author: PAGE, Justice. ANDERSON, G. BARRY, Justice

text:
    STATE of Minnesota, Respondent, v. James A. ALLEN, Appellant.
    No. A04-127.
    Supreme Court of Minnesota.
    Nov. 23, 2005.

      John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, Alan L. Mitchell, St. Louis County Attorney, Jeff Vlatkovich, Assistant County Attorney, Duluth, MN, for Respondent.
   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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In this case, we are asked to decide whether an upward dispositional departure executing the 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 can-celled. 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. §§ 169A.20, subds. 1(1), 2; 169A.24 (2004). He was also charged with the gross misdemeanor offense of driving after cancellation of his license. Minn. Stat. § 171.24, subd. 5 (2004). Allen entered a negotiated plea of guilty to first-degree test refusal in exchange for dismissal of the other charges. The plea agreement left the sentence up to the district court.

The district court determined that Allen had a custody-status point because he was on probation when he committed the current offense. See Minn. Sent. Guidelines II.B.2.a. As a result, Allen’s presumptive sentence was 42 months, stayed. See Minn. Sent. Guidelines IV. Based on Allen’s numerous prior alcohol-related convictions and his history of absconding from probation, the court found that Allen was not amenable to probation and sentenced him to an executed 42-month prison term, an upward dispositional departure from the presumptive stayed sentence.

Allen appealed, arguing that the district court abused its discretion in imposing the dispositional departure. While the appeal was pending, the United States Supreme Court issued its decision in Blakely. The court of appeals affirmed, concluding that ample evidence supported the district court’s finding of unamenability to probation. State v. Allen, No. A04-127, 2004 WL 1925881 at *3 (Minn.App. Aug.31, 2004). The court declined to address the implications of Blakely, noting that the issue had not been briefed and stating that “Blakely does not appear applicable” to a dispositional departure based on unamena-bility to probation. Id. at *1 n. 1.

I.

The state argues that Allen forfeited consideration of his Blakely claim on appeal by failing to raise an Apprendi objection in the district court, and that the claim is not reviewable under the plain-error doctrine. Ordinarily, we will not decide issues that are raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). We have the discretion to consider an unobjected-to error if it is a plain error or defect affecting substantial rights. Minn. R.Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). At our discretion, we may also address such issues when the interests of justice require their consideration and doing so would not work an unfair surprise on a party. Sorenson, 441 N.W.2d at 457; see Minn. R.Crim. P. 28.02, subd. 11; 29.04, subd. 11.

There are recognized circumstances in which the defendant’s failure to raise a sentencing issue at the time sentence is imposed does not waive consideration of the issue on later review. See Minn.Stat. § 590.01, subd. 1 (2004) (providing for postconviction sentencing remedy); Minn. R.Crim. P. 27.03, subd. 9 (allowing district court to correct unlawful sentence at any time); State v. Fields, 416 N.W.2d 734, 736 (Minn.1987) (allowing challenge to dura-tional sentencing departure following revocation of stayed sentence); State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974) (holding that statutory prohibition against double punishment for offenses committed in single behavioral incident cannot be waived). In other circumstances, we have held that by failing to object at sentencing, the defendant forfeited the right to consideration of a sentencing issue on appeal. State v. Lopez-Solis, 589 N.W.2d 290, 293 n. 3 (Minn.1999) (reasonableness of prosecution costs); Blondheim v. State, 573 N.W.2d 368, 368-69 (Minn.1998) (mandatory minimum fine); see also State v. Leja, 684 N.W.2d 442, 447 n. 2 (plurality opinion), 457 n. 3 (Blatz, C.J., dissenting) (2004) (together holding that failure to raise Apprendi/Blakely challenge to sentence on appeal waived issue).

In this case, we choose to address Allen’s claim in the interests of justice. We do so because of the importance of determining Blakely’s applicability to upward dispositional departures and the assignment of a custody-status point, issues that affect numerous cases statewide. We also note that the Blakely decision was issued after briefing had been completed in the court of appeals, and Allen immediately notified that court of the decision. For Allen to have objected on Apprendi grounds at sentencing would have been of little avail; before Blakely was decided, our understanding of Apprendi was that the “statutory maximum” penalty authorized by the jury’s verdict was the maximum sentence allowed by the statute defining the offense. Shattuck, 704 N.W.2d at 136-37; State v. Houston, 702 N.W.2d 268, 271 (Minn.2005); see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

II.

We turn, then, to the question whether the district court could constitutionally impose an upward dispositional departure, that is, execute Allen’s presumptive stayed sentence, based on its determination that Allen is unamenable to probation. Allen argues that unamenability to probation is a “fact” for Apprendi purposes, and that changing sentence disposition from probation to prison constitutes the kind of increase in punishment contemplated by Apprendi and its progeny as unconstitutional unless based on facts found by a jury or admitted by the defendant. The state contends that Blakely does not apply to dispositional departures under the Sentencing Guidelines. The state argues that: (1) the constitutional rule is concerned with the length of sentence, and a dispositional departure merely alters its mode of service; and (2) the rule requires the state to prove facts relating to the offense sought to be punished, not facts relating to the offender. The state also relies on State v. Hanf, in which the court of appeals held that dispo-sitonal departures based on offender-related characteristics do not violate Blakely because they are similar to traditional sentencing judgments made by judges in indeterminate-sentencing schemes, which under Blakely do not infringe on the province of the jury. 687 N.W.2d 659, 664 (Minn.App.2004) (citing Blakely, 542 U.S. at 309, 124 S.Ct. 2531), rev. granted, (Minn. Dec. 14, 2004).

