*1 judge’s district incumbent were in the More- was released.
when statement that he “modi-
over, concedes respondent in a month next this statement
fied” stating “[t]he release
subsequent press my performance
problem opponent’s up, and judge that she doesn’t show
as a is high do the work. She has
she doesn’t absenteeism, history of of has
rate carrying a making timely decisions unfinished cases on desk.” of
load evi- modification further provides
This allegation respon- of support
dence to an disregard of knowledge or reckless
dent’s falsity August statement. Given of evidence, did not err the district court
this learn denying request director’s I identity respondent’s sources.2 although
would affirm district grounds.
other
GILDEA, (dissenting). Justice Barry join dissent of Justice G.
I
Anderson. Minnesota, Appellant,
STATE THOMPSON, Respondent.
Margaret
No. A04-1808. of Minnesota.
Supreme Court
Sept. spondent be Because no requested should dismissed. argument, respondent 2. At oral filed, disciplinary to the district court petition this matter be remanded action has been with instructions the court to conduct whether an in cam- premature it is to address examination, camera, respondent’s two respondent’s appro- is sources era review of deter- sources. After the district court has Similarly, premature, it I priate. because credible, re- whether the were mined sources respondent's chal- decline to address would spondent suggests the district freedom of lenges First Amendment based on decide, would at least recommend speech grounds. investigation against re- whether the *3 Hatch, General, Paul, beyond doubt, Attorney St. a reasonable Mike reverse the MN, Klobuchar, court of Amy Hennepin County appeals. Brown,
Attorney, David C. Assistant Thompson worked at Rueben Lindh MN, County Attorney, Minneapolis, for Center, Family a nonprofit public service Appellant. agency, eight years and became its manager. finance On August Rue- Bruder, Mitchell, Bruder, P. Glen & ben Lindh terminated Thompson’s employ- Johnson, MN, Edina, Respondent. $600,000. embezzling ment for over On Stuart, Defender, John M. State Public 3, 2004, February the state filed a com- Butler, Benjamin *4 Roy Spurbeck, J. As- G. plaint against Thompson, charging her Defenders, sistant State Public Minne- with by nine counts of “theft ag- swindle MN, Curiae, apolis, for Amicus Minnesota $35,000” gregated over in violation of Public, State Defender’s Office. 609.52, (5) § 2(4), 3(1), Minn.Stat. subds.
(2002). Each count alleged Thompson had “obtained property or services in the aggregated value in excess of Thirty-Five ($35,000) Thousand from Dollars [Rueben by swindling company using Lindh] the OPINION artifice, trick, device other means.” PAGE, Justice. According complaint, Thompson to the money by stole manipulating the termi- Margaret Respondent Thompson Louise employees’ nated payroll by accounts and pleaded guilty to nine counts of theft obtaining fraudulent health care expense $35,000. over The swindle district court complaint reimbursements. The con- also to Thompson sentenced an executed term descriptions tained detailed of Thompson’s prison.1 of 114 months One hundred itemizing specific schemes a chart and fourteen months is a double durational transactions related to each count upward departure presumptive from the charged. sentence Sentencing under Minnesota’s Thompson
Guidelines. challenged her 2004, 14, April On a an result of upward on appeal, arguing sentence agreement reached between sentencing right departure violated her state, Thompson peti- and the a submitted a enhancement plea tion to of guilty. petition enter The required factors as under v. Wash stated that had entered into a 2531, 542 ington, 124 S.Ct. 159 U.S. plea” no “straight agreement on sen- (2004). appeals L.Ed.2d 403 The court of In tencing. ac- petition, Thompson agreed and reversed sentence. knowledged that she had been informed granted petition understood, the state’s for further attorney her among other review. Thomp Because conclude that things, penalty the the maximum “[t]hat * * * son voluntarily knowingly her impose waived court could for crime right findings imprisonment years to have a make on a fine of and/or count).” $100,000 support (per enhancement factors further ing upward departure proof acknowledged based on that she understood that months; months; Specifically, the district court sentenced count 6'—114 count 7—114 months; months; Thompson as follows: count 1—21 count 8—114 and count 9—114 months; months; imposed 2—27 count count 3—39 The months. district court each months; months; count 4—45 count 5—114 to run concurrent the others. sentences using to defraud Rueben Lindh trial or a intent right had the either
