State v. Barker, No. A04-1453.

• Decision Date: 08 March 2005
• Docket Number: No. A04-1453.
• Citation: 692 N.W.2d 755
• Parties: STATE of Minnesota, Respondent, v. Duane Nathaniel BARKER, Appellant.
• Court: Minnesota Court of Appeals

692 N.W.2d 755

STATE of Minnesota, Respondent, v. Duane Nathaniel BARKER, Appellant.

No. A04-1453.

Court of Appeals of Minnesota.

March 8, 2005.

Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.

Considered and decided by TOUSSAINT, Chief Judge; MINGE, Judge; and WRIGHT, Judge.

OPINION

TOUSSAINT, Chief Judge.

This expedited appeal is from a sentence imposed for fifth-degree controlled substance offense. See Minn.Stat. § 152.025, subds. 2(1), 3(a) (2002). Appellant presents a Blakely challenge to the sentence, which was enhanced under Minn.Stat. § 609.11, subd. 5 (2002), the firearm-enhancement statute. See Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We reverse and remand.

FACTS

Appellant Duane Barker was charged with fifth-degree controlled substance offense, committed while possessing a firearm. Police, responding to a call regarding a suspicious vehicle on November 28, 2003, found Barker, asleep or passed out, behind the wheel of the vehicle. The officers could see a handgun lying on the front passenger seat. The gun was later found to be loaded, although no bullet was actually chambered for firing.

The officers discovered that Barker had outstanding warrants for driving after suspension. When they frisked Barker, one of the officers found an electronic gram scale in his pants pocket. They also found suspected cocaine in his pants pocket, along with three suspected crack pipes and suspected marijuana. An inventory search of the vehicle revealed cocaine in the driver's side door, a knife also found there, and two bongs.

The complaint charged Barker with a single count of fifth-degree controlled substance crime, committed "while possessing a firearm," and therefore subject to a sentence enhancement under Minn.Stat. § 609.11.

Barker agreed to waive his right to a jury trial, submit to a stipulated-facts trial, and have a contested hearing on the firearm enhancement, the only contested issue. Although defense counsel expressed the opinion that possession of the firearm was an element of the offense rather than a sentencing enhancement, he noted that the district court had disagreed in chambers. The court, however, clarified that, although it felt Barker was entitled to a jury trial on the firearm-possession allegation, the "present state of the law" was otherwise.

Barker testified at the hearing that the gun was found on the front passenger seat and that the gun was his. Barker testified that he told police the gun was there "for my protection," because he was concerned for his safety. He denied telling police at the scene that the gun belonged to "Robert." Barker testified the gun was for "protection only," and admitted that it was right next to him on the passenger seat. He also testified, however, that he had pulled the gun out from underneath the back seat when he was looking for his cell phone.

The district court concluded that Barker possessed the handgun at the time he possessed the drugs. In sentencing Barker under section 609.11, the court stated that, although it did not believe Barker was a drug dealer, the possession of the handgun increased the potential for violence, and, therefore, sentencing under Minn.Stat. § 609.11 was appropriate. The court sentenced Barker to 36 months in prison. This appeal followed.

ISSUES

1. Did the sentence enhancement for possession of a firearm under Minn.Stat. § 609.11, subd. 5 (2002) violate appellant's right to a jury trial under Blakely?

2. If so, what is the appropriate remedy?

ANALYSIS

I.

Barker argues that the enhanced sentence imposed on him based on the judge's findings violates the Supreme Court's holding in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999).

The presumptive sentence for fifth-degree controlled substance crime, given Barker's criminal history score, would have been one year and one day, stayed. Instead, he was sentenced under Minn.Stat. § 609.11, subd. 5 (2002), to an executed sentence of 36 months. Barker argues that this upward dispositional and durational enhancement, violates his Sixth Amendment right to a jury trial under Blakely.

In Blakely, the Supreme Court held that the sentencing judge may not impose a sentence greater than "the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, ___ U.S. at ___, 124 S.Ct. at 2537. In Blakely, the Court held that an upward durational departure (or "exceptional sentence," in the Washington state law's terminology) could not be imposed based on judicial findings. Id. at 2537-38.

