Opinion
No. A05-546.
Filed July 3, 2007.
Appeal from the District Court, Itasca County File No. K6-02-1097.
Lori Swanson, Attorney General, Kimberly Parker, Assistant Attorney General, St. Paul, MN; and John J. Muhar, Itasca County Attorney, Itasca County Courthouse, Grand Rapids, MN, (for respondent).
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Minneapolis, MN, (for appellant).
Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In September 2002, appellant Samuel Lyons pleaded guilty to aiding and abetting first-degree assault, waiving his right to appeal the conviction or sentence as part of the plea agreement. His time for appeal expired 90 days after his October 28, 2002 sentencing. After violating probation several times, his sentence was executed, and he filed an appeal on May 19, 2005, claiming that he is entitled to relief under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), arguing that his case was on direct review because he entered a plea agreement requiring him to waive his right to appeal. The appeal was stayed pending the Minnesota supreme court's decision in State v. Losh, 721 N.W.2d 886, 886 (Minn. 2006). Because Lyons's waiver could have been challenged, even on direct appeal, and because we decline to extend the line of cases to which Blakely may retroactively apply beyond the time when the right to direct review expires or is exhausted, we affirm.
FACTS
On the night of May 28, 2002, appellant Samuel J. Lyons and several other people were gathered together in Ball Club drinking alcohol. At some point in the evening, two men and one woman arrived to join Lyons's group. The woman indicated that M.S., one of the men in the group, had hit her in the face.
Later in the evening, Lyons and three male friends chased M.S., and two of the men tackled him. All four men started hitting M.S. One man picked up a stroller and hit him twice with it. The men stopped and started walking away, but then returned to hit and kick M.S. some more.
M.S. was treated at the Deer River Hospital for severe head trauma, and the doctors believed he would not survive the beatings. He was eventually taken to St. Mary's hospital in Duluth to undergo brain surgery and was later listed in critical condition. He did survive, and Lyons was apprehended and charged with first-degree felony assault, in violation of Minn. Stat. § 609.221, subd. 1 (2000). Witnesses told police that Lyons and two other men chased M.S., punched him, and kicked him repeatedly while he was on the ground. Lyons pleaded guilty to aiding and abetting first-degree assault, and admitted to hitting M.S. once or twice when he was lying on the ground, but stated that he was not involved when M.S. was hit with a stroller and that he did not participate when the other men continued to beat M.S. He also claimed that he had problems remembering the incident with any clarity because of the amount of alcohol he had consumed throughout the evening.
After pleading guilty to aiding and abetting first-degree assault, Lyons was sentenced to an upward durational departure of 172 months, and the court stayed execution of the sentence as a downward dispositional departure. Lyons had to waive his right to appeal the conviction or sentence as part of the plea agreement. Soon after he was sentenced, Lyons violated his probation numerous times. After several hearings, the district court vacated the stay and executed Lyons's original 172-month sentence.
DECISION
Retroactive Application of Blakely
Lyons first argues that his case is distinguishable from State v. Losh because he had to waive his right to an appeal as part of his plea agreement. In Losh, the supreme court affirmed this court's determination that a probation-revocation appeal is not "direct review" of a sentence for purposes of retroactivity analysis. State v. Losh, 721 N.W.2d 886, 895 (Minn. 2006). The supreme court also held that Minn. Stat. § 244.11, subd. 3 (2004), violates the separation-of-powers doctrine and is therefore unconstitutional. Id. at 892.
Lyons alleges that, whereas Losh failed to perfect a timely review, Lyons entered into a plea agreement that impermissibly required him to waive his right to review. He argues, therefore, that his case was pending at the time that Blakely was decided. The general rule is that Blakely, as a new rule of constitutional criminal procedure, is retroactively applicable to cases pending on direct review at the time Blakely was released, but not to cases then on collateral review or later challenged on collateral review. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). The supreme court in Losh held that a challenge to a sentence that is made in a probation-revocation appeal is not "direct review" for purposes of the retroactivity of Blakely. 721 N.W.2d at 894-95.
We also note the bright-line rule set forth by the Supreme Court in Teague v. Lane, drawing the line for retroactivity purposes when the right to direct review expires or is exhausted, precisely to avoid inconsistent results. See 489 U.S. 288, 302, 109 S. Ct. 1060, 1071 (1989) (noting that the previous standard led to inconsistent results). Lyons's appeal waiver, although it presents a reason why he would not have challenged his sentence duration on direct review, is not sufficient to justify deviation from the bright-line rule for a Blakely analysis.
Lyons argues that this case is more like State v. Beaty, 696 N.W.2d 406, 412-13 (Minn.App. 2005), in which we held that a defendant who received a stay of imposition, and, therefore, had no sentence duration to challenge, could raise a Blakely claim in a probation-revocation appeal, since his first opportunity to appeal did not occur until the stay of imposition was vacated.
