Hankerson v. State, No. A06-168.

• Decision Date: 26 October 2006
• Docket Number: No. A06-168.
• Parties: Dena Lyn HANKERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 232

723 N.W.2d 232

Dena Lyn HANKERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A06-168.

Supreme Court of Minnesota.

October 26, 2006.

Rehearing Denied November 9, 2006.

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Saint Paul, MN, Stephen Betcher, Goodhue County Attorney, Goodhue County Justice Center, Red Wing, MN, For Respondent.

Benjamin J. Butler, Assistant State Public Defender, Office of the MN State Public Defender, Minneapolis, MN, For Appellant.

Heard, considered, and decided by the court en banc.

OPINION

HANSON, Justice.

Appellant Dena Lyn Hankerson filed a petition for postconviction relief challenging her aggravated sentence because it was based on judicial fact finding in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The postconviction court denied Hankerson's request to vacate her sentence and impose the presumptive guideline sentence, but ordered a sentencing hearing in which it proposed to impanel a sentencing jury to resentence Hankerson under the authority of the 2005 legislative amendments to Minn.Stat. § 244.10, subd. 5(a). Hankerson argues that the court is not authorized to use a sentencing jury because, although the amendments to section 244.10 retrospectively authorize the use of a sentencing jury, the 2005 amendments to Minn. Sent. Guidelines II.D do not retrospectively authorize the court to impose an aggravated sentence based on the jury's findings. She also argues that, if the amendments effectively authorize the retrospective use of a sentencing jury, they are invalid because they violate the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. We affirm.

Following a jury trial Hankerson was convicted of, among other crimes, first-degree criminal sexual conduct. The conviction arose out of a burglary and the sexual assault of a 12-year-old girl who was babysitting two young children. After a brief sentencing hearing, the court sentenced Hankerson to 264 months in prison, a 120-month upward departure from the 144-month presumptive sentence. The court explained:

There are substantial and compelling circumstances justifying an upward departure. [The victim] was 12 years old, baby-sitting, and was particularly vulnerable. You used particular cruelty. You struck her on both sides of the face. You threatened to kill her. You threatened to kill the children in her charge. The crime involved multiple acts of penetration perpetrated against her, you forced her to penetrate you. And you used threats and coercion. That's not an element of the crime but that's how you pulled it off.

The court also imposed separate sentences for the burglary and terroristic threats convictions. The court of appeals affirmed, but reversed the terroristic threats sentence because it arose out of the same behavioral incident as the sexual assault. State v. Hankerson, No. A03-131, 2004 WL 771304, at *3 (Minn.App. April 13, 2004). On June 15, 2004, we denied review.

On June 24, 2004, the United States Supreme Court decided Blakely v. Washington. In Blakely the Court invalidated the defendant's aggravated sentence imposed under the Washington Sentencing Guidelines—which are substantially similar to the Minnesota Sentencing Guidelines — because it violated the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blakely, 542 U.S. at 303-05, 124 S.Ct. 2531. In Apprendi the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. The Blakely Court clarified that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531.¹

On June 2, 2005, the legislature responded to Blakely by amending section 244.10, subd. 5(a), and Minn. Sent. Guidelines II.D to provide for sentencing juries and bifurcated trials. Act of June 2, 2005, ch. 136, art. 16, §§ 3-6, 14, 2005 Minn. Laws 901, 1115-16, 1119. After the amendment, section 244.10, subd. 5(a), reads as follows:

When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state's request for an aggravated departure from the Sentencing Guidelines as provided in paragraph (b) or (c) [addressing when the proceeding is to be unitary or bifurcated].

Minn.Stat. § 244.10, subd. 5(a) (Supp. 2005). These amendments apply "to sentencing hearings, resentencing hearings, and sentencing departures sought on or after" the effective date of the act. Sections 3-6, 2005 Minn. Laws at 1115-16. As amended, Minn. Sent. Guidelines II.D provides:

The sentence ranges provided in the Sentencing Guidelines Grid are presumed to be appropriate for the crimes to which they apply. Thus, the judge shall pronounce a sentence within the applicable range unless there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grid. A sentence outside the applicable range on the grid is a departure from the sentencing guidelines and is not controlled by the guidelines, but rather, is an exercise of judicial discretion constrained by case law and appellate review. However, in exercising the discretion to depart from a presumptive sentence, the judge must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.

Furthermore, if an aggravated durational departure is to be considered, the judge must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt. If the departure facts are proved beyond a reasonable doubt, the judge may exercise the discretion to depart from the presumptive sentence.

The amendments to Minn. Sent. Guidelines II.D were made effective on "the day following final enactment." Section 14, 2005 Minn. Laws at 1119.

On August 18, 2005, we decided State v. Shattuck, holding that, under Blakely, "Minnesota Sentencing Guidelines II.D is unconstitutional insofar as it permits an upward durational departure based on judicial findings." State v. Shattuck, 704 N.W.2d 131, 143 (Minn.2005). We initially remanded for imposition of the guideline sentence but later modified the remand language for "resentencing consistent with this opinion," while recognizing the possibility of using the 2005 sentencing amendments. Id. at 148 & n. 17. We noted that we were not expressing an opinion on the constitutionality of these amendments. Id. at 148 n. 17.

Hankerson filed her petition for postconviction relief on August 15, 2005, arguing that Blakely required imposition of the presumptive sentence under the Guidelines because it was the maximum sentence authorized by the jury's verdict. The postconviction court denied Hankerson's request but scheduled a "resentencing jury trial." Hankerson filed an appeal to the court of appeals but we granted accelerated review on the issue that we left open in Shattuck: the effect and constitutionality of the 2005 amendments to Minn.Stat. § 244.10, subd. 5(a), and Minn. Sent. Guidelines II.D. Shattuck, 704 N.W.2d at 148 n. 17.

I.

Hankerson first argues that the 2005 amendments do not retrospectively apply to her case. Hankerson suggests that section 244.10 only addresses the identity of the fact finder, whereas Minn. Sent. Guidelines II.D is the critical provision that authorizes a district court to impose an aggravated sentence based on the findings of the fact finder. Hankerson argues that although the revisions to section 244.10, contain retroactivity language making them applicable to "resentencing," the amendments to Minn. Sent. Guidelines II.D do not and, therefore, the authority to use a sentencing jury to impose an aggravated sentence only applies to convictions entered after the act's effective date. In other words, Hankerson argues that although the 2005 legislation authorizes the retrospective use of sentencing juries, a court is without power to actually use the jury's findings for her conviction, which was entered before the act's effective date, because the amendments to Minn. Sent. Guidelines II.D were not made retrospectively applicable to that conviction.

The state argues that even if the former version of Minn. Sent. Guidelines II.D is controlling, it should be construed to authorize a district court to use the jury's findings to impose an aggravated sentence. The version of Minn. Sent. Guidelines II.D that existed when Hankerson's conviction was entered provided:

The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law. * * * When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.

Minn. Sent. Guidelines II.D (2004).

We agree with the arguments of the state. Nothing in the former language of Minn. Sent. Guidelines II.D prohibits a court from imposing a sentence based on facts found by a jury. It requires the "judge" to provide...