State v. Rourke

¶1(dissenting).

¶2I respectfully dissent and do so for three reasons. First, the Minnesota Sentencing Guidelines response to Blakely and our case law recognize that aggravating factors, including particular cruelty, are facts that must be found by a jury. Second, a finding of particular cruelty exposes the defendant to a sentence exceeding the maximum authorized by the jury’s verdict of guilty and therefore must be found by a jury. Third, I conclude that due-process vagueness concerns apply to sentencing factors. Therefore, I would remand to the district court for a new sentencing trial.

¶3The post -Blakely changes in the sentencing guidelines and pattern jury instructions require that aggravating sentencing factors such as particular cruelty be submitted to a jury because they are facts. The guidelines now require a jury trial on the “additional facts that support the departure.” Minn. Sent. Guidelines II.D. A jury must determine whether “aggravating factors” are proved beyond a reasonable doubt. Minn. Sent. Guidelines cmt. II.D.01. Additionally, the pattern jury instructions direct the jury to determine the existence of “(an)(any) aggravating factor(s).” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 8.01 (5th ed. Supp. 2009).

¶4Our -post-Blakely case law shows that we understand that aggravating factors are factual in nature. E.g., State v. Chauvin, 723 N.W.2d 20, 24 (Minn.2006) (stating that impaneling a jury was “necessary ... to vindicate [defendant’s] Sixth Amendment right to a jury determination of aggravating sentencing factors”); State v. Thompson, 720 N.W.2d 820, 827 (Minn.2006) (stating that after waiver of jury, the district court “engaged in judicial fact-finding and found several aggravating factors”); State v. Allen, 706 N.W.2d 40, 46 (Minn.2005) (stating that use of an offender-related factor or its similarity to traditional sentencing judgments did not insulate the departure from the Appren-di/Blakely rule).

¶5In his dissent in Thompson, Justice Sam Hanson articulated the dynamics of a sentencing departure, explaining that there are two functions: the fact-finding function and the discretionary-departure function:

When we assumed that the district court could perform the fact finding function, we had no occasion to reflect on the additional discretion that the district court possesses to determine whether and precisely how to depart after finding that there were aggravating facts. Now that Blakely has clarified that the fact finding function must be done by the jury, unless waived by the defendant, the other function of the district court, to exercise discretion in determining whether and how to depart, comes into clearer focus.

In other words, even if a sentencing jury is used and it finds aggravating facts, the decisions to depart and by how much to depart are not automatic, but call upon the district court to exercise discretion, based on the court’s broader experience in sentencing and ability to compare the facts of the current case, as found by the jury, with the facts of other similar cases. Of course, the district court has no discretion to depart unless *926the jury finds aggravating facts, but conversely the district court has discretion not to depart, or to decide precisely how much to depart, where the jury finds aggravating facts.

¶6720 N.W.2d at 832 (Hanson, J., dissenting).

¶7Thompsoninvolved the “major economic offense” aggravating factor, a factor which must be supported by a minimum of two other qualified aggravating factors. Minn. Sent. Guidelines II.D.2.b(4). After the defendant waived a sentencing jury, the district court found that the defendant had committed a major economic offense. Justice Hanson clarified that “the finding of a major economic offense, whether made by the court or a jury, does not end the matter, and the district court must then exercise discretion to decide whether to depart and, if so, by how much.” Thompson, 720 N.W.2d at 833 (Hanson, J., dissenting).

¶8Fundamentally, aggravating factors are facts. The United States 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.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The statutory maximum “is 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 v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis omitted). The majority’s characterization of an aggravating factor as a “reason” cannot exempt an upward sentencing departure from being subject to the constitutional protections articulated in Blakely. See id. at 299-300, 304-05, 124 S.Ct. 2531 (invalidating Blakely’s sentence which was based on the judge’s finding of deliberate cruelty).

