State v. Saue

• Court: Minnesota Court of Appeals
• Writing for the Court: KALITOWSKI.
• Citation: State v. Saue, 688 N.W.2d 337, 2004 WL 2453211 (Minn. App. 2004)
• Decision Date: 02 November 2004
• Docket Number: No. A03-1182.,A03-1182.
• Parties: STATE of Minnesota, Respondent, v. Ross Adam SAUE, Appellant.

688 N.W.2d 337

STATE of Minnesota, Respondent, v. Ross Adam SAUE, Appellant.

No. A03-1182.

Court of Appeals of Minnesota.

November 2, 2004.

Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, St. Paul, MN; and Dwayne Knutsen, Chippewa County Attorney, Montevideo, MN, for respondent.

John M. Stuart, State Public Defender, John E. Mack, Special Assistant Public Defender, Mack & Daby P.A., New London, MN, for appellant.

Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.

OPINION

KALITOWSKI, Judge.

Following a jury trial in which he was convicted of third-degree assault, appellant Ross Adam Saue argues that the upward dispositional and durational sentencing departures were based on judicial findings and therefore violate his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S.Ct. 2531 (2004).

FACTS

On the night of August 29, 2002, Jeffrey Barrett and Marlee Nebben were confronted by Barrett's landlord, who had been attempting to evict Barrett. After Barrett pulled a knife, the landlord and another man jumped on Barrett, knocked the knife out of his hand, and started punching and beating him. The fight left Barrett "beaten up, bloody, and very angry." Nebben noticed that Barrett had bruises on both of his eyes, an egg-sized lump above one of his eyes, a mouthful of blood, and bruises and scrapes all over his body.

Meanwhile, many people had congregated near the area to watch the fight. After a brief argument between Barrett and Nebben, one of the onlookers chased after Barrett, tackled him, and threw him to the ground. Barrett hit his head on the cement, but managed to get up and flee in the direction of the railroad tracks. Four individuals chased after Barrett, and one of them caught up with Barrett by the railroad tracks, where he punched him down to the ground, and kicked him several times in the chest area. Nebben testified that at this point Barrett was "beaten up pretty badly." He had a black eye, a huge bump above his right eye, and his mouth and nose were bleeding. Most of the onlookers left, and Nebben saw Barrett running away.

Some of the onlookers told appellant Ross Saue and another individual, who were riding by in a car, that Barrett had pulled a knife on his landlord and had beaten up his girlfriend. Appellant and the other individual looked for but did not find Barrett. They were subsequently told that someone had spotted Barrett walking down Main Street looking "like he was tired" and "walking really slow." Appellant and four other individuals went looking for Barrett.

When the group spotted Barrett, they confronted him and chased him when he ran. Appellant and two other persons caught up with Barrett in a nearby skateboard park. Appellant told police that he caught Barrett, tackled him, dragged him to the ground, and kneed him in the face. All three proceeded to beat Barrett, kicking and punching him. Barrett was approximately five feet four inches tall and weighed between 117 and 130 pounds. In contrast, the three persons were all approximately six feet tall and weighed about 175 to 200 pounds. At trial, several people testified that at the end of the beating, as the other two persons were walking to the car, appellant stomped on Barrett. Barrett's body jerked forward and then went limp. But appellant testified that he stopped beating Barrett first and then called to the others to stop and leave.

One of the onlookers gave appellant a ride to her home, where he fell asleep. Meanwhile, the other two persons who had previously beaten Barrett returned to the skateboard park, where they picked up Barrett, shoved him into the car, and continued to beat him. Eventually, the two individuals pulled Barrett out of the car, continued beating him on the side of the road, and urinated on him before leaving. Later, the two individuals — with the help of two others — returned to the dirt road, located Barrett's body, drove to a gravel pit pond, and threw Barrett's body in the pond.

The autopsy report concluded that Barrett died of homicidal violence as a result of a beating. At the time of his death, Barrett had a blood alcohol concentration of .145. Appellant was charged with aiding and abetting second-degree intentional and felony murder, and was later indicted on charges of second-degree unintentional felony murder and first-degree assault.