she she had swindle. trial that at such trial against right to confront the witnesses plea hearing, At the conclusion her, on subpoena witnesses right prosecutor informed district court behalf, testify to refuse right her seeking an that the state would be chose, testify so as she sentencing departure to Í14 months. suppression certain evi- request Thompson indicated Counsel knowledge, she indicat- dence. With that oppose upward depar- would waiving ed that she was hearing took Thompson’s sentencing ture. trial. 25, 2004, day after the place June Supreme Court issued its United States pleaded plea hearing, Thompson At the Blakely, 542 U.S. S.Ct. decision guilty to of the counts com- each 2531, 159 At the start of the L.Ed.2d 403. so, acknowl- plaint. doing again exchange occurred: hearing, following by counsel and edged, inquiry after legal first is a THE issue COURT: had informed that she been district *5 respect Supreme the issue with to Court those rights, of her that she understood Supreme States Court decision—United voluntarily she waiv- rights, and that was yesterday, decision was issued right jury pleading trial and ing her to Blakely the Washington, and there [v.] charged. the guilty to each of counts Supreme Court declared unconstitution- [sic] al a sentence'—a determinant sen- for her to factual respect With basis tencing up- an system where there was plea, admitted that she had Thompson defendant ward where the manager at employed been as the finance put not or in a factual acknowledged had Lindh, that had control over she Rueben jury rights trial essen- basis waived during the employee payroll, and that tially. hard to summarize deci- It’s payroll period “us[ed] relevant time she sentence, essentially in one but sion employees and discharged accounts for Supreme writ- what the Court decision processed] those em- payroll checks under Scalia said is that defen- ten Justice money ployee accounts but funnelled] dants, jury they if to have a trial wish accounts,” as well as into bank [her] own is right question on the of whether there “overpaid] plan cafeteria bene- [her]self doubt for a proof beyond reasonable acknowledged that she fits.” She further request or—in factual basis a state’s allegation in the com- had reviewed each Blakely case or the Court’s re- itemizing plaint, including chart quest decision for specific detailed transactions and amounts —Court’s they departure, are entitled —defendant complaint, in and that each count of the that matter decided is entitled have correctly chart reflected her thefts re- by a have discussed mat- jury. We respect through lated to counts With in extensively chambers this quite ter she Thompson to count stated that disa- afternoon. greed with total amount of the thefts [Counsel], you do wish to address
alleged, acknowledged that the amount but question? $35,000 statutory took she exceeded the Yes, I THOMPSON]: FOR
amount conviction required [COUNSEL do, Following our discus- to the Your Honor. explained count. also chambers, opportunity I had an sion money court how took the admit- she with Ms. to discuss the decision money ted that took the she Quite frankly, incidents, I think it’s a Thompson. hundreds including many complicated concept to ex- somewhat more than those necessary aggregate plain simple manner[ ] to—fashion beyond $35,000 threshold; [a] the offenses (2) lay Ms. person, but the amount taken in each of the that I have able has—I believe been counts for which there a departure was so, and has do Ms. indicated was substantially $35,000 greater than the to me that she does not wish to have a threshold —more than double all but to the elements that we (3) instance; one Thompson’s actions already discussed that she has admitted “high degree demonstrated a of sophisti- that, part guilty plea to as of her (4) cation planning”; Thompson’s the extent she needs to waive that actions violated “trust and confidence” proceeding, willing in this do “fiduciary relationship person as the so. who managed the books and handled the you THE Ms. do Thompson, COURT: money entrusted to do any questions have particular about this organization.” you your issue that discussed with attor- reversing sentence, ney? appeals court of concluded that No, your honor. [THOMPSON]: did knowingly, voluntarily, and intelli you THE COURT: Do wish a gently waive question decide the of whether there is a sentencing factors. State factual for a departure, basis Thompson, (Minn.App. N.W.2d 117 you ques- or do wish me to decide that *6 2005). Specifically, the court stated that tion? 26.01, 3, under Minn. P. R.Crim. subd. I you would wish to [THOMPSON]: de- governs jury which the waiver of on a trial it, jury. not the cide facts, stipulated a explicit defendant must you you THE Do COURT: understand ly waive, acknowledge in and either writ jury a for right have a to decide that ing orally record, or right on the her to doubt, proof beyond a [sic] reasonable testify, prosecution to have witnesses testi you waiving right giving and are that or fy in court in her open presence, ques to that up right, that correct? witnesses, tion the prosecution and to re quire any in Yes, testify favorable witnesses to that’s [THOMPSON]: correct. her behalf. 