¶9A second point of my disagreement with the majority is my conclusion that the particular cruelty factor must be submitted to a jury. We have held that gratuitous infliction of physical pain qualifies as “particular cruelty.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981). Upward sentencing departures have also been justified by gratuitous infliction of emotional pain such as by threats, State v. Norton, 328 N.W.2d 142, 146-47 (Minn.1982), or degradation of the victim, State v. Cox, 343 N.W.2d 641, 645 (Minn.1984). We have said that if there is an upward departure, the defendant’s conduct must be significantly more serious “‘than that typically involved in the commission of the crime in question.’ ” State v. Leja, 684 N.W.2d 442, 450 (Minn.2004) (plurality opinion) (quoting Cox, 343 N.W.2d at 643). Further, facts already taken into account by the legislature in determining the degree or seriousness of the crime in question are inappropriate bases for an upward departure. E.g., Taylor v. State, 670 N.W.2d 584, 589 (Minn.2003).

¶10In summary, by our case law we have defined particular cruelty as the gratuitous infliction of physical, psychological, or emotional pain, which goes beyond what is inherent in the statutory elements of the crime at issue and is significantly more serious than that typically involved in the commission of that crime. This definition consists of two basic components: gratuity and typicality. Gratuity is fundamentally a factual issue that is well within the jury’s fact-finding function; but typicality is more difficult to peg and appears to be a mixed issue of fact and law.

¶11Typicality is the core issue in determining whether an upward departure is warranted. State v. Thao, 649 N.W.2d 414, 421 (Minn.2002) (stating that the “core is*927sue” for an upward departure “is whether the defendant’s conduct was significantly more ... serious than that typically involved in the commission of the crime”). Typicality review necessarily requires (1) an examination of whether the conduct exceeded the elements of the offense and (2) a comparison and weighing of the defendant’s conduct in committing the offense with conduct usually associated with the commission of that offense. E.g., Holmes v. State, 437 N.W.2d 58, 59-60 (Minn.1989) (holding that upward departure was unjustified where defendant’s conduct in committing intentional murder “was not significantly different from that typically involved in the commission of that crime”).

¶12We addressed an analogous situation in State v. Henderson, a case involving the career-offender factor, a crime which requires a determination of whether the offender committed the current felony “as part of a ‘pattern of criminal conduct.’ ” 706 N.W.2d 758, 760 (Minn.2005) (quoting Minn.Stat. § 609.1095, subd. 4 (2004)). The specific issue in Henderson was whether a pattern of criminal conduct presented a question of law or required a finding by a jury. Prior case law had defined the standard to require that the current and prior crimes be similar in “motive, purpose, results, participants, victims or other shared characteristics.” Id. at 761 (citation omitted) (internal quotation marks omitted). We concluded that such a finding “involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar.” Id. at 762 (citation omitted) (internal quotation marks omitted). Based on this conclusion, we held that additional findings made by the sentencing judge violated Blakely. Id. Similar to the career-offender factor, I conclude that a finding of particular cruelty involves a comparison of defendant’s conduct with conduct usually associated with the offense — weighing the degree of seriousness of the defendant’s conduct — and therefore must be made by a jury.

¶13In United States v. Booker, the Supreme Court said, “Any 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.” 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (emphasis added). It does not matter how the required finding is characterized. “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. Because a finding of particular cruelty could increase a sentence beyond the maximum allowed based on facts in a plea or authorized by jury verdict, I conclude that particular cruelty must be proved to a jury. See Cunningham v. California, 549 U.S. 270, 283, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (discussing Blakely, the Court stated that “[t]he judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment jury-trial guarantee.”).

