Hennepin County District Court File No. 03090707.
Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge;
and Poritsky, Judge.*fn1
Under Blakely v. Washington, 124 S. Ct. 2531 (2004), in order to constitute a valid waiver of the Sixth Amendment right to a jury trial, a defendant must explicitly acknowledge and waive, either in writing or orally on the record, her right to testify, to have prosecution witnesses testify in open court in her presence, to question the prosecution witnesses, and to require any favorable witnesses to testify in her defense.
The opinion of the court was delivered by: Halbrooks, Judge
Appellant pleaded guilty to nine counts of theft by swindle over $35,000 and acknowledged that she was giving up her right to a jury determination of the presence of a factual basis for a sentencing departure. The district court found that such a basis existed and sentenced appellant to the presumptive sentence on counts 1-4 and imposed concurrent sentences of 114 months--a double durational departure from the presumptive 57-month sentences--on counts 5-9. Appellant challenges her sentence, arguing that the upward departure violates her right to a jury trial under Blakely v. Washington, 124 S.Ct. 2531 (2004). Appellant also argues that the district court (1) should have considered the prosecution's tactic of charging multiple counts and declined to impose a durational departure, (2) erred in viewing appellant's conduct as a whole rather than analyzing the conduct involved in each count in its decision to depart, and (3) erred in failing to provide written reasons for the departure. Because we conclude that appellant's declaration did not constitute a knowing, voluntary, and intelligent waiver of her right to a jury trial under Blakely, we reverse and remand for proceedings not inconsistent with this decision. We do not reach the remaining issues.
Appellant Margaret Thompson was employed as a finance manager from 1987 until 2003, by Rueben Lindh Family Center (RLFC), a public-service agency providing services to impoverished citizens. In August 2003, appellant was confronted by RLFC management and accused of embezzlement. Appellant then admitted that she had stolen funds from RLFC by manipulating payroll and expense-reimbursement accounts.
After being terminated by RLFC, appellant was voluntarily interviewed by a Golden Valley police officer. During this interview, appellant admitted to all or substantially all of the allegations of embezzlement. Appellant was accused of committing approximately 300 episodes of embezzlement to steal over $600,000. As a result, appellant was charged with nine counts*fn2 of theft by swindle over $35,000 in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1), (5) (2002).*fn3 Appellant subsequently pleaded guilty to all nine counts in a "straight plea." No negotiations were held concerning appellant's sentence.
At the plea hearing, appellant acknowledged that she knew her rights and that she was voluntarily waiving her right to a jury trial and pleading guilty to the counts charged. Appellant admitted that she had been employed as a finance manager at RLFC and that, in the course of her job, she had control over the employee payroll. She then admitted that she "us[ed] payroll accounts for discharged employees and process[ed] payroll checks under those employee accounts but funnel[ed] the money into [her] own bank accounts[,]" as well as "overpaying [her]self cafeteria plan benefits[.]" Appellant was also asked about the specific incidents enumerated in the complaint.
[MR. BRUDER]: And, drawing your attention specifically to the chart beginning at the third page of the complaint and continuing on for several pages, uh, that chart itemizes the specific transactions and the amounts that are alleged in each count, is that correct?
Q: You have had a chance to review that, correct?
Q: And you agree that this chart . . . is accurate with respect to [c]ounts 1 through 8 of the ...