122. Thompson, N.W.2d at hearing impact After victim statements that, although Thompson The court held of Thompson’s from several former co- trial, orally right jury waived the arguments workers and the from counsel in orally did not waive or on writing either state, Thompson and the district the in specific rights the record the set out Thompson court sentenced to 114 months’ 26.01, and, 3, result, Rule as subdivision a court, imprisonment. explaining The the imposed the sentence violated aggravating sentencing factors supporting a right jury to trial on the upward depar- the durational sentencing at factors. 694 N.W.2d ture, stated as follows: “the record and court, proof beyond appeal the establishes a On to state reasonable the makes arguments. doubt that this is a economic of- a of state argues number The guide- as Thompson preserve any fense defined the failed to Blakely lines and Minnesota Statute.” The claim under because she did not (1) noted Blakely court further that: the counts raise a claim court. the district charged argues for which The also involved state defen- “may jury provided trial the jury waive to have determine right her waived orally writing or personally dant does so sentencing enhancement of the existence being in open the record after upon durational supporting right to trial Finally, advised of argues the state departure. imposed by jury having opportunity had Thompson’s sentence as after response, In and did with counsel.” court was constitutional to consult district jury pur- trial for Thompson’s right Thompson argues to have a that a violate Blakely establishing sentencing of enhance- poses under because trial to solely on facts admit- factors is more akin was based ment guilty the waiver by Thompson part stipulated her facts therefore ted governed by trial is to plea. 26.01, P. Rule subd. Minn. R.Crim. I. provides for such trials which argu first address state’s acknowledge the defendant shall preserve failed ment trial, testify at rights waive the it did not raise Blakely because she issue testify in prosecution have the witnesses argu find this in the district court. We presence, open court defendant’s lacking both curious and in.merit. ment witnesses, question prosecution those sentencing hearing, before the dis At the any favorable witnesses require sentence, imposed its an issue trict testify defense court. respect compliance with arose agreement and shall in writ- waiver be decision, Blakely which Supreme Court’s ing orally on record. day before. The issue had been issued 26.01, Relying P. subd. 3. Minn. R.Crim. by Thompson’s on-the-record was resolved 26.01, Rule subdivision to have deter waiver held, that appeals argues, and the court of sentencing enhancement factors. mine not, writing did either because she Thus, be Blakely squarely issue was record, orally acknowledge on the court. that the fore district *7 rule, in her rights set waive the out , squarely before the district issue was jury sen- right of the to a trial on waiver court, app it sufficiently preserved invalid. tencing enhancement factors was eal.2 Verschelde, explained v. we State As (Minn.1999), 192, 195 5 N.W.2d
II.
59
pro
a
stipulated
trial on
facts is
limited
a
argu
the state’s
next address
a
a
to enter
cedure that allows “defendant
on-the-record waiver
ment that Thomson’s
jury
right
his
to a
guilty,
of not
waive
plea
jury
to have
determine
right
of her
a
trial,
stipulate
prosecu
to
and then
fac
sentencing enhancement
existence of
added.)
(Emphasis
In ex
tion’s case.”
de
upward sentencing
supporting
tors
allowing
the rationale
plaining
state,
According to the
parture
valid.
was
stated that:
procedure, we
26.01,
Rule
subdi
governed by
this issue is
l(2)(a),
recognized
The
Rules
Lothenbach
vision
of the Minnesota
states,
Procedure,
Minnesota,
other
did
a
unlike some
provides that
Criminal
which
a condi-
not allow a defendant make
approval
criminal
defendant with
Osbome,
rights
also
we held that
defendant's
failure-to-preserve argument
2. The state’s
Blakely
mere
v.
cannot be forfeited
State
under
fails based on our recent decision in
Osborne,
(Minn.2006).
at 443.