¶14An obvious concern is that jurors lack the experience of a judge, who can use similar cases for comparison, and that this lack of expertise by the jury will undermine the sentencing guidelines goal of uniformity and proportionality. But “juror performance in sentencing fact-finding might well be improved by providing jurors a set of sample circumstances to which they can compare a given case.” J.J. Prescott & Sonja Starr, Improving Criminal Jury Decision Making After the *928Blakely Revolution, 2006 U. Ill. L.Rev. 301, 328. Prescott and Starr suggest the use of fictional examples, loosely based on real cases, of the same offense committed in different ways. Id.at 329 nn. 144 & 145. They also suggest that the examples be chosen by the sentencing commission and standardized to alleviate concern over manipulation that could bias a jury. Id.at 329 n. 145. This approach, however, might prove daunting or even in some respects inconsistent with Minnesota’s conviction-offense system and departure criteria. See Richard S. Frase, Blakely in Minnesota, Two Years Out: Guidelines Sentencing Is Alive and Well, 4 Ohio St. J.Crim. L. 73, 74 (2006) (explaining the design of the guidelines). Consequently, I would commend the development of appropriate departure criteria for particular cruelty to the guidelines commission.

¶15Finally, I disagree with the majority’s conclusion that the vagueness doctrine has no application to sentencing factors that must be found by a jury. “A statute can be impermissibly vague ... if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Impermissibly vague laws violate the Due Process Clause of the Fifth Amendment for federal law or the Fourteenth Amendment for state law.1 The vagueness doctrine is not limited to statutes defining elements of substantive crimes. “So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.” United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); see also James v. United States, 550 U.S. 192, 230-31, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J„ dissenting, joined by Stevens and Ginsburg, JJ.) (concluding that sentencing enhancement factor in Armed Career Criminal Act was unconstitutionally vague).

¶16The majority’s reliance on State v. Givens, 332 N.W.2d 187 (1983), to preclude vagueness challenges to aggravating sentencing factors that must be found by a jury is misplaced. In Givens, defendant’s counsel submitted a 122-page brief raising numerous pretrial, trial, and sentencing issues, including whether “the standards for departure from the guidelines are so vague and overbroad as to be unconstitutional both on their face and as applied.” 332 N.W.2d at 189. In support of those claims, defendant’s counsel relied on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Both Godfreyand Greggare Eighth Amendment death penalty cases. A review of the Givensbriefs indicates that neither party raised or briefed whether the vagueness doctrine applied to sentencing factors in the first instance. We held that the sentencing guidelines were not unconstitutionally vague, explaining that “application of vagueness argument to more routine sentencing decisions — those not including the death sentence — is not contemplated by the Greggand Godfreydecisions. Defendant’s claim of vagueness of the guidelines, either on their face or as applied, is misplaced in this context.” Givens, 332 N.W.2d at 190. As I read Givens, application of the due-process vagueness doctrine to either “more routine” sentencing decisions or pre-Blakely-eva judicial sentencing decisions are both open questions of law in Minnesota.

¶17*929I doubt that there can be any dispute that the particular cruelty factor is vague. “It is not enough to instruct the jury in the bare terras of an aggravating circumstance that is unconstitutionally vague on its face.” Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Nevertheless, an aggravating factor that is vague may be applied if state courts have adopted an acceptable limiting definition. Id. at 654-55, 110 S.Ct. 3047.

¶18In the wake of Blakely, other states with cruelty sentencing factors have drafted pattern jury instructions derived from judicial definitions. E.g., 11A Wash. Sup.Ct. Comm, on Jury Instructions, Wash. Practice, Pattern Jury Instructions, Crim. WPIC 300.10 (3d ed. 2008) (‘“Deliberate cruelty’ means gratuitous violence or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime [or is normally associated with the commission of the crime.”]); Alaska Sup.Ct. Comm, on Jury Instructions, Alaska Pattern Jury Instructions, Crim. 1.56E (“‘Deliberate cruelty’ means conduct that involves gratuitously inflicted torture or violence. Deliberate cruelty does not include conduct that is merely a direct means to accomplish the crime. Deliberate cruelty occurs when pain — whether physical, psychological, or emotional — is inflicted ‘gratuitously’ or as an end in itself.”). Given that our prior case law has defined particular cruelty, I would remand this matter to the district court with the directive that particular cruelty be defined for the jury in a jury instruction and then submitted to the jury unless Rourke, on the record, waives submission to the jury or stipulates to some other process.2