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State v. Losh

April 5, 2005

STATE OF MINNESOTA, RESPONDENT,
v.
STEPHANIE DAWN LOSH, APPELLANT.



Cass County District Court File No. K5-02-1236.

Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

SYLLABUS BY THE COURT

Under Minnesota law Blakely v. Washington, 124 S. Ct. 2531 (2004), does not apply retroactively to a defendant's pending probation-revocation appeal taken after the time to file a direct appeal from the final judgment has expired.

The opinion of the court was delivered by: Toussaint, Chief Judge

Affirmed

OPINION

Appellant challenges (1) the validity of the upward durational departure of her sentence under Blakely v. Washington, 124 S.Ct. 2531 (2004) and (2) the revocation of her probation and execution of her sentence. Because we hold that Blakely does not apply retroactively to a pending probation-revocation appeal after the time to file a direct appeal from the final judgment has expired, we affirm appellant's sentence. And because the district court did not abuse its discretion by revoking appellant's probation, we affirm the execution of her sentence.

FACTS

Appellant Stephanie Losh was involved in an incident in which two of her friends beat an individual who later died from his injuries. Losh was indicted by a grand jury for second-degree murder and pleaded guilty to aiding and abetting kidnapping under a plea agreement. At the August 18, 2003, sentencing hearing, both parties made arguments regarding the possibility of a dispositional departure but not a durational departure.

The district court sentenced Losh to 120 months in prison. This upward durational departure from the presumptive 86 months was based on the aggravating factor of the victim's vulnerability. The court then dispositionally departed from the sentence by staying execution, ordering Losh to serve one year in jail with Huber privileges for school and chemical dependency treatment, and placing her on probation for 40 years. The conditions of probation included refraining from use of mood-altering substances and submitting to random drug testing.

While serving her jail time, Losh attended classes at Northwest Technical College. Nine days before her sentence expired, Losh returned to jail from school and reported that she did not feel well. When a corrections officer asked if Losh had taken anything for her illness, she reported that she had taken a pill from her aunt, who also attended classes at the college, but did not know what the pill was. Losh was then given a urinalysis test which tested positive for morphine.

At the March 8, 2004 probation violation hearing, Losh testified that she had asked her aunt for a Tylenol. Her aunt did not have a Tylenol but gave Losh a pill that Losh thought was a Motrin. Losh claimed that, when she later called her mother from the college and reported that she did not feel well, she realized that the pill her aunt had mistakenly given her was a hydrocodone, which her aunt had been prescribed for a previous miscarriage. Losh testified that she did not intentionally violate her probation and that ingesting the hydrocodone, containing morphine, was accidental.

The district court revoked Losh's probation, telling her, "Your attorney argues forcibly for you that this was not an intentional act, but I do not find that to be credible." The district court then executed Losh's 120-month prison sentence. Losh challenges the constitutional validity of the upward durational departure ...


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