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State v. Fairbanks

November 2, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
BRUCE RAY FAIRBANKS, APPELLANT.



Anoka County District Court File No. KX-00-7845.

Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Harten, Judge.

SYLLABUS BY THE COURT

Whether a defendant's conviction involves "aggravating factors" that warrant sentencing as a "dangerous offender" under Minn. Stat. § 609.1095, subd. 2(2)(ii) (2002) is a jury determination by application of the Sixth Amendment and Blakely v. Washington, 124 S. Ct. 2531 (2004).

A defendant's knowing waiver of the right to a jury trial on a criminal charge is not presumed to constitute a waiver of the defendant's right to have a jury determine any facts necessary to a subsequent sentencing decision.

The opinion of the court was delivered by: Lansing, Judge

Vacated and remanded

OPINION

On remand following appeal, the district court reduced Bruce Fairbanks's kidnapping sentence from 480 months to 240 months, but ordered that he serve it consecutively to his 240-month assault sentence. Fairbanks appeals, contending that the combined upward durational departure and consecutive sentence is not supported by severe aggravating circumstances and that the sentence is constitutionally invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004). We vacate the sentence and remand for proceedings consistent with Blakely.

FACTS

Bruce Fairbanks appealed his conviction and sentence for first-degree assault against a correctional employee in violation of Minn. Stat. § 609.221, subd. 2 (1998), and kidnapping in violation of Minn. Stat. § 609.25, subd. 1(1) (1998). State v. Fairbanks, No. C0-02-1576, 2003 WL 21911109 (Minn. App. Aug. 12, 2003) (Fairbanks I), review denied (Minn. Oct. 21, 2003). We affirmed the sufficiency of the evidence to prove the requisite intent for the assault charge. But we remanded to the district court for reconsideration of the 480-month sentence for kidnapping based on the Minnesota Supreme Court's intervening decision in Neal v. State, 658 N.W.2d 536 (Minn. 2003), which cautioned against sentences approaching the statutory maximum absent severe aggravating circumstances. Fairbanks I, 2003 WL 21911109, at *5 (citing Neal, 658 N.W.2d at 546).

On remand, the district court replaced the concurrent 240-month and 480-month sentences for the assault and kidnapping, respectively, with consecutive 240-month sentences. To support the greater-than-double departure on the kidnapping sentence, the court relied on Minn. Stat. § 609.1095, subd. 2 (2002), and four additional factors: the victim was particularly vulnerable; Fairbanks treated the victim with particular cruelty; he engaged in a significant amount of planning prior to the incident; and his actions placed multiple persons at risk.

In this second appeal, Fairbanks challenges the adequacy of the aggravating circumstances to support the combined upward durational departure and consecutive sentence and the constitutionality of his sentence under Blakely v. Washington, 124 S.Ct. 2531 (2004).

ISSUE

Does the district court's upward departure on the kidnapping sentence violate appellant's Sixth ...


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