State v. Barker, No. A04-1453.

• Decision Date: 17 November 2005
• Docket Number: No. A04-1453.
• Citation: 705 N.W.2d 768
• Parties: STATE of Minnesota, Appellant, v. Duane Nathaniel BARKER, Respondent.
• Court: Minnesota Supreme Court

705 N.W.2d 768

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

No. A04-1453.

Supreme Court of Minnesota.

November 17, 2005.

COPYRIGHT MATERIAL OMITTED

John M. Stuart, State Public Defender, Susan J. Andrews, Benjamin Butler, Assistant Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, St. Paul, MN; and Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.

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

OPINION

HANSON, Justice.

Respondent Duane Barker was convicted of possession of a controlled substance. The district court sentenced him under Minn.Stat. § 609.11 (2004) (providing for a mandatory minimum sentence of 36 months after a judicial finding of firearm possession during the commission of a predicate offense) to 36 months in prison. The court of appeals reversed the sentence as violating Barker's Sixth Amendment right to a jury trial based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The state sought further review, arguing that sentencing under the statute is advisory and therefore exempted from Blakely by United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 750, 160 L.Ed.2d 621 (2005). In the alternative, the state argues that Barker's sworn admissions at his sentencing hearing satisfy the "Blakely admission exception" and thus permit enhancement. We affirm the court of appeals.

Officers from the Hopkins Police Department found Barker sleeping in the driver's seat of his car with the lights on and the motor running. While interviewing Barker, the officers observed a handgun in plain view on the front passenger seat within Barker's reach. They placed Barker under arrest after determining that he had outstanding warrants for his arrest and that he did not have a permit for the handgun. The officers searched Barker and found drug paraphernalia, marijuana, and what was later determined to be 2.08 grams of powder cocaine.

Barker was charged with one count of fifth-degree possession of a controlled substance committed while possessing a firearm, in violation of Minn.Stat. § 152.025, subds. 2(1), 3(a) (2004), and Minn.Stat. § 609.11, subd. 5(a). The firearm possession component subjected Barker to a mandatory minimum executed sentence of 36 months. Minn.Stat. § 609.11, subd. 5(a). Because Barker's criminal history score was zero, the presumptive sentence for the underlying controlled substance offense without the firearm enhancement was 1 year and 1 day stayed. Minn. Sent. Guidelines V, IV.

Barker's attorney argued that the possession of a firearm component was an element of the charged offense, and therefore Barker was entitled to a jury trial on that allegation. Although the district court agreed, it felt the "present state of the law" was otherwise so it denied his request. After his request for a jury trial on the sentencing factors had been denied, Barker waived his right to a jury trial on the issue of guilt, and submitted the matter to the court on stipulated facts. For convenience, the court proceeded to conduct a sentencing hearing on the issue of the application of section 609.11 before adjudicating guilt.

Barker and both arresting officers testified at the sentencing hearing. Barker testified that he is not a drug dealer and admitted that he had the gun on his front passenger seat. He said he had the gun for "protection only." On cross-examination, Barker admitted that he owned the gun, that at one point while in the car he pulled it out from under the back seat, and that he could have grabbed and racked it "in a second" to "protect" himself. The essence of Barker's argument at the sentencing hearing was that the state did not prove that his possession of the firearm "increased the risk of violence" associated with the controlled substance offense. This is an additional finding that the district court must make before sentencing under section 609.11 where the firearm possession is merely constructive, as opposed to actual. State v. Royster, 590 N.W.2d 82, 85 (Minn.1999).

The district court found Barker guilty of fifth-degree possession of a controlled substance. In addition, the court found "beyond a reasonable doubt that the defendant had a loaded handgun in his possession on November 28, 2003, at the time he possessed the controlled substance." The court explained that although Barker was not a drug dealer, the firearm posed a "potential for serious violence." The court sentenced Barker to 36 months in prison.