We first address the argument that Blakely does not apply to dispositional departures. Whether the constitutional rule is limited in application to increases in sentence duration, as the state contends, turns on whether an upward dispositional departure “increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

Minnesota Statutes § 609.135, subdivision 1(a) (2004), authorizes the court, with certain exceptions not relevant here, to stay imposition or execution of a sentence. This provision was enacted as part of the Criminal Code of 1963, long before the creation of the Sentencing Guidelines. Act of May 17, 1963, ch. 753, art. I, § 609.135, 1963 Minn. Laws 1185,1195.

The presumptive sentences set out in the Sentencing Guidelines Grid are presumptive with respect to both duration “and whether imposition or execution of the felony sentence should be stayed.” Minn. Sent. Guidelines II.G. For cases below and to the left of a bold line on the grid, the sentence is presumptively stayed unless the conviction carries a mandatory minimum sentence. Minn. Sent. Guidelines II.C, IV. Section II.D. of the guidelines states that the sentencing judge “shall utilize the presumptive sentence” unless the case involves substantial and compelling circumstances. We held in Shattuck that under Minnesota’s guidelines scheme, “imposition of the presumptive sentence is mandatory absent additional findings.” Shattuck, 704 N.W.2d at 141. Thus, under this scheme, a judge’s discretion to stay or execute a sentence is far more constrained than under an indeterminate-sentencing scheme. Even under an indeterminate scheme, the judge’s discretion in imposing sentence is bound by the range of punishment authorized by the legislature. Apprendi, 530 U.S. at 481, 120 S.Ct. 2348. Under Minnesota’s determinate sentencing guidelines scheme, the judge must impose a presumptively stayed sentence unless substantial and compelling circumstances are present. Minn. Sent. Guidelines II.D.

In Blakely, the Court held that for Ap-prendi purposes 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, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). Thus, the constitutional rule that has emerged from 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.-, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) (emphasis added). In the present case, the maximum sentence authorized by Allen’s plea of guilty was a 42-month prison term, with execution stayed. Shattuck, 704 N.W.2d at 140-41; Minn. Sent. Guidelines IV. Based on the structure of the. Sentencing Guidelines, sentence disposition — here, a stay — is as much an element of the presumptive sentence as sentence duration.

We cannot agree with the argument that a stayed sentence is merely an alternative mode of serving a prison sentence and therefore is not subject to Blakely. A defendant whose felony sentence is stayed is subject to supervision for a period of years, and to incarceration in a local facility for no more than one year. Minn.Stat. § 609.135, subds. 1, 2(a), 4 (2004). By contrast, a defendant whose sentence is executed is incarcerated in a state corree-tional facility for not less than two-thirds of the sentence duration' — -in this case, nearly 2-1/2 years — -with the remainder on supervised release. Minn.Stat. §§ 244.01, subd. 8; 244.05, subd. lb(a); 244.101, subd. 1 (2004). The additional loss of liberty that results from execution of a presumptively stayed sentence, it is plain, exceeds the maximum sentence authorized by a plea of guilty or jury verdict, and violates the constitutional rule.

This conclusion finds support in Supreme Court case law as well. In Ring v. Arizona, the Court held that the Sixth Amendment jury-trial right encompasses both the fact-finding necessary to durationally increase a sentence and the fact-finding necessary to impose the death penalty. 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). While there is “no doubt that ‘[djeath is different,’ ” id. at 605-06, 122 S.Ct. 2428 (citation omitted), imposition of the death penalty rather than life imprisonment and execution of a presumptively stayed sentence have a common thread: both constitute additional punishment that is not authorized by the facts established by the guilty plea or verdict. Moreover, the Supreme Court in Apprendi specifically endorsed a statement of the constitutional rule that it is for the jury to make “the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)) (emphasis added).

Upward dispositional departures under the guidelines may be based on either offender- or offense-related aggravating factors. State v. Chaklos, 528 N.W.2d 225, 228 (Minn.1995). Recognizing that the list of aggravating and mitigating factors in Minn. Sent. Guidelines II.D.2 is nonexclusive, we have held that when departing dispositionally, the district court can focus more on the defendant as an individual and whether the presumptive sentence would be best for the defendant and for society. State v. Heywood, 338 N.W.2d 243, 244 (Minn.1983); State v. Wright, 310 N.W.2d 461, 462 (Minn.1981). Thus, a defendant’s particular unamenability to probation may be used to justify an upward dispositional departure. State v. Park, 305 N.W.2d 775, 776 (Minn.1981); see also Chaklos, 528 N.W.2d at 228.

