1. Blakely applies to a case where the time to petition the United States Supreme Court for certiorari to review a state court's affirmance of the conviction on direct appeal had not expired when Blakely was filed.
2. The forfeiture doctrine, by which a defendant's failure to object before the district court may narrow the standard of review on appeal, does not apply to a defendant's Blakely rights, which can only effectively be waived by following the procedures set forth in Minn. R. Crim. P. 26.01, subd. 1(2)(a), requiring an affirmative waiver.
3. A jury verdict on the elements of one offense cannot be used to support an upward departure in the sentence on another offense where the defendant was convicted and sentenced on the first offense or where the first offense was a lesser-included offense or arose from the same behavioral incident.
4. A Blakely error that increases the defendant's sentence by 67 months based on a qualitative assessment of the evidence concerning departure factors is not harmless.
The opinion of the court was delivered by: Hanson, Justice.
Concurring specially, Anderson, Paul H., Anderson, G. Barry, JJ.
Heard, considered, and decided by the court en banc.
An Olmsted County jury found respondent Anthony Osborne, Sr., guilty of 28 counts of drug-related offenses. The district court entered judgment of conviction on 23 counts and sentenced Osborne on 21 of those counts, resulting in an aggregate 268-month sentence that included three upward departures. Osborne appealed his conviction and sentence. The Minnesota Court of Appeals affirmed Osborne's conviction and sentence, and we denied review. After the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296 (2004), we granted Osborne's motion to reopen the direct appeal of his sentence for review of an alleged Blakely error and remanded the case to the court of appeals. The court of appeals reversed Osborne's sentence on the basis of Blakely and remanded to the district court. The state appeals that reversal, arguing that Osborne forfeited his Blakely claim for purposes of appeal by failing to raise the claim in the district court. We affirm the court of appeals.
Based on a series of controlled drug buys conducted by the Rochester Police Department, Osborne was charged in October 2001 with 28 counts of drug-related offenses. The charges included racketeering, conspiracy to commit controlled substance crime in the first degree, controlled substance crime in the third degree, and two counts of solicitation of a juvenile.*fn1 The charges resulted from a three-year police investigation of a drug-trafficking organization that imported drugs from Chicago for sale in Rochester. Osborne was alleged to have controlled this drug-trafficking organization, while his sons and others assisted with sales in the Rochester area. The jury found Osborne guilty on all 28 counts.
At his sentencing hearing, Osborne argued against upward departures from the sentencing guidelines, asserting that any upward departure would exaggerate the criminality of his offenses. The district court imposed a governing sentence of 225 months for count 3--importing controlled substances across state borders. That sentence reflected an upward durational departure of 67 months from the presumptive sentence of 158 months. Nineteen sentences were made to run concurrently with the governing sentence. The court also imposed upward durational departures for count 2-first degree conspiracy to commit a controlled substance crime, and count 27-the first conviction of solicitation of a juvenile. Because these latter two sentences ran concurrently with the sentence for count 3, they did not increase the length of Osborne's actual sentence. Finally, the court imposed a 43-month consecutive sentence for count 28-the second conviction of solicitation of a juvenile. This 43-month consecutive sentence was not an upward departure.*fn2
At Osborne's sentencing hearing, the district court stated that the court's Minnesota Sentencing Guidelines Commission (MSGC) report "will specify the additional grounds and elaborate on those grounds, including the * * * level of sophistication apparent here with respect to this particular defendant in the organization and in his conduct" including the degree of sophistication, large number of transactions involving cocaine and heroin, and the number of people involved. The court also stated that the sentences imposed were more "appropriate, reasonable and equitable than the presumptive sentence" because in the aggregate the defendant was a prime mover in a major controlled substance offense * * * involving trafficking under circumstances much more onerous in the aggregate than the usual offense and well beyond what is necessary to meet the elements of any of the crimes of conviction in this case, exceeding the prerequisites of the label "major controlled substance offense."