The court of appeals reversed the sentence holding (1) sentencing pursuant to Minn.Stat. § 609.11 violated Barker's right to a jury trial under Blakely v. Washington, and (2) the Blakely admission exception did not apply because, although Barker admitted possession of the gun, he "did not admit that his possession of the gun increased the risk of violence of whatever crime he was then committing." State v. Barker, 692 N.W.2d 755, 757-60 (Minn.App.2005).

I.

The first issue before us is whether the mandatory minimum sentencing provision in Minn.Stat. § 609.11 implicates Barker's Sixth Amendment right to a trial by jury. Questions of constitutional interpretation are issues of law that we review de novo. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn.2004). Minnesota statutes are presumed constitutional, and the "party challenging a statute * * * must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution." State v. Grossman, 636 N.W.2d 545, 548 (Minn.2001).

The United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court subsequently applied this rule to sentencing guidelines, holding 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, 124 S.Ct. at 2537. The Court determined that the presumptive sentence under the Washington Sentencing Guidelines was the maximum sentence authorized by the jury verdict and that sentence enhancements beyond this maximum, made pursuant to judicial fact-finding, violate the Sixth Amendment. Id. at 2538. Finally, in Booker, the Court clarified that Blakely does not apply to advisory sentencing guidelines that merely recommend, rather than require, the selection of particular sentences in response to differing sets of facts. Booker, 125 S.Ct. at 750.

We recently addressed the effect of this Apprendi line of cases on the Minnesota Sentencing Guidelines and the sentencing enhancements required by Minn.Stat. § 609.109 (2004). State v. Shattuck, 704 N.W.2d 131 (Minn.2005). Prior to 2005 statutory amendments to conform with Blakely, section 609.109 required that a court impose a 30-year sentence upon the conviction of certain sex offenses where it determined that the person has a previous conviction of other enumerated sex offenses and "the crime involved an aggravating factor that would provide grounds for an upward departure under the Sentencing Guidelines." Minn.Stat. § 609.109, subd. 4 (2004), amended by Act of June 2, 2005, ch. 136, art. 16, § 9, 2005 Minn. Laws 901, 1117. Shattuck challenged his 30-year sentence, which the district court imposed pursuant to section 609.109 after it found four aggravating factors. Shattuck, 704 N.W.2d at 134-35. Based on the jury verdict alone, Shattuck's presumptive guideline sentence was 161 months' imprisonment. Id. at 134.

We first noted that "because section 609.109, subdivision 4, expressly incorporates the procedures of the Sentencing Guidelines for upward durational departures, the constitutional validity of the statute necessarily implicates the constitutional validity of upward durational departures under the Sentencing Guidelines." Id. at 138. After recognizing the limitations on a sentencing judge's discretion to depart from the presumptive guideline sentence, we held that "like the sentencing guidelines systems at issue in Blakely and Booker, under the Minnesota Sentencing Guidelines imposition of the presumptive sentence is mandatory absent additional findings." Id. at 141. Accordingly, the "presumptive sentence prescribed by the Minnesota Sentencing Guidelines is the `maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.'" Id. (quoting Blakely, 124 S.Ct. at 2537). We held that section 609.109 is unconstitutional because it authorizes upward durational departures from the presumptive guideline sentence "upon finding an aggravating factor without the aid of a jury." Id. at 142-43.

The mandatory minimum statute at issue here is slightly different from section 609.109 because instead of simply incorporating the aggravating factors of the Sentencing Guidelines, section 609.11 establishes separate factors that trigger its application. See Minn.Stat. § 609.11, subds. 4, 5 (use of a dangerous weapon or possession of a firearm during the commission of a predicate offense). But we see no basis to distinguish the two for Sixth Amendment purposes. As noted by the court of appeals in this case, because "[t]he mandatory minimum creates an alternative presumptive sentence * * * entirely determined by a judicial finding[,] * * * [it] functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence." Barker, 692 N.W.2d at 760.

The state argues that, unlike section 609.109 as addressed in Shattuck, the enhancements contemplated by section 609.11 are advisory, not mandatory. It relies on our decision in State v. Olson, 325 N.W.2d 13, 18-19 (Minn.1982), which held that the authority given to prosecutors...