We do not believe that the use of an offender-related factor to depart from the presumptive sentence, or its similarity to factors considered under Minnesota’s former indeterminate-sentencing scheme, insulates the departure from the constitutional rule first enunciated in Apprendi. The rule applies to “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum.” Booker, 125 S.Ct. at 756 (emphasis added); see Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348); Ring, 536 U.S. at 589, 122 S.Ct. 2428 (holding that capital defendants “are entitled to jury determination of any fact on which the legislature conditions an increase in maximum punishment”); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Although each of these cases involved enhanced sentences based on offense-related factors, the Court did not limit the rule to those factors. Additionally, with specific reference to the nature of an aggravated sentencing factor, the Court has stressed that “the relevant inquiry is not one 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 (footnote omitted). We conclude, therefore, that the nature of the factor the district court uses to depart from the presumptive sentence is not determinative of whether the constitutional rule applies.

We hold that when the district court found that Allen was unamenable to probation, and on that basis executed his presumptively stayed sentence, it violated Allen’s Sixth Amendment right to have a jury make that determination using a reasonable-doubt standard. We further hold that because Minn. Sent. Guidelines II.D authorizes the district court to make such an unconstitutional upward dispositional departure upon finding an aggravating factor without the aid of a jury, that provision is unconstitutional as applied.

We therefore reverse the imposition of the upward dispositional sentencing departure and remand to the district court for resentencing in accordance with this opinion.

III.

Allen also claims that the assignment of a custody-status point in calculating his criminal history score violates Blakely. Allen argues that the determination that he was on probation when he committed the current offense does not come within the prior-conviction exception to the constitutional rule.

A defendant’s criminal history score is one of the axes on the Sentencing Guidelines Grid that determines the presumptive sentence. Minn. Sent. Guidelines II.B, IV. It is comprised of the defendant’s prior convictions, applicable juvenile record, and custody status at the time of the current offense. Minn. Sent. Guidelines II.B. A custody-status point is assigned if the defendant was on probation or another specified form of release when he or she committed the current offense. Minn. Sent. Guidelines II.B.2.

The primary reason for excluding a prior conviction from the constitutional rule is that the prior conviction itself has been established by procedures that satisfy constitutional jury-trial and reasonable-doubt guarantees. See Apprendi, 530 U.S. at 488, 120 S.Ct. 2348; Jones, 526 U.S. at 249, 119 S.Ct. 1215. The relevant fact here — Allen’s probation status — flowed directly from the sentence for his prior conviction. We believe 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. See People v. George, 18 Cal. Rptr.3d 651, 656 (Cal.App. 4th Dist.2004), remanded on other grounds, 34 Cal. Rptr.3d 193,119 P.3d 959 (Cal.2005); State v. Brooks, 690 N.W.2d 160, 163 (Minn.App. 2004), rev. granted (Minn. Mar. 15, 2005).

In Shattuck, we held that for felonies other than first-degree murder, the presumptive sentence prescribed by the Sentencing Guidelines is the maximum a judge may impose based solely on facts reflected in the jury verdict or admitted by the defendant. Shattuck, 704 N.W.2d at 141 (citing Blakely, 542 U.S. at 303, 124 S.Ct. 2531). A defendant’s criminal history score, including custody-status points, is essential to determining what the “statutory maximum” penalty is for Apprendi-Blakely purposes. Like the fact or character of a prior conviction, a defendant’s custody status can be determined by reviewing court records relating to that conviction. See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) (holding that in determining character of prior conviction, court is generally limited to examining certain court documents and statutory offense definition); State v. Leake, 699 N.W.2d 312, 325 (Minn.2005) (same). We also note that in the district court, Allen did not challenge the fact he was on probation when he committed the current offense.

For these reasons, we hold that the district court’s assigning Allen a custody-status point to calculate his criminal history score did not violate the Sixth Amendment.

IV.

Finally, Allen requests that we vacate the district court’s order requiring him to make a $200 copayment for public defender services. The order was issued pursuant to Minn.Stat. § 611.17, subd. 1(c) (2004), which we subsequently declared unconstitutional in State v. Tennin, 674 N.W.2d 403, 410 (Minn.2004).

Allen did not raise this issue in the court of appeals or present it in his petition for review, which would ordinarily bar him from raising it now. We nevertheless address the issue in the interests of justice and vacate the order.

Reversed and remanded.

ANDERSON, G. BARRY, Justice

(concurring in part and dissenting in part).

I concur with the majority that the imposition of an upward dispositional departure under the Minnesota Sentencing Guidelines, based upon a finding of una-menability to probation, violated appellant’s Sixth Amendment right to a jury trial. I also concur with the majority that the district court did not violate the Sixth Amendment by assigning appellant a custody-status point in determining appellant’s presumptive sentence.

I part company from the majority as to the remedy, for the reasons expressed in the dissent in State v. Shattuck, 704 N.W.2d 131,148 (Minn.2005) (Anderson, G. Barry, J., concurring in part and dissenting in part).

Having concluded the guidelines are nonseverable, the entire sentencing guidelines regime is unconstitutional and I would instead remand for sentencing under the statutory range for the offense committed.

      . Both offenses are forms of first-degree driving while impaired, a severity level seven offense under the Sentencing Guidelines. Minn.Stat. § 169A.24; Minn. Sent. Guidelines IV, V. All references to the Sentencing Guidelines in this opinion are to the 2004 version.