Without any upward departures, Osborne's total sentence would have been 201 months, but because the court departed upward, Osborne's total sentence was 268 months.
The district court's MSGC report identified the specific factors on which the upward departures were based. For the 67-month upward departure on count 3, the aggravating factors identified in the report were that (1) Osborne "committed crime as part [of] a group of three or more persons who all actively participated in the crime," and (2) the crime was a "major controlled substance crime" involving "high position in drug distribution hierarchy," "high degree sophistication/lengthy period of time," and "use of position/status."
The district court identified two aggravating factors for its upward departure on count 2: (1) Osborne "committed crime as part [of] a group of three or more persons who all actively participated in the crime," and (2) the crime was a "major controlled substance crime" involving "3 or more separate transactions," "sale quantities substantially larger than personal use," "high position in drug distribution hierarchy," and "high degree sophistication/lengthy period of time."
Finally, the district court identified four aggravating factors for its upward departure on count 27: (1) the juvenile "victim was particularly vulnerable - co-defendant son," (2) Osborne "committed crime as part [of] a group of three or more persons who all actively participated in the crime," (3) the crime was a "major controlled substance crime" involving "3 or more separate transactions," "involved manufacture for use by others," "high position in drug distribution hierarchy," "high degree sophistication/lengthy period of time," and "use of position/status," and (4) "position of authority, superiority, confidence or trust - father/son."
Osborne appealed his sentence to the court of appeals, arguing that the district court abused its discretion because the aggravating factors "duplicated considerations incorporated in statutes relating to drug crimes and presumptive sentences." State v. Osborne, No. C1-03-253, 2004 WL333469, at *6 (Minn. App. Feb. 24, 2004). The court of appeals rejected Osborne's argument and affirmed the district court. Id. at *8. The court of appeals essentially held that because the district court found that the factors enumerated in Minnesota Sentencing Guidelines II.D.2.b(5) were met, substantial and compelling circumstances were present and the district court did not abuse its discretion in imposing upward departures. Id. The court of appeals did not directly address Osborne's argument that the factors relied upon for the departures duplicated other sentencing considerations.
Osborne then filed a petition for review, which we denied. During the time within which Osborne could petition the United States Supreme Court for certiorari, Blakely v. Washington, 542 U.S. 296 (2004), was decided. The rule established by Blakely is that, other than a prior conviction, any fact that is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted to by the defendant or proved to a jury beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 244 (2005); State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005). Osborne moved to reopen his direct appeal for review of an alleged Blakely violation.
We granted Osborne's motion, vacated our earlier order denying review, vacated the court of appeals' decision with respect to sentencing, and remanded to the court of appeals for reconsideration in light of Blakely. The court of appeals determined that Osborne's sentence violated Blakely because the aggravating factors relied upon for the upward departures were not found beyond a reasonable doubt by the jury. State v. Osborne, No. C1-03-253, 2005 WL 65517, at *4 (Minn. App. Jan. 11, 2005). The court then reversed Osborne's sentence and remanded to the district court. Id. The state appealed the reversal of Osborne's sentence and we granted review. On appeal, the state argues that the court should review this case under the plain error standard because Osborne forfeited consideration on appeal of any Blakely violations by failing to preserve the error at sentencing. Alternatively, the state argues that the jury verdicts on other counts encompassed the findings necessary to support the upward departures on counts 2, 3, and 27, and therefore there was no Blakely error.
We have previously concluded that Blakely announced a new rule of constitutional criminal procedure. Houston, 702 N.W.2d at 273. New rules of constitutional criminal procedure apply retroactively to cases pending on direct review at the time the new rule is announced. O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). A case is pending on direct review until the time period for filing a certiorari petition with the United States Supreme Court has expired. Id. A petition for certiorari to the Supreme Court is due within 90 days of entry of judgment. Sup. Ct. R. 13(1). We denied Osborne's petition for review of his sentence on May 18, 2004. Because Osborne had 90 days, or until August 16, to file a petition for certiorari with the Supreme ...