Hennepin County District Court File No. 03084803.
Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.
A defendant's sentence may not be increased under Minn. Stat. § 609.11, subd. 5 (2002), based on a judicial finding that the defendant used or possessed a firearm during the commission of the offense. Because the statute creates a mandatory-minimum sentence that replaces the ordinary presumptive sentence, Blakely v. Washington, 124 S.Ct. 2531 (2004) requires that the finding be made by a jury if the mandatory-minimum sentence exceeds the ordinary guidelines presumptive sentence.
The opinion of the court was delivered by: 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, 124 S.Ct. 2531 (2004). We reverse and remand.
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 ...