In
silence. 715 N.W.2d
827 Therefore, guilty plea. pre- tional trial on sentencing enhancement factors is issue, right appeal pretrial serve the governed by 26.01, Minn. R.Crim. P. subd. required plead a defendant was not l(2)(a).
guilty, put and then himself and the Having 26.01, concluded Rule trial, through jury
state even if no l(2)(a), governs, subdivision turn now dispute. material facts were in To re- our attention to Thompson’s whether spond judicial waiv this inefficient use of resources, er this case complied with that the Lothenbach court set rule. Dettman, State v. procedure preserves forth a a de- we held that a defen right appeal fendant’s an dant’s waiver right jury avoids of the to a deter unnecessary jury otherwise trial. The mination of aggravating sentencing factors procedure Lothenbach calls “for the de- must knowingly, be made voluntarily, plea guilty, fendant to enter a of not 644, 651, intelligently. 719 N.W.2d trial, right waive his to a (Minn. and then 2006). WL at *5 A waiver stipulate to prosecution’s case.” in compliance 26.01, made with Rule subdi Thus, stipulation a Lothenbach can ben- l(2)(a), vision knowing, meets the volun efit a defendant preserving the de- tary, and intelligent requirement. right appeal.
fendant’s Specifically, at the beginning of her Verschelde, (discuss- at N.W.2d 194-95 sentencing hearing, the court informed Lothenbach, ing State 296 N.W.2d Blakely decision and of (Minn.1980)) (internal citations omit- to a ted). carry That rationale does over to enhancement factors. counsel situations such as here which the defen- then informed the court that he was able dant has admitted sufficient facts to estab- successfully explain issue to offense, lish charged the elements of the willing and that she was pleaded guilty, nonjurisdic- and waived all waive her right sentencing jury “to the tional claims. extent she needs to waive that in this Here, Thompson informed the district added.) ;proceeding.” (Emphasis court, court that she wanted the and not a Thompson, court then asked on the record jury, to decide whether there awas factual open if any she had questions sentencing departure. basis for a Thomp- about the Blakely issue. re son, however, stipulate did not to facts for sponded that she did not. purpose of determining sentencing en- then asked whether she wanted hancement Consequently, factors. the dis- *8 the court to decide whether there was a judicial trict court engaged fact-finding factual basis for a sentencing departure. factors, and found several aggravating responded She that she court wanted the which led it to Thomp- the conclusion that that question, jury. decide not a son’s offense was “a economic of- asked, you court then “Do you understand procedure fense.” This of determining a right jury have for a that sentencing proof decide enhancement factors is more doubt, beyond a you [sic] akin to a reasonable regarding bench trial the ele- waiving right ments of an offense than are that or giving up to a trial based that stipulated right, facts. is that We therefore conclude correct?” to which Thompson’s waiver of her replied, ‘Tes. That’s correct.”3 Based on not, sentencing While did at rights her each of the set out in Minn. R.Crim. P. 26.01, 3, hearing, acknowledge waiving that she was subd. it should be noted that at her
828 (b) record, attempted or Thomp- the offense involved an conclude the above monetary substantially great- a trial on of the actual loss son’s waiver complied substantially factors sentencing enhancement the usual or er than offense l(2)(a), 26.01, specified Rule subdivision with than the minimum loss greater voluntary, and in- knowing, statutes; was therefore in the telligent. (c) high degree of the offense involved a or or sophistication planning occurred next turn attention
We our time; period lengthy of over imposed the enhanced sentence whether with the sentencing comports by the (d) posi- the defendant his or her used sentencing guidelines. requirements commis- status to the tion or facilitate depart a trial review court’s decision offense, including positions of sion of the sentence guidelines’ presumptive the from confidence, trust, fiduciary relation- or of v. Shat for an abuse discretion. State ships; or (Minn.2005). tuck, 131, 704 140 N.W.2d (e) involved in the defendant has been compelling circumstances “Substantial the current of- other conduct similar to justify present record to must be the findings of fense as evidenced applicable presump from departures proceedings law civil administrative Sentencing in Minnesota tive sentences imposition professional or the sanc- McIntosh, 641 State v. Guidelines.” tions. 