State v. McFee

721 N.W.2d 607

STATE of Minnesota, Respondent, v. Richard McFEE, Appellant.

No. A05-283.

Supreme Court of Minnesota.

September 21, 2006.

Benjamin J. Butler, Asst. State Public Defender, Minneapolis, MN, for appellant.

Mike Hatch, Atty. General, Susan Gaertner, Ramsey County Atty., Mitchell L. Rothman, Asst. County Atty., St. Paul, MN, for respondents.

Heard, considered, and decided by the court en banc.

OPINION

GILDEA, Justice.

The question presented in this case is whether, consistent with United States Supreme Court precedent, juvenile adjudications can be used in calculating a defendant's criminal history score when the fact of those adjudications has been determined by a judge, not a jury. The Supreme Court has said that, "`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The court of appeals held that juvenile adjudications were properly included in a defendant's criminal history score when determined by a judge. We affirm.

Richard Angelo McFee pleaded guilty to one count of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004). The charge arose from McFee's threats to kill N.M., N.M.'s baby, and anyone residing in N.M.'s home. N.M. reported the threats to Maplewood police on June 6, 2004, and McFee was subsequently arrested and charged.¹

The Ramsey County District Court accepted McFee's plea and ordered a presentence investigation (PSI). The PSI determined that McFee had six criminal history points, consisting of three felony points, one misdemeanor/gross misdemeanor point, one custody-status point, and one point for prior juvenile adjudications. The point attributed to the juvenile adjudications was based on McFee's adjudication as delinquent in three separate matters.²

Following completion of the PSI, the district court conducted a sentencing hearing. McFee claimed at the hearing that his Sixth Amendment right to trial by jury was violated by the use of a custody-status point and his prior juvenile record in calculating his criminal history score. McFee moved to amend the sentencing worksheet to exclude the custody-status point and the juvenile point from his criminal history score because those determinations did not arise from a jury trial. Following a continuance for briefing, the district court denied McFee's motion.

Using a criminal history score of six, the district court sentenced McFee to 30 months in prison, the presumptive sentence for someone with six criminal history points who commits a severity level IV crime, such as terroristic threats. The court of appeals affirmed and we granted McFee's petition for review.³

McFee contends that judicial fact finding that he was adjudicated delinquent violates his Sixth Amendment right as defined in Apprendi and refined in Blakely. The state contends that calculations of criminal history scores do not fall within the Apprendi/Blakely rule. We employ a de novo standard of review when interpreting the constitution. State v. Shattuck, 704 N.W.2d 131, 135 (Minn.2005).

I.

The Apprendi/Blakely rule requires that facts used to increase a defendant's sentence beyond the statutory maximum provided for the offense must be found by a jury or admitted by the defendant. Blakely, 542 U.S. at 301, 303, 124 S.Ct. 2531. Prior convictions are a well-recognized exception to the rule. See id. at 301, 124 S.Ct. 2531. McFee claims that juvenile adjudications do not fall within this exception. Because the scope of the prior conviction exception is the issue presented in this case, we turn first to the development of the exception.

The prior conviction exception was first recognized in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).⁴ The defendant in Almendarez-Torres was charged under a federal statute, 8 U.S.C. § 1326 (1988), that made it a crime for "any alien" to return to the United States after deportation. Almendarez-Torres, 523 U.S. at 226, 118 S.Ct. 1219. The statute further provided that if the defendant had been deported subsequent to a conviction for commission of an aggravated felony, the defendant could be sentenced to up to 20 years in prison. Id. The defendant in Almendarez-Torres pleaded guilty, and at sentencing argued that he was not subject to the 20-year maximum because his indictment did not allege that he had been deported for commission of an aggravated felony. Id. at 227, 118 S.Ct. 1219.

