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State v. King9/6/2005
tly held that a defendant is "entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial." State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005). In Fairbanks, we concluded that a case is "pending" as long as appellant has not exhausted "all rights to appeal and certiorari" and that if Blakely issues are raised on direct appeal, they are properly before us. Id.; see also O'Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004) (stating that "a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied."). Accordingly, and because a defendant's failure to raise Apprendi in the district court does not waive his right to assert Blakely on direct appeal, appellant has not waived his constitutional claim, and the state's argument is without merit.
Turning to the heart of appellant's argument, we recently addressed Blakely's effect on a district court's upward durational departure under the patterned-sex-offender statute in State v. Boehl, 697 N.W.2d 215 (Minn. App. 2005). Under the statute, when a district court imposes a sentence for certain cases of criminal sexual conduct, it "'shall' impose a sentence that is not less than double the presumptive sentence but not more than the statutory maximum if the defendant meets the criteria of a patterned sex offender." Boehl, 697 N.W.2d at 221 (citing Minn. Stat. § 609.108, subd. 1(a) (2004)). The criteria are:
(1) it reasonably appears the crime was motivated by the offender's sexual impulses or was a part of a predatory pattern of behavior that had criminal sexual conduct as its goal;
(2) the offender is a danger to public safety; and
(3) based on a professional assessment by an experienced examiner, the offender needs long-term treatment beyond the presumptive term of imprisonment and supervised release.
Id. (citing Minn. Stat. § 609.108, subd. 1(a)(1)-(3)). In Boehl, we concluded that a sentence under the patterned-sex-offender statute violated Blakely because a criminal defendant's sentence under the statute "was based on factors that go beyond mere criminal history and that were not admitted or found by a jury." Id. at 222. Because the defendant did not waive his right to a jury trial on the district court's findings, his sentence violated the Sixth Amendment, and this court reversed and remanded for sentencing in accordance with Blakely. Id. at 222-23.
The same holds true here, where the district court found:
he evidence supports a finding that [appellant] is a patterned sex offender. I think he's unamenable to treatment. I think the level of deceit and non[-]cooperation he showed during the evaluation process makes it very unlikely he can successfully complete treatment. And I am going to adopt the recommendations made by Corrections.
(Emphasis added.) Because it was error to sentence appellant to an upward departure from the presumptive sentence based on patterned-sex-offender findings made by the district court rather than a jury, we reverse and remand his sentence to the district court for resentencing in accordance with Blakely.
Affirmed in part, reversed in part, and remanded.
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