      . We recently ruled that Blakely does not apply retroactively to cases on collateral review. State v. Houston, 702 N.W.2d 268, 273 (Minn.2005).

      . We note that in Apprendi and one subsequent case, the Court has enunciated the principle that it is permissible for a judge “to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481, 120 S.Ct. 2348 (emphasis in original); accord Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).

      . The guideline reads in pertinent part:
      2. One point is assigned if the offender:
      a. was on probation, parole, supervised release, conditional release, or confined in a jail, workhouse, or prison pending sentencing, following a guilty plea or verdict in a felony, gross misdemeanor or an extended jurisdiction juvenile case, or following a felony, gross misdemeanor or an extended jurisdiction juvenile conviction;
      b. was released pending sentencing at the time the felony was committed for which he or she is being sentenced;
      c. committed the current offense within the period of the initial length of stay pronounced by the sentencing judge for a prior felony, gross misdemeanor or an extended jurisdiction juvenile conviction. This policy does not apply if the probationary sentence for the prior offense is revoked, and the offender serves an executed sentence; or
      d. became subject to one of the criminal justice supervision statuses listed in 2.a above at any point in time during which the offense occurred when multiple offenses are an element of the conviction offense or the conviction offense is an aggravated offense.
      Minn. Sent. Guidelines II.B.2.

      . At sentencing, Allen's counsel stated that the custody-status point was assigned because Allen was "still technically on probation,” but argued that this was not significant because, if Allen’s earlier sentence had been executed as he requested, the point would not have been assigned. We note that Minn.Stat. § 609.135, subd. 7 (2004), prohibits an offender from demanding execution of a stayed sentence if he or she "will serve less than nine months at the state institution,” which apparently was the case here.

      . Under the statute, Allen could receive a sentence of imprisonment for not more than seven years, a fine not exceeding $14,000, or both. Minn.Stat. §§ 169A.20, subd. 2; 169A.24 (2004).


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Arturo CAMACHO, et. al., Appellants, v. TODD AND LEISER HOMES, Respondent.
    No. A04-599.
    Supreme Court of Minnesota.
    Nov. 23, 2005.
    As Modified Dec. 20, 2005.

      Charles E. Lundberg, Mark P. Hodkin-son, J. Scott Andresen, Bassford Remele, P.A., Minneapolis, MN, for Appellant.
    William L. Moran, Michelle D. Christensen, Murnane, Conlin, White & Brandt, P.A., St. Paul, MN, for Respondent.
    David D. Hammargren, Jennifer A. Thompson, Hammargren & Meyer, P.A., Edina, MN, for Amicus Curiae the Minnesota Homeowners’ Alliance.
   OPINION

PAGE, Justice.

This case involves an issue of statutory construction arising from the dissolution of an incorporated residential building contractor. Appellants Arturo and Kristi Camacho (the Camachos) brought suit against respondent Todd and Leiser Homes, Inc. (TLH), a dissolved corporation, for negligence and breach of construction warranties under Minn.Stat. § 327A.02, subd. 1(c) (2004). TLH moved to dismiss, claiming that the corporate dissolution statute, Minn.Stat. § 302A.7291, subd. 3(a) (2004), barred the Camachos’ claims. The district court denied TLH’s motion. TLH appealed and the court of appeals reversed. Camacho v. Todd & Leiser Homes, No. A04-599, 2004 WL 2940812 (MinmApp. Dec.21, 2004). The court of appeals held that under the corporate dissolution statute the Camachos were required to bring their action against TLH within two years of the filing of TLH’s notice of dissolution and, having failed to do so, the district court lacked personal jurisdiction over TLH. Id. at *3-4. The court of appeals also held that the Camac-hos were not entitled to recover under any liability insurance policies TLH may have carried at the time the house was constructed. Id. at *5.

The Camachos raise two issues in this appeal: (1) whether the court of appeals erred in finding that Minn.Stat. § 302A.7291 (2004) barred the Camachos from bringing suit under Minn.Stat. § 327A.02 (2004); and (2) whether the court of appeals erred in finding the Ca-machos were not entitled to recover to the extent TLH was insured as required by Minn.Stat. ch. 326 (2004). We affirm.

In the fall of 1993, TLH acted as general contractor for the construction of a house at 300 Lady Slipper Lane in Vadnais Heights, Minnesota (the house). TLH was a Minnesota corporation at the time the house was built. On April 29, 1997, TLH filed a notice of intent to dissolve the corporation with the Minnesota Secretary of State. See Minn.Stat. § 302A.723 (2004). On May 6, 1999, TLH filed its articles of dissolution and the Secretary of State issued a certificate of dissolution to the corporation that same day. See Minn. Stat. § 302A.7291.

In July 1999, the Camachos purchased the house for $305,000. In August 2003, in preparation for selling the house, the Ca-machos had the house inspected. That inspection revealed that the house had experienced significant moisture intrusion that resulted in deterioration and rot of exterior sheathing, studs, windows, and other structural components of the house, as well as mold growth. According to the Camachos, farther investigation revealed that the moisture intrusion was caused by TLH’s faulty workmanship and failure to follow appropriate building standards. The Camachos estimate the cost of repairs to the house will exceed $200,000.