3, (Minn.2002); v. 8 see also State N.W.2d II.D.2.b(4). Minn. Sent. Guidelines (Minn.2003). Geller, 514, 665 N.W.2d Here, in sentenc- explaining its a court sentencing guidelines, Under ing departure, stated: upward sentencing depar- may impose respect on a defendant who commits This is ture 5, 6, “Major offense. economic of- all of the 57- counts nonphysical commitment-to-prison is defined as a econom- fense” month offenses. * * * two or more of the doing ic offense includes The reason I am that is that found aggravating listed factors proof five the record establishes be- sentencing guidelines. Minn. Guide- Sent. yond a reasonable that this is a doubt Carr, II.D.2.b(4); lines State major economic offense as defined (Minn.1985). 397, 402 The listed sentencing guidelines N.W.2d and Minne- Statute, are: there were mul- sota here (a)the was neces- multiple tiple beyond victims incidents what offense involved victim; sary to the over multiple per aggregation incidents theft innocence; jury; hearing, place person presumption three plea which took less than her; sentencing hearing, against months before call wit- confront witnesses petition Thompson acknowledged plea behalf; guilt on her own and have nesses orally on the record: and/or beyond Although proved doubt. reasonable counsel; represented counsel had that her our conclusion waiver her; rights had read explained her that she right to a enhance- charges complaint and understood *9 voluntary, knowing, was and in- ment factors her; mentally compe- against was she telligent, Thompson’s ac- is not based on tent; sentence that she knew the maximum knowledgments understanding of her facing; was she was aware of and that plea, rights guilty at time her ac- of her testify understood her to either understanding knowledgements at as she She also indicat- remain silent chose. here, time, presented on the record further right to a that her ed that she understood support that conclusion. by a 12- trial included the to: trial * * * $35,000. added.) (Emphasis Thus, the last count there [I]n were hundreds of incidents that could court relied on four of the aggravating charged many, many specified have been factors in the guidelines thefts —multi- incidents, ple many, monetary many, over-2500s. There were loss substantially greater than many the minimum beyond specified incidents what was needed loss in statute, high degree sophistication either for theft 2500 or over theft over 35,000. or planning, position and use of That’s in of trust to true each of these facilitate the commission of counts even the offense—to multiple without the inci- support mean, its conclusion that Thompson I I com- dents. think where matters mitted a economic offense. will aggravated, up are to take it to the next address each of in the factors turn. seriousness, Under level of there have to be guidelines, any if two of the guidelines’ more necessary incidents than are by relied on the sentencing court aggravate aggregate the matter. — for its economic offense are that, And say while the statute doesn’t by record, supported we must affirm I think that necessary required it’s imposed by sentence the sentencing under the law since the Court is re- court. See Minn. Sent. Guidelines II. quired to consider factors other than D.2.b(4) (stating “major that a prove what the state has to at sentenc- offense” includes “two or more of the cir- ing, and I think that many there are listed”) added). cumstances (emphasis beyond incidents what was needed to be proved at in each of the incidents, respect multiple With counts where there a departure. the sentencing court found that Thompson “multiple committed beyond incidents substantially amount taken is what necessary was for the aggregation to $35,000 greater than incident [sic]. $35,000.” the theft over Thompson was most of the matters —counts where charged by complaint with nine counts of there is a the amount taken * * * swindle, $35,000 theft each over in the double, was more than the amount aggregate. Each count set out detail $70,000 that was taken was well into the each incident of theft. Attached to the range. complaint a chart itemizing spe was each Secondly, there a high degree was cific transaction underlying each of the sophistication and planning used in * n * nine theft counts with which this incident. putting people charged. exception With the on payroll, former employees, and total amount alleged count Thompson immediately then taking them off and accuracy admitted to the of each transac hiding having that and it evade auditors’ alleged tion pleaded each count and anybody else’s detection for a six- guilty specific alleged based facts year period, that that sophistica level of each count. The district court found tion planning beyond is well a stan Thompson guilty and convicted and sen dard theft swindle. her on each alleged tenced count as lastly, And I think there is a sufficient complaint. beyond basis to establish a reasonable doubt Osborne, this was a violation trust and In State v. 715 N.W.2d in your fiduciary (Minn.2006), pointed relation- out that “con confidence ship person managed as the who duct underlying one conviction for which a money books and handled the and was defendant was sentenced cannot be used to organization. entrusted to do that support sentencing departure *10 counting impermissi- That sort of double Id. at 446. conviction.” separate for Id. ble. not be “a defendant should is because This conduct.” Id. for the same twice
punished err, court did not The district case, convictions Thompson’s In this however, major it economic when based its the individ- based on all of sentences were Thomp that finding findings on its offense Accordingly, the sen- transactions. ual of “high degree offense involved son’s use of these transactions tencing court’s and that planning” sophistication of- its again support of “trust” and used a Thompson position using the under- finding amounted to fense “fiduciary and her relation “confidence” conviction for conduct from one lying First, as commit the offenses. ship” to support was convicted to Thompson which earlier, because discussed separate convic- departures for upward trial on sentenc waived her Therefore, it an abuse of dis- was tions. factors and consented ing enhancement rely sentencing court to for the factors, cretion making findings on those the court aggrava- guidelines’ incidents as a multiple had the authori sentencing court here Moreover, ting factor. there findings. ty to make such judge, ample evidence from which reason, it was For the same fact-finder, beyond a reason could find as for the district also an abuse of discretion in offenses doubt that able use, guidelines’ as a sophistication court to high degree volved a of factor, monetary loss position the fact that used a planning and she trust, confidence, substantially greater fiduciary relationship than the or involved was ac More offenses. in the statute. to facilitate her specified minimum during guilty plea an over, may knowledged not base manager finance employed been as a had departure on upward durational responsible at Rueben Lindh and was already taken into legislature has that the Further, Thompson employee payroll. determining degree of seri account accounts payroll that she “us[ed] admitted Shattuck, 704 of the offense. ousness processed] discharged employees and words, “elements at 140. other N.W.2d ac employee under those payroll checks aggrava used as offense cannot be of an money into [her] funnel[ed] counts but sentenc ting impose factors to accounts,” “overpaid] as bank as well own for that same offense.” Os ing departure [herjself plan benefits.” As the cafeteria borne, (citing at 446 State v. 715 N.W.2d out, “put correctly pointed district court (Minn.1983)). Peterson, 329 N.W.2d * * * payroll on the and then ting people Here, nine guilty to Thompson pleaded hiding immediately taking them off and aggregated of “theft swindle counts any having it evade auditors’ or that and complaint. $35,000” alleged over six-year period, body detection for a else’s each nature of Because of the detailed sophistication plan that that level of complaint and because count within the beyond a standard theft ning is well be Thompson guilty district court found swindle.” on each count as yond a reasonable doubt findings of this factor court’s alleged complaint, use Because high involved a necessarily Thompson’s offenses using a factor amounted planning sophistication degree on each convicting used trust, position used a Thomp support count confidence, fiduciary relationship to economic offense. engaged son
831 charged fully commit the offenses are sup- imposed sentence by the trial court must record, be affirmed.4 ported by the we conclude that the
sentencing court did not abuse its discre- Reversed, found, sentencing
tion when it
under the
guidelines,
Thompson
J.,
committed a
GILDEA,
took no
part
major
Therefore,
economic offense.
consideration or decision of this case.
aggravating
dissent's concern that
calls into
justify
when
upward
factors
de
question
practice
adopted
we
in Williams
parture
upper
"the
limit will be double the
State,
(Minn.1985),
v.
