1. A defendant's failure to object to his sentence on Blakely grounds at the district court does not forfeit appellate review of the alleged Blakely error.
2. An express, knowing, voluntary, and intelligent waiver of the right to a jury determination of facts supporting an upward sentencing departure is required before a defendant's statements at his guilty-plea hearing may be used to enhance his sentence beyond the maximum sentence authorized by the facts established by his guilty plea.
3. A defendant's statements to police during interrogation are not admissions on which a district court may base an upward sentencing departure.
4. A Blakely error that increased the defendant's sentence by 72 months was not harmless error.
The opinion of the court was delivered by: Anderson, Russell A., Chief Justice.
Concurring specially, Anderson, Paul H., J.
Dissenting, Gildea, and Page, JJ.
Heard, considered, and decided by the court en banc.
Respondent Douglas Alan Dettman pleaded guilty to one count of first-degree criminal sexual conduct. The district court sentenced him to 216 months in prison, a 72-month upward departure from the presumptive sentence. See Minn. Stat. § 609.342, subd. 2(b) (2004). While his case was pending on appeal, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). Based on Blakely, the court of appeals reversed Dettman's sentence, holding that the upward sentencing departure was unconstitutional because it was based on judicial findings of fact. State v. Dettman, 696 N.W.2d 812, 813, 816 (Minn. App. 2005). The court concluded that Dettman's statements at his plea hearing could not constitutionally be used to support the departure "[b]ecause Dettman did not expressly waive his right to a jury determination of any fact supporting an upward durational departure." Id. at 815. We affirm the court of appeals' decision, holding that the upward departure violated Dettman's Sixth Amendment right to a jury determination of facts supporting an upward durational departure. Because Dettman's statements were not accompanied by an express, knowing, voluntary, and intelligent waiver of this right, they cannot be used to support the upward departure.
The facts giving rise to this appeal are relatively straightforward. In the late hours of May 12 or very early on May 13, 2003, Dettman called L.L.B. on the phone and asked her to come to his apartment to assist her boyfriend, who Dettman said was in trouble. When L.L.B. arrived at Dettman's apartment, Dettman told her that her boyfriend had gone to purchase cigarettes, and L.L.B. entered the apartment to wait for his return. Dettman then grabbed a piece of duct tape and attempted to cover L.L.B.'s mouth with it. When L.L.B. fought back, Dettman restrained her and told her to be quiet or he would cut her throat. Dettman then instructed L.L.B. to get undressed and get on his bed, where he penetrated her vaginally with his fingers and put his mouth on her vagina. According to the criminal complaint, Dettman also told police that he ordered L.L.B. to sit on his face and urinate into his mouth. At this point, the attack was interrupted by the Rochester police, who had responded to a report of a woman screaming for help in Dettman's apartment. The police found L.L.B. naked on Dettman's bed with blood around her mouth. The police also found a folding knife in Dettman's pants pocket.
Dettman was arrested and charged with three counts of first-degree criminal sexual conduct and one count of kidnapping. On January 12, 2004, Dettman pleaded guilty to one count of first-degree criminal sexual conduct in exchange for dismissal of the other charges. At the plea hearing, the district court informed Dettman of his right to a jury trial on the issue of guilt, which he waived. Dettman then admitted luring L.L.B. to his apartment by telling her that her boyfriend was in trouble, performing multiple types of sexual penetration, and causing her to fear great bodily harm by threatening to slit her throat.
On March 1, 2004, the district court sentenced Dettman to 216 months in prison, a 72-month upward departure from the 144-month presumptive sentence provided in Minn. Stat. § 609.342, subd. 2(b). The court based the departure on the particular cruelty with which the offense was committed and the lasting psychological impact on the victim. With respect to particular cruelty, the court determined that Dettman (1) exploited his knowledge of L.L.B.'s relationship with her boyfriend to lure her to Dettman's apartment, (2) subjected L.L.B. to multiple forms of penetration, (3) planned and prepared for the assault by pre-cutting duct tape that he planned to use to silence L.L.B., and (4) ordered L.L.B. to engage in especially repulsive acts.
Dettman appealed, and while his appeal was pending before the court of appeals, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). In Blakely, the Court reiterated its holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the Sixth Amendment requires that, other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed "statutory maximum" must be proved to a jury beyond a reasonable doubt. Blakely, 542 U.S. at 301-02; Apprendi, 530 U.S. at 490. Blakely reformulated the definition of "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. Thus, the rule established by the Apprendi line of cases is that "[a]ny fact (other than a prior conviction) which 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 by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244 (2005).