On September 23, 2003, the Camachos commenced this action against TLH by serving a summons and complaint on Jill Todd, TLH’s former vice president. The summons and complaint identified TLH as the named defendant. The complaint alleges negligence in TLH’s construction of the house and breaches of Minn.Stat. §§ 327A.01-05 (2004). In its answer to the complaint, TLH, in addition to denying liability, asserted that the corporate entity under which it acted as general contractor in constructing the house was dissolved on May 6, 1999, pursuant to its April 1997 notice of intent to dissolve, and the articles of dissolution filed and certificate of dissolution issued that same day. Based on that dissolution, TLH asserted that the Camachos’ claims were barred under Minnesota law. TLH also moved to dismiss the Camachos’ action. In the motion, TLH asserted that the two-year limitations period set out in Minn.Stat. § 302A.7291, subd. 3(a), barred the Ca-machos’ claims.

The district court denied TLH’s motion, reasoning that the statutory new-home warranties were specific and the corporate dissolution statutes were general and, as such, the specific home warranty statutes controlled over the general corporate dissolution statutes. As noted above, the court of appeals held that under section 302A.7291, subdivision 3(a), the Ca-machos were time-barred from bringing a claim against TLH and, therefore, the district court lacked personal jurisdiction over TLH. Camacho, 2004 WL 2940812 at *5. In concluding that the Camachos’ claims were time-barred, the court of appeals stated that “[t]he home-construction-warranty statute provides a time gradation for bringing breach-of-home-warranty actions.” Id. at *4. Also, as noted above, the court of appeals determined that the Camachos were not entitled to recover under any insurance policy TLH may have had when it was operating as a corporation. Id. at *5.

I.

Statutory construction is a question of law. Questions of law are reviewed de novo. Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 679 (Minn.2004). When construing statutes, the objective is to “ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2004). If the language of the statute is unambiguous, we must follow the plain language of the statute. Vlahos, 676 N.W.2d at 679. When two statutes appear to be in conflict, “the two shall be construed, if possible, so that effect may be given to both.” Minn.Stat. § 645.26, subd. 1 (2004).

The Camachos argue that there is a conflict between the chapter 327A warranties and section 302A.7291 because the statutes cannot be applied simultaneously while giving full effect to both. According to the Camachos, Minn.Stat. § 327A.02, subd. 1(c), provides homeowners with a ten-year statutory warranty, while the corporate dissolution statute shields corporations from suits such as those allowed under section 327A.02 after two years from the filing of the notice of intent to dissolve. TLH argues that there is no conflict between the two statutes, and section 302A.7291 applies to bar the Camachos’ claims.

Section 302A.7291, subdivision 3(a), states:

If the corporation has paid or provided for all known creditors or claimants at the time articles of dissolution are filed, a creditor or claimant who does not file a claim or pursue a remedy in a legal, administrative, or arbitration proceeding within two years after the date of filing the notice of intent to dissolve is barred from suing on that claim or otherwise realizing upon or enforcing it.
Section 327A.02, subdivision 1, states:
In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that:
(c) during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects due to noncompliance with building standards.

Section 327A.05, subdivision 1 (2004), states:

Upon breach of any warranty imposed by section 327A.02, subdivision 1, the vendee shall have a cause of action against the vendor for damages arising out of the breach, or for specific performance.

These statutes, while seemingly in conflict, can, in this case, be construed to give effect to each because of the distinct purpose each serves. Specifically, section 327A.05, subdivision 1, provides homeowners with a substantive cause of action against a builder for breach of the warranty defined in section 327A.02, subdivision 1(c), while section 302A.7291, subdivision 3(a), sets an end date for bringing a substantive cause of action against a voluntarily dissolved corporation. Read together, section 302A.7291, subdivision 3(a), acts as a statute of repose barring section 327A.02, subdivision 1(c), warranty claims brought against voluntarily dissolved corporations.

While section 327A.05, subdivision 1, creates a substantive cause of action, it does not specifically address the time during which the homeowner can bring a warranty claim. Section 327A.02, subdivision 1(c), merely provides a warranty that extends ten years from the completion of the home construction, but does not provide any additional time limitations for bringing a warranty claim. To determine when a plaintiff with a potential warranty claim can bring suit, we must look to the applicable statutes of limitations or statutes of repose.

Specifically, MinmStat. § 541.051, subd. 4 (2002), provides that statutory warranty actions under chapter 327A must “be brought within two years of the discovery of the breach.” However, in this case, section 541.051 is not the only statute limiting the Camachos’ claim because section 302A.7291, subdivision 3(a), acts as a statute of repose for bringing a cause of action against the dissolved corporation, which constructed the house at 300 Lady Slipper Lane. It requires any person with a claim against a dissolving corporation to bring that claim within two years of the corporation’s filing of the notice of intent to dissolve. By its nature, section 302A.7291, subdivision 3(a), assumes the person bringing the claim has a valid substantive cause of action, but sets an end date for a plaintiff with' a claim to obtain a remedy. Statutes of repose are intended to give finality to the potential defendant and create “a substantive right in those protected to be free from liability after the legislatively-determined period of time.” 54 C.J.S. Limitations of Actions § 5 (2005) (footnote omitted). Here, the legislative purpose in enacting section 302A.7291 is to provide finality for those corporations that are voluntarily dissolving. Moreover, dissolution of a corporation is akin to the death of an individual and abates all litigation against that corporation. See Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 493-95 (D.Minn.1989).