In Beaty, this court noted that a defendant who receives a stay of imposition of sentence does not know what the duration of his sentence is, or whether an upward departure will be imposed, until his probation is revoked. Beaty, 696 N.W.2d at 410-11. This court held, therefore, that when there is a stay of imposition, "thereby precluding a challenge to the sentence duration on direct review," Blakely should apply retroactively to a later probation-revocation appeal in which the sentence is challenged. Id. at 411. The Beaty court distinguished the situation in Losh, in which there was a stay of execution that was later revoked, stating that, for purposes of Blakely retroactivity, "the difference between a stay of execution and a stay of imposition is a marked one." Id. at 411 n. 2. A defendant who receives a stay of execution has received a pronounced sentence duration that he could challenge on Blakely grounds, even if, as recognized by the supreme court, he may have little incentive to do so until later, when his probation is revoked. See State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987) (noting that defendant placed on probation may delay challenging durational departure because he planned on succeeding on probation).
Lyons's argument would have merit if his appeal waiver made it impossible for him to challenge his sentence on direct appeal. But such waivers may be challenged, even on direct appeal. See Spann v. State, 704 N.W.2d 486, 495 (Minn. 2005) (holding that defendant could not waive his right to appeal as part of a stipulation dismissing the appeal); State v. Newcombe, 412 N.W.2d 427, 430 (Minn.App. 1987) (holding that defendant could challenge guilty plea on direct appeal when grounds for the challenge were present in the record), review denied (Minn. Nov. 13, 1987). The waiver presented no such impossibility, as did the complete lack of a sentence duration in Beaty. Lyons cites no authority that his plea agreement is impermissible, and if it were, he was free to file an appeal or a postconviction petition challenging the agreement. We also note that Lyons's appeal waiver constituted only a reason not to challenge the sentence duration on direct review and that Lyons agreed to waive an appeal in order to receive the benefit of a downward dispositional departure. There is a difference between not having a sentence to challenge and making an agreement that provides a disincentive to do so.
Lyons also claims he had no opportunity to appeal until the district court executed his sentence. However, he cites Spahn to challenge the enforceability of his sentence, and Spahn arose in the context of a waiver of the defendant's right to an appeal after a conviction, indicating that Lyons also could have directly challenged the waiver. 704 N.W.2d at 488. Lyons chose to accept the plea agreement and declined to challenge its validity on direct review. Although the agreement provided a strong disincentive to not appeal until after his probation was revoked, it was not impossible for him to challenge the sentence on direct review, and, therefore, we will not now expand the retroactivity rules of Blakely to cases in which a plea agreement prohibits a direct appeal.
Insufficient evidence to support particular-cruelty finding
Lyons also argues that there is insufficient evidence to support the aggravating factor of particular cruelty, and thus the upward durational departure cannot be imposed. He alleges that the particular-cruelty elements alleged by the state are coextensive with the elements of first-degree assault. The decision to depart from the presumptive sentence rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). And if the record supports findings that substantial and compelling reasons exist, this court will not modify the departure unless it has a "strong feeling" that the sentence is disproportional to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn.App. 1984)
The court accepted Lyons's plea agreement that allowed a downward dispositional departure and a double upward durational departure from the guidelines. Lyons pleaded guilty to aiding and abetting first-degree assault; therefore, the acts of the others who had aided were attributable to him for sentencing purposes. See Minn. Stat. § 609.05, subd. 1 (2000) (establishing criminal liability if a defendant aids another in committing a crime); see also State v. Gelhar, 392 N.W.2d 609, 612 (Minn.App. 1986) (upholding upward departure based on the acts of others defendant had aided and abetted in a sexual assault). The record shows that M.S. was assaulted numerous times by various men throughout the course of the evening. Periodic and incremental assaults culminated in Lyons and his friend chasing M.S. down, tackling him, and punching and kicking him while he lay defenseless on the ground. One of the men picked M.S. up from under his arms and another man kicked him in the face approximately five to six times. The men initially stopped assaulting M.S., but then resumed the assault and dragged M.S.'s body out to a road and left him on the curb. M.S. was hit at least twice with a baby stroller, and one of the men also hit him in the head with a rum bottle. After this repeated and brutal attack by the four men, M.S. was left by the side of the road. No one in the group called an ambulance or did anything to alleviate M.S.'s injuries, which were so severe that the doctors initially believed that M.S. would not survive. The court noted that it was a "savage attack" that occurred over a "long course of time." Therefore, the district court did not abuse its discretion in accepting a plea agreement that involved an upward durational departure because the record supports a finding of particular cruelty by Lyons, as he aided and abetted others in assaulting M.S., and we affirm that determination.