At the court of appeals, Dettman argued that the upward departure in his case violated the rule announced in Blakely because the departure was based on facts found by the district court. Relying on Blakely, the court of appeals concluded that the upward departure violated Dettman's Sixth Amendment right to a jury determination of aggravating sentencing factors and reversed and remanded for resentencing. Dettman, 696 N.W.2d at 816. The court of appeals noted that the "findings supporting the upward durational departure were made solely by the district court," and, under Blakely, Dettman was "entitled to a jury determination of any fact that increases the presumptive sentence." Dettman, 696 N.W.2d at 815. The court concluded that a defendant must make an express on-the-record waiver of his right to a jury determination of aggravating sentencing factors before his statements at a plea hearing may be used to enhance his sentence. Id. "Because Dettman did not expressly waive his right to a jury determination of any fact supporting an upward durational departure, his 'admissions' at the plea hearing should not be considered as such for purposes of the [admission] exception to the rule in Blakely." Dettman, 696 N.W.2d at 815. We granted the state's petition for review.
We have previously determined that Blakely announced a new rule of constitutional criminal procedure which applies to cases pending on direct review at the time Blakely was decided. State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005); O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). Because Dettman's direct appeal was pending before the court of appeals when Blakely was decided, the substantive rule of Blakely applies retroactively to Dettman's case. See Houston, 702 N.W.2d at 270, 274.
On appeal to this court, the state argues that Dettman forfeited appellate consideration of the alleged Blakely violation by failing to preserve the error at the district court. The state contends that most district court errors, if not properly preserved for appeal, are deemed forfeited and that any appellate review of the error must be under the plain error standard. In addition, the state argues that, irrespective of the standard of review, no Blakely error occurred in this case because Dettman admitted the facts necessary to support the sentencing departure at his plea hearing and in statements made to police, which were later incorporated into the complaint. This case thus presents two Blakely-related questions: (1) whether Dettman forfeited appellate review of his Blakely claim by failing to object on Blakely grounds at the district court; and (2) whether the upward sentencing departure may constitutionally be based on statements Dettman made at his plea hearing and statements attributed to him in the criminal complaint.
We first address the state's contention that Dettman forfeited consideration on appeal of his Blakely claim because he failed to preserve the alleged Blakely error below. The state correctly notes that Dettman did not object at the district court to his sentence on the basis of a violation of his Sixth Amendment jury-trial right. Generally, a district court error not objected to at the district court is considered forfeited for purposes of appeal. See, e.g., State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005); State v. Blom, 682 N.W.2d 578, 614 (Minn. 2004). But here resolution of this question is controlled by our recent holding in State v. Osborne, 715 N.W.2d 436 (Minn. 2006). In Osborne, we concluded that a defendant's failure to object on Blakely grounds at the district court does not forfeit appellate review of an alleged Blakely error. Osborne, 715 N.W.2d at 446. Accordingly, we hold that Dettman did not forfeit appellate review of the alleged Blakely error in this case.
We now turn to the state's second argument--that no Blakely error occurred because Dettman admitted the facts used to enhance his sentence. The alleged Blakely error in this case presents a constitutional question that we review de novo. See State v. Barker, 705 N.W.2d 768, 771 (Minn. 2005).
From the Apprendi line of cases, it is clear that Dettman's sentence could not constitutionally have been enhanced, beyond the maximum sentence authorized by the facts established by his guilty plea, based on judicial findings of fact.*fn1 See Blakely, 542 U.S. at 303-05; State v. Shattuck, 704 N.W.2d 131, 142-43 (Minn. 2005). The district court's imposition of an upward departure was permissible only if the facts authorizing the departure were either found by a jury beyond a reasonable doubt or admitted by Dettman. See Booker, 543 U.S. at 244. Because it is undisputed that a jury did not find the aggravating factors used to enhance Dettman's sentence, the narrow issue before us is whether Dettman sufficiently admitted the facts authorizing the upward departure to satisfy the requirements of Blakely.
The state argues that Dettman admitted, both at his plea hearing and in police interrogation later incorporated into the complaint, facts supporting the upward departure, and therefore no Blakely error occurred. At his plea hearing, Dettman and his attorney had the following exchange:
Q: On May 12th or early May 13th did you place a phone call to a young woman with the initials L.L.B.?
Q: And you asked her to come over to your apartment to help her boyfriend who was in trouble, is that correct?
Q: She drove to your apartment and eventually came up to your ...