When reading the statutes together, we construe section 302A.7291, subdivision 3(a), as a statute of repose barring substantive claims, such as home construction warranties, brought against voluntarily dissolved corporations. In the instant case, section 302A.7291, subdivision 3(a), is simply another governing procedural statute limiting the remedy available to homeowners with a substantive warranty claim against a voluntarily dissolved corporation. See MinmStat. § 302A.7291, subd. 3(a). The fact that the warranty statute benefits individual homeowners does not dictate the extent to which statutes instituting time limitations affect a substantive right.

We recognize that homeowners with valid warranty claims against voluntarily dissolved corporations may be unable to obtain a remedy when the warranty breach is discovered more than two years after the corporation’s notice of dissolution is filed. It is the province of the legislature, not this court, to provide a remedy to those homeowners who may be foreclosed from bringing an action.

II.

We next address whether the court of appeals correctly held that the Camachos cannot maintain an action against TLH to the extent TLH was insured as required by Minn.Stat. ch. 326. As a prerequisite for acquiring a residential building contractor license, Minn.Stat. § 326.89, subd. 2(3), requires the license application to include a certificate of liability insurance and Minn.Stat. § 326.94, subd. 2, requires a licensee to at all times carry public liability insurance with minimum coverage of $100,000 per occurrence. The Camachos claim that the insurance coverage TLH had during construction of the house should be available to satisfy the Camachos’ claims. Thus, the Camachos ask this court to fashion a remedy that would allow them to collect from the insurance policy TLH had in place at the time the house was constructed. The court of appeals rejected the Camachos’ argument, reasoning that Minnesota does not allow direct actions by third parties against insurance companies. Camacho, 2004 WL 2940812, at *5.

We have already determined that TLH is not subject to suit on the Camachos’ home-construction-warranty claim because the claim is time-barred. The only remaining entity from which they could recover their claimed damages is TLH’s insurer. The problem for the Camachos is that, in Minnesota, it is a longstanding common-law rule that courts will not allow third parties to maintain a direct action against an insurer until the third party has a judgment against the insured. See, e.g., Morris v. Am. Family Mut. Ins. Co., 386 N.W.2d 233, 237 (Minn.1986); Rinn v. Transit Cas. Co., 322 N.W.2d 357, 358 (Minn.1982); Gjovik v. Bemidji Local Bus Line, 223 Minn. 522, 523, 27 N.W.2d 273, 274 (1947). Therefore, in order for the Camachos to recover from TLH’s insurer, they must first obtain a judgment against TLH. Because we have determined they cannot do so, the insurance policy in place at the time the house was constructed is not available to provide a remedy. Any remedy giving homeowners access to the dissolved corporation’s insurance must come from the legislature.

Affirmed.

      . Minnesota Statutes § 327A.02, subdivision 1, reads in relevant part as follows:
      In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that:
      ⅜ ⅜ ⅜ ⅜
      (c) during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects due to noncompliance with building standards.

      . Minnesota Statutes § 302A.7291, subdivision 3(a), provides:
      If the corporation has paid or provided for all known creditors or claimants at the time articles of dissolution are filed, a creditor or claimant who does not file a claim or pursue a remedy in a legal, administrative, or arbitration proceeding within two years after the date of filing the notice of intent to dissolve is barred from suing on that claim or otherwise realizing upon or enforcing it.

      . The Minnesota Homeowners' Alliance filed an amicus brief. TLH moved to strike two sections of the amicus brief's appendix: depositions given in conjunction with two different cases, and an article written by two private attorneys, Shamus O’Meara & Anton van der Merwe, The 25 Year Water Claim (A Fun-Key Story), Minn. Def., Winter 2005, at 3. The amicus claims these documents are necessary to demonstrate to the court how builders will fraudulently dissolve to avoid warranty obligations.
      In the past, this court has stricken portions of an amicus brief that included letters from an attorney describing how an insurance company could front-load a claim when there was no allegation that any of the parties engaged in that practice and the letters were outside the record. Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 881 n. 2 (Minn.2000). Similarly, here there is no allegation that TLH engaged in fraudulent dissolution. The deposition is outside of the record. Consequently, the deposition and references to it are stricken.
      However, the article lies in the public domain and provides pertinent information to this court's consideration of public policy concerns in statutory construction. The article informs the court of information in the public domain that may have escaped the court's attention and therefore assists the amicus in fulfilling its proper role. See State v. Finley, 242 Minn. 288, 294-95, 64 N.W.2d 769, 773 (1954). As such, the article and referencing portions of the brief are not stricken.