The Minnesota Supreme Court has held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785 (Minn.2004) (ordering additional briefing on appropriate remedy); see also State v. Conger, 687 N.W.2d 639 (Minn.App.2004), review granted (Minn. Dec. 22, 2004) (stayed pending decision in Shattuck). This court, however, has held that Blakely does not apply to upward dispositional departures in Minnesota. State v. Hanf, 687 N.W.2d 659 (Minn.App.2004), review granted (Minn. Dec. 14, 2004).

The increased sentence imposed on Barker in this case, however, was not a guidelines departure as such, either durational or dispositional. The statute at issue provides:

[A]ny defendant convicted of [a qualifying offense] ... in which the defendant or an accomplice, at the time of the offense, had in possession or used ... a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law.

Minn.Stat. § 609.11, subd. 5(a). The statute does not reference the sentencing guidelines nor describe this enhancement as a "departure." Instead, the statute establishes a mandatory minimum.

The guidelines incorporate mandatory-minimum statutes like section 609.11 by, in general, using the mandatory minimum as the presumptive sentence, unless the presumptive term shown in the guidelines grid is longer. Minn. Sent. Guidelines II.E. The guidelines also provide that, whatever the presumptive disposition would otherwise have been, when an offender is sentenced under section 609.11, the presumptive disposition is execution of the sentence. Id.

Opinions of both the United States and Minnesota Supreme Courts have rejected the argument that Apprendi applies to mandatory minimum sentencing provisions. But those cases are not persuasive here in light of the guidelines provision making the section 609.11 mandatory minimum the presumptive sentence.

Our supreme court held in State v. Smith, 669 N.W.2d 19, 33 (Minn.2003), that Apprendi did not apply to the mandatory-minimum provision in the heinous-offense statute. In that case, the defendant, who was convicted of first-degree murder, faced a life sentence, but under the heinous-offense statute, instead of being eligible for release after 30 years, he was sentenced to life without the possibility of release. See id. The supreme court held that this did not increase the maximum sentence that could be imposed, which remained life, but merely changed the minimum term that the defendant would serve. Id. Therefore, Apprendi did not apply. Id.

The United States Supreme Court, also applying Apprendi, held in Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524 (2002), that a mandatory-minimum sentencing provision triggered when the defendant "brandished" a weapon during the offense, did not violate the defendant's right to a jury trial under Apprendi. Harris is superficially similar to this case because it also involved a firearm-enhancement provision establishing a mandatory-minimum sentence. It is different, however, because the minimum sentence mandated was one "the judge could have imposed absent the finding." Id. at 560, 122 S.Ct. at 2415.

Here, the district court could have imposed an executed sentence of 36 months without finding Barker possessed a firearm. To do so, however, the court would have had to cite substantial and compelling aggravating factors under the guidelines. Because Blakely, and now our supreme court in Shattuck, recognize the presumptive sentence as the "maximum" sentence authorized by the jury's verdict, the mandatory minimum has a different effect than in Harris. See Blakely, ___ U.S. at ___, 124 S.Ct. at 2537; Shattuck, 689 N.W.2d at 786. The mandatory-minimum sentence is no longer just the smallest of a number of authorized durations within the broad statutory sentencing range. It is now a sentence duration that must be compared to the presumptive sentence, the duration authorized solely by the jury's verdict under Blakely.

Under the sentencing guidelines, when a mandatory-minimum sentencing provision applies, the presumptive sentence becomes "the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer." Minn. Sent. Guidelines II.E. The firearm-enhancement statute applies to a wide range of offenses, including many, such as second-degree murder, kidnapping, and first-degree criminal sexual conduct, with ordinary presumptive sentences much longer than the three-year mandatory minimum provided in Minn.Stat. § 609.11, subd. 5(a). See Minn.Stat. § 609.11, subd. 9 (2002) (list of applicable offenses); Minn. Sent. Guidelines IV (guidelines grid), V (Offense Severity Reference Table). For these more serious...