The jury found appellant guilty of third-degree assault, a lesser-included offense, but acquitted him of all other charges. Prior to sentencing, the state moved for an upward dispositional and durational departure, which appellant opposed. Finding severe aggravating factors and substantial and compelling reasons justifying a durational and dispositional departure, the district court sentenced appellant to 60 months in prison, the statutory maximum sentence. Because appellant had no criminal history points, the presumptive sentence for his third-degree assault conviction was a stayed sentence of one year and one day.

ISSUES

1. Did the district court violate appellant's right to a jury trial by imposing an upward durational departure based on judicial findings?

2. Did the district court violate appellant's right to a jury trial by imposing an upward dispositional departure based on judicial findings?

ANALYSIS

I.

Appellant argues that the upward durational departure imposed on him, based on the district court's findings of aggravating factors, violates the Supreme Court's holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). See id. at 2537 (applying the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to Washington state sentencing guidelines). A decision to depart from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But appellant's challenge to the sentence imposed on him under the sentencing guidelines raises a constitutional issue. 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).

The Minnesota Legislature created the Minnesota Sentencing Guidelines Commission in 1978 to develop sentencing guidelines for the district courts. Minn.Stat. § 244.09, subd. 5 (1978). The guidelines were to be promulgated on or before January 1, 1980, and were to be "advisory to the district court." Id. They were to provide for a presumptive sentence and to allow for upward or downward departures of up to 15% from the presumptive sentence. Id., subd. 5(2). Thus, although the Minnesota guidelines are administrative rather than statutory in operation, they were developed under legislative mandate, and established various sentencing procedures for the district courts. See Minn. Stat. § 244.09, subd. 5 (2002) (providing that the guidelines are advisory but the sentencing court "shall follow" the guidelines procedures when pronouncing sentence in a felony case).

The district court sentenced appellant to an executed sentence of 60 months, which represented an upward dispositional departure and a quintuple upward durational departure from the presumptive stayed sentence of a year and a day. To support the departure, the court cited the particular vulnerability of the victim, the particular cruelty of the acts committed by appellant, and the participation of three or more persons in committing the crime. See Minn. Sent. Guidelines II.D.2.b.(1), (2), (10). These aggravating factors, all recognized grounds for departure under the guidelines, were found by the court to be present here. Appellant argues that under the Sixth Amendment, as interpreted in Blakely, he was entitled to a jury determination, based on proof beyond a reasonable doubt, of the presence of these or any other aggravating factors used to increase his sentence. We agree.¹

In Blakely, the Supreme Court held that the greatest sentence a judge can impose is "the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 124 S.Ct. at 2537 (emphasis in original). The Court found that the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543. The Court, therefore, reversed the 90-month exceptional sentence that had been imposed under Washington state's determinate sentencing scheme and remanded to the Washington Court of Appeals "for further proceedings not inconsistent with this opinion." Id. In a dissenting opinion, Justice O'Connor stated that the Blakely majority opinion "casts constitutional doubt" over all state guidelines systems, including Minnesota's. Id. at 2549.

The Minnesota Sentencing Guidelines are similar in operation to the guidelines in Washington that were at issue in Blakely.² The Washington guidelines, like Minnesota's, rely on a sentencing grid in which presumptive sentences are determined using two variables: (1) offense severity and (2) offender's criminal history (called "offender score" in Washington). See Wash. Rev.Code Ann. § 9.94A.510 (2003). In Washington, like Minnesota, a departure is not mandatory even if the court finds aggravating factors. See Wash. Rev.Code Ann. § 9.94A.535 (2003) (providing that court "may" impose an "exceptional sentence" if aggravating factors are found); see also State v. Mail, 65 Wash.App. 295, 828 P.2d 70, 72 (1992) (describing departure as an "option" if aggravating factors present); cf. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that, under the guidelines, the judge "may" depart if aggravating factors are present), and State v. Oberg, 627 N.W.2d 721, 724 (Minn.App. 2001) (noting that, even if mitigating factors are present, the court is not required to depart).

The state argues that, because the Minnesota guidelines are administrative...