      . TLH dissolved without giving notice to creditors, as allowed under section 302A.7291. Corporations that choose not to give notice to creditors may dissolve in one of two ways. The corporation may either: (1) provide for the payment of claims to all known creditors and potential claimants and dissolve immediately, upon filing the notice of intent to dissolve; or (2) file the notice of intent to dissolve and then wait at least two years before filing articles of dissolution. Minn.Stat. § 302A.7291, subd. 1(1), (2); see also Minn. Stat. § 302A.7291, subds. 3(a) (giving creditors two years after the filing of the notice of intent to dissolve to bring a claim against a corporation dissolving under section 302A.7291, subdivision 1(1)), and 3(b) (barring claimants from bringing a claim against a corporation dissolving under section 302A.7291, subdivision 1(2), more than two years after the filing of the notice of intent to dissolve). TLH apparently complied with both provisions. It waited until May 6, 1999, more than two years after filing its notice of intent to dissolve, before filing its articles of dissolution. However, in the articles of dissolution it also recited that it had provided for all known creditors and potential claimants. In any event, the parties do not dispute that, at a minimum, section 302A.7291, subdivision 3(a), applies. Therefore, because the parties are in agreement that section 302A.7291, subdivision 3(a), applies, we have analyzed the claims under this provision.

      . The court of appeals was in error when it found that the home-construction-warranty statute merely provides “a time gradation” for bringing a home-construction-warranty claim and not a substantive cause of action. Minnesota Statutes § 327A.05, subd. 1 (2004), states: "Upon breach of any warranty imposed by section 327A.02, subdivision 1, the vendee shall have a cause of action against the vendor for damages arising. out of the breach, or for specific performance.” (Emphasis added.) The use of the word "shall" in the statute indicates the legislature intended to give homeowners an affirmative cause of action against one who breaches a home construction warranty. That conclusion is reinforced by our decision in Vlahos v. R & I Construction of Bloomington, Inc., 676 N.W.2d 672 (Minn.2004). In Vlahos, we held “[a] warranty of future performance provides a guarantee that the product will perform in the future as promised. The statutory new-home warranty at issue in this case functions much like the express warranty of future performance * * Id. at 678 (citing Church of the Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 6 (Minn.1992), overruled on other grounds by Ly v. Nystrom, 615 N.W.2d 302, 314 n. 25 (Minn.2000)). A warranty of future performance provides an affirmative guarantee that something will or will not be done in the future and, therefore, is more than a simple time gradation.

      . A statute of repose is "[a] statute barring any suit that is brought after a specified time since the defendant acted * * * even if this period ends before the plaintiff has suffered a resulting injury.” Black’s Law Dictionary 1451 (8th ed.2004). In fact, "[statutes of repose by their nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists.” W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts § 30, at 168 (5th ed.1984) (footnotes omitted).

      . After this action was brought, the legislature amended subdivision 4 and added a statute of repose for statutory warranty claims. Act of May 15, 2004, ch. 196, § 1, 2004 Minn.Laws 356, 357; see Minn.Stat. § 541.051, subd. 4 (2004) (providing that "in no event may an action under section 327A.05 be brought more than 12 years after the effective warranty date”).

      . But see 18 John H. Matheson & Philip S. Garon, Minnesota Practice — Corporation Law and Practice § 9.8, at 401 n. 9 (2d ed.2004) (noting that one federal district court has suggested that "Minnesota’s statute of limitations on creditors' claims would be preempted with respect to ERISA-based claims,” and courts have "disagreed as to whether CERC-LA preempts state abatement statutes”).

      .In certain situations, cutting off a remedy before a claim arises may raise constitutional due process concerns. See, e.g., Sartori v. Hamischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 n. 3 (Minn. 1988); Bulau v. Hector Plumbing & Heating Co., 387 N.W.2d 659, 662 (Minn.App.1986). We have held "that the legislature may consti-nationally abrogate a common law right without providing a reasonable substitute if it is pursuing a permissible, legitimate legislative objective.” Sartori, 432 N.W.2d at 453.

      . We note that if Minn.Stat. § 302A.7291, subd. 3(b), applied to TLH, Minn.Stat. § 302A.781, subd. 2 (2004), might allow the Camachos an extra year in which to file the claim. Specifically, the Camachos can bring the suit against TLH one year after the filing of the articles of dissolution if they can demonstrate that their failure to file the claim earlier was in good faith. Minn.Stat. § 302A.781, subd. 2. In this case, however, the Camachos filed the claim four years after the filing of the articles of dissolution. Therefore, the Camachos would be barred from bringing the claim even if section 302A.7291, subdivision 3(b), applied, and the outcome of this lawsuit would be the same.


text:
    Cindy LEIDENFROST, Respondent, v. WAL-MART STORES, INC., and Pennsylvania/AIG, claims administered by Claims Management, Inc., Relators, and Institute for Low Back & Neck Care, and Abbott Northwestern Hospital, Intervenors.
    No. A05-1666.
    Supreme Court of Minnesota.
    Nov. 28, 2005.

