the pro- Governor’s concern for it all because would send felons to prison, portionality in sentencing public safe- proposal less serious than a ty. means objection Governor Anderson’s to the to stimulate consideration bill was not as narrow as the majority reform ideas. Id. 302. After extensive contends. The Governor worried that hearings prior to the 1976 ses- dangerous offenders would not receive suf- sion, completely the bill was rewritten. ficiently lengthy sentences under the new Id. Included the new bill pre- was a rationality law—that and proportionality sumptive sentence of 40% the might be in light sacrificed of the bill’s lack maximum in the 1963 criminal code guidance on the issue of extended provision allowing wrote, courts to from deviate terms. “[m]y major He concern is the presumptive range sentence within a simply [the deals inadequately bill] Senate, 15%. Id. passage After in the dangerous with chronic offenders.” Id. at bill moved to the House Committee on 6640. The Governor feared the bill would Crime Prevention terms; Corrections. “result in non-use of extended There, committee chairman Donald Moe basic determinate sentences in the bill

Notes

notes bate conference committee focused on by providing diversity a wide presump in sentencing provision discretion and a for tive sentences based on both offense sever extended sentences for the worst offenders ity history, goal and criminal serve the key part compromise proportionality. Misquadace, 644 N.W.2d ultimately emerged. The historical record explained Misquadace 68. We overwhelming legislators would not consistency, depar order maintain “[t]o have moved forward with the bill but for tures from the are discour 68; upward departures from aged.” Id. at Minn. Sent. Guidelines judicial “any sentences based on I. But we went on to note that ra So, history system sentencing discretion. of the bill tional must allow

Case Details

Case Name: State v. Shattuck

Court Name: Supreme Court of Minnesota

Date Published: Oct 6, 2005

Citation: 704 N.W.2d 131

Docket Number: C6-03-362

Court Abbreviation: Minn.