HANSON, determining tion whether and how to (dissenting). Justice depart, comes into clearer focus. with the conclusion of agree I Although words, sentencing jury In other if a that waived her even majority the factors, facts, aggravating I is used it finds the sentencing and to by depart have decisions how much to Thompson’s that consent to to conclude automatic, depart upon factors are but call the court determine those the district discretion, to the extent that it did not district court to exercise based was ineffective experience the that could on court’s broader sen- possibility include the this court tencing compare the reject ability some of the factors relied on to facts of later case, by the jury, court af- the current as found by but nevertheless the district departure the cases. sentencing by an with facts of other similar Of firm the same course, review of the and a the court has no discretion independent record district depart aggravating Ac- to finds of other factors. unless the weighing facts, conversely I sen- but the district court has cordingly, would vacate or to decide resentencing depart, pre- to al- discretion not to tence and remand cisely depart, how where the jury the district court determine the much to low view, my finds weight given aggravating to be to the re- facts. this appropriate by Blakely. maining departure factors and to deter- discretion was not altered level appropriate departure. mine the clarity Given on the this better discre- court, I tionary that our case of the district recognize pre-Blakely I role con- willingness by clude that of this practice law reflected a this court the court of examining the record independently independently examine record to de- weighing particular facts to legitimate termine whether there are rea- sustain departure on both departure proper sons for a where the reason that was based given by improper generally district court is factors is unwise inadequate State, Instead, improper. Williams 361 N.W.2d should be discontinued. (Minn.1985). But I that believe that where court concludes some of changed aggravating by relied on Blakely landscape has suffi- us to that district court erroneous or ciently require improper, reconsider were practice, resentencing and in it should general both this case. remand for allow necessary the district court exercise use of general practice, As to the proper discretion on the to decide sen- perhaps sharpened appre- our has tence, based on the district court’s evalua- dynamics ciation of the of a aggravating tion of the remaining factors. dis- departure. When we assumed that the true, majority, It is perform finding as noted trict court could fact function, finding no occasion reflect on the district court’s we had offense, the additional discretion that the district committed a supported possesses to determine whether and which conclude aggravating minimum qualified after of two fac- precisely depart finding how to tors, district Now that conferred on the court the there were facts. impose discretion a double sen- Blakely has clarified that fact tencing departure But jury, departure. function done unless must be defendant, mandatory func- was not or automatic un- waived the other made Sentencing tion der the Minnesota Guidelines. of the district to exercise discre- sufficiency ground did to it. kind of review on the not consent Thus, MEYER, although (dissenting). the district could Justice reached the same decision have I join in the dissent of Justice Hanson. supported by economic offense qualified aggravating factors as it did two *13 finding it believed of a
when its supported by offense four
economic was factors, we cannot
qualified aggravating be that it because that
sure would have deci- left
sion is to the district court’s discretion. words,
In other of a offense, PETERSON, Respondent, made Darrell T. whether matter, or a jury, does not end the v. and the district court must then exercise JOHNSON, al., Arthur B. et defendants and, to depart discretion decide whether party plaintiffs, and third so, by if how much. Appellants, here, Moreover, where, defendant sentencing jury, waived the has any All heirs and devisees of the question arises whether the defen- persons above named who are finding by consent to dant’s fact the dis- al., deceased, Defendants, et independent trict court review includes of the record and of discretion the exercise advisory given this court. The Union, Lake State Federal Credit f/k/a court, Thompson by the district enable Union, Moose Lake Credit Federal knowing, intelligent, make a al., Party et Third Defendants. waiver,
voluntary any did not include men- No. A05-1450. possibility. tion of that And the consent by Thompson specific given to the Appeals Court of of Minnesota. it, judge you to district wish decide —“I Aug. jury.” not the record, On this Thompson’s consent was enough encompass
not broad our inde-
pendent weighing fac- Further, contemplated
tors. her consent the district after finding the
facts, in deciding would exercise discretion
whether and depart. how to Because we only speculate
can about how district discretion, might have exercised on two four aggravating
based instead of
factors, and are not engaged because we day day function criminal sen-
tencing, presume we should that the court would its
district exercise discretion manner, precisely but same should
remand to the district court for resentenc-
ing.