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State of Minnesota, Respondent, vs. James A. Allen, Appellant. A04-127, Supreme Court, November 23, 2005.

STATE OF MINNESOTA IN SUPREME COURT A04-127

Court of Appeals Page, J. Concurring in part and dissenting in part, Anderson, G. Barry, J. State of Minnesota, Respondent, vs. Filed: November 23, 2005 Office of Appellate Courts James A. Allen, Appellant.

SYLLABUS 1. The imposition of an upward dispositional departure under the Minnesota Sentencing Guidelines,

based on the district court's finding that appellant was unamenable to probation, violated appellant's Sixth Amendment right to a jury trial. 2. The district court did not violate the Sixth Amendment by assigning appellant a custody-status

point in determining his presumptive sentence under the Sentencing Guidelines. Reversed and remanded. Heard, considered, and decided by the court en banc. OPINION PAGE, Justice. In State v. Shattuck, 704 N.W.2d 131 (Minn. 2005), we held that the imposition of an upward durational departure from the presumptive sentence prescribed by the Minnesota Sentencing Guidelines, based solely on facts found by the judge, violates the Sixth Amendment right to trial by jury under Blakely v. Washington, 542 U.S. 296 (2004). In this case, we are asked to decide whether an upward dispositional departure executing the

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State of Minnesota, Respondent, vs. James A. Allen, Appellant. A04-127, Supreme Court, November 23, 2005.

presumptive stayed sentence under the guidelines, based on judicially found facts without the aid of a jury, is also unconstitutional under Blakely. We are further asked to decide whether the Sixth Amendment jury-trial guarantee prohibits the district court from assigning a custody-status point in determining the defendant's criminal history score under the guidelines. We answer the first question in the affirmative and the second one in the negative. We therefore reverse the decision of the court of appeals and remand to the district court for resentencing. On July 19, 2003, Cindy Campbell telephoned the Hibbing police to report that James Allen had shown up at a residence where Campbell was visiting, and that she had fled into the bedroom. Campbell had previously reported having problems with Allen. When the responding officer, Captain Gielen, arrived, he saw a grey Ford Bronco in the driveway. Captain Gielen knew that Allen drove such a vehicle and that Allen's driver's license had been cancelled. The residence was that of Allen's mother, who let Captain Gielen in. Allen was sitting in the kitchen. He told the officer he had not done anything, and that he had driven over to take a shower without knowing that Campbell was there. Captain Gielen detected a strong odor of alcohol on Allen's breath and noticed that his eyes were watery and bloodshot and that he was acting agitated. When Captain Gielen and another officer escorted Allen outside, Allen's brother drove up and asked if he could take Allen with him. Captain Gielen said no. Allen then asked if he could lock up his vehicle, and taking keys from his pocket, locked the doors of the Bronco. The officers then placed him under arrest. At the police station, Allen was given the implied-consent advisory and refused to provide a breath test. The reason he gave for refusing was that he had just been sitting at his mother's kitchen table. Allen repeatedly said he had not been driving and that his brother had given him a ride to his mother's house. Allen's brother later informed Captain Gielen that he had last seen Allen several hours before he drove over to his mother's house to pick Allen up. Allen was charged with first-degree test refusal and first-degree driving while under the influence of alcohol, both felonies. Minn. Stat.

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Minnesota Law