The issue before the Court in Almendarez-Torres was whether the deportation based on the aggravated felony provision in the statute "defines a separate crime or simply authorizes an enhanced penalty." Id. at 226, 118 S.Ct. 1219. If the prior aggravated felony conviction was an element of the crime, it would have had to have been charged in the indictment (and proven beyond a reasonable doubt to the jury at trial). Id. The Court held that the fact of the prior aggravated felony conviction was a sentencing enhancement and not an element of the crime. Id. at 235, 118 S.Ct. 1219. The Court based this conclusion on its determination "that the relevant statutory subject matter is recidivism. That subject matter—prior commission of a serious crime—is as typical a sentencing factor as one might imagine." Id. at 230, 118 S.Ct. 1219; see also id. at 243, 118 S.Ct. 1219 ("[T]he sentencing factor at issue here — recidivism — is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence."); id. at 244, 118 S.Ct. 1219 ("[R]ecidivism `does not relate to the commission of the offense * * *.'").⁵

In Jones v. United States, the Court referred to the "repeated emphasis on the distinctive significance of recidivism" in Almendarez-Torres. 526 U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Such emphasis "leaves no question that the Court regarded [recidivism] as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing." Id. As "one basis" for this distinction, the Court noted that "unlike virtually any other consideration used to enlarge the possible penalty for an offense, * * * a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." Id.

In Apprendi v. New Jersey, the Court determined that it "need not revisit" Almendarez-Torres, characterizing it as "a narrow exception to the general rule" the Court laid out in Apprendi. 530 U.S. at 490, 120 S.Ct. 2348. The Apprendi Court held that the Sixth Amendment to the United States Constitution requires that "[o] ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. (emphasis added). The Court also noted that "the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing punishment beyond the maximum of the statutory range" were "mitigated" in Almendarez-Torres because "procedural safeguards attached to any `fact' of prior conviction," and because the defendant in that case did not contest the accuracy of the "fact" of his prior convictions. Apprendi, 530 U.S. at 488, 120 S.Ct. 2348.

In Blakely v. Washington, the Court did not directly address the prior conviction exception to the Apprendi rule. The Court simply noted that the case before it "require[d] [it] to apply the rule * * * expressed in [Apprendi]." Blakely, 542 U.S. at 301, 124 S.Ct. 2531.

Since Blakely we have had occasion to interpret and apply the prior conviction exception in three cases. In Allen we held that a jury was not constitutionally required to find the fact of a defendant's probationary status. 706 N.W.2d at 48. We based our holding on our "belie[f] that the fact a defendant is on probation at the time of the current offense arises from, and is so essentially analogous to, the fact of a prior conviction, that constitutional considerations do not require it to be determined by a jury." Id. In addition, we noted that "[l]ike the fact or character of a prior conviction, a defendant's custody status can be determined by reviewing court records relating to that conviction." Id.

We also examined the prior conviction exception in State v. Leake, where we noted that, "after Blakely, the prior conviction exception recognized in Apprendi retains vitality and it is constitutional for a defendant's sentence to be increased based on a prior conviction without submitting the fact of the conviction to the jury." 699 N.W.2d 312, 323 (Minn.2005).

Finally, we examined the prior conviction exception in State v. Henderson, 706 N.W.2d 758 (Minn.2005). In that case we examined sentencing under Minnesota's career offender statute, Minn.Stat. § 609.1095, subd. 4 (2004), and the question was whether this statute's provision requiring a finding that the current offense "was committed as part of a pattern of criminal conduct" was subject to judicial fact finding. Henderson, 706 N.W.2d at 760. We held that the statute required more than simply verifying the fact of prior convictions. Id. at 762. In addition to the fact of the convictions, a qualitative analysis was required to satisfy the "pattern" component of the statute. Id. Because this type of analysis was necessary, we held that the prior conviction exception did not apply and that the Apprendi/Blakely rule required the jury to make findings on this component. Henderson, 706 N.W.2d at 762.

In sum, the cases construing the prior conviction exception from the Supreme Court and from our court hold that the fact of...