      Christopher E. Sandquist, Gislason & Hunter, LLP, Mankato, MN, Carl J. Som-merer, Sommerer & Schultz, P.A., Minneapolis, MN, for Relators.
    Kris Wittwer, Steward, Zlimen & Jun-gers, Ltd., Minneapolis, MN, for Interve-nor, Abbott Northwestern Hospital.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 25, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Dale Charles DODGE, Jr., a Minnesota Attorney, Registration No. 298001.
    No. A05-2144.
    Supreme Court of Minnesota.
    Nov. 28, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Dale Charles Dodge, Jr., has committed professional misconduct warranting public discipline, namely, misappropriation of closing funds from a title company escrow account managed by respondent in violation of Minn. R. Prof. Conduct 8.4(c) and (d).

Respondent has waived his right to answer the petition and understands that by doing so the allegations of the petition are deemed admitted pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR), has waived his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, respondent Dale Charles Dodge, Jr., is disbarred. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY AC`ION AGAINST John T. ANDERSON, Jr., a Minnesota Attorney, Registration No. 2549.
    No. A05-335.
    Supreme Court of Minnesota.
    Nov. 28, 2005.
   ORDER

On August 11, 2005, this court suspended respondent John T. Anderson, Jr., from the practice of law for a period of 60 days. Respondent has filed with this court an affidavit for reinstatement and the Director of the Office of Lawyers Professional Responsibility has filed with this court an affidavit certifying respondent has complied with all conditions for reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, respondent John T. Anderson, Jr., is reinstated to the practice of law in the State of Minnesota. Respondent is placed on supervised probation for two years subject to the terms set forth in the court’s August 11, 2005, order.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard J. HAEFELE, a Minnesota Attorney, Registration No. 39214.
    No. A05-498.
    Supreme Court of Minnesota.
    Nov. 28, 2005.
   ORDER

Following a hearing on a petition for disciplinary action filed against Richard J. Haefele, the referee found that respondent committed professional misconduct warranting public discipline, namely, engaging in a consensual sexual relationship with a client and entering into a series of business transactions with the same client without written disclosure of the potential conflicts and without providing for fair and reasonable terms for his client in violation of Minn. R. Prof. Conduct 1.8(k) and 1.8(a). The referee recommended that respondent be suspended from the practice of law for six months.

The Director of the Office of Lawyers Professional Responsibility and respondent have entered into a stipulation in which they agree that the referee’s findings of fact and conclusions of law are conclusive, respondent waives briefing and oral argument to the Supreme Court, and the parties jointly recommend that the appropriate discipline is a six-month suspension conditioned upon payment of $900 in costs and disbursements under Rule 24, Rules on Lawyers Professional Responsibility (RLPR), and compliance with Rule 26, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard J. Haefele is suspended from the practice of law for a period of six months, effective immediately. Respondent’s reinstatement under Rule 18(a)-(e), RLPR, is conditioned upon payment of $900 in costs and disbursements under Rule 24, RLPR, and compliance with Rule 26,-RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Auginaldo Leon ADKINS, Appellant.
    No. A04-1692.
    Court of Appeals of Minnesota.
    Nov. 22, 2005.

      Mike Hatch, Attorney General; and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge; PETERSON, Judge; and HALBROOKS, Judge.
   OPINION

STONEBURNER, Judge.

Appellant challenges his conviction of first-degree burglary, arguing that the district court erred by denying his motion to suppress identification evidence. He also asserts that the district court erroneously sentenced him as a career offender in violation of his right to a jury determination of aggravating sentencing factors. Because the totality of the circumstances demonstrates that the identification had adequate independent origin and was reliable, the district court did not err by denying appellant’s motion to suppress, and we affirm the conviction. Because sentencing under the career-offender statute violated appellant’s Sixth Amendment rights, we reverse the sentence imposed and remand for resentencing consistent with this opinion.

FACTS

Fifteen-year-old K.L. was home from school with a sore throat, sleeping in his attic bedroom. He woke up when he heard a loud noise and went downstairs to investigate. He pried apart slats of a door that separated the stairs from the living room and saw an African-American man walking around. K.L. watched the man walk into the kitchen, reenter the living room, and walk to the picture window where he unzipped a hockey-referee bag owned by K.L.’s father and looked inside. The man then walked down the hall toward a bedroom, returned to KL.’s view, and approached the door K.L. was behind. As the man came toward K.L., K.L. pushed the door open. K.L. and the man stood face-to-face for a couple of seconds, then the man ran out of the house. K.L. called his father who called the police.

Officers Prust and Molina responded to the call of “interrupted burglary.” On their way to the residence, the officers received information from a dispatcher that the suspect was an older African-American man who had “larger lips and larger ears,” and who was wearing a large coat. The officers saw only one pedestrian in the area, an African-American man in a dark coat. Prust thought that the man they saw was probably the intruder.

The officers discovered that the back door of KL.’s home had been kicked in and part of the frame had fallen down. There was a footprint on the door and footprints in the snow leading to the residence. Twenty-five minutes later, Officer Nelson radioed that he had stopped a suspect (appellant) about a mile from the residence. Prust and Molina took K.L. to the scene of the stop for a “show-up” identification. They told K.L. that they had stopped someone, and they wanted K.L. to look at the person to see if K.L. could identify him. They parked 50 to 120 feet from the squad car in which the suspect was seated and used a P.A. system to ask Nelson to remove appellant from Nelson’s squad car. Appellant, who was handcuffed, was taken out of the car and ordered to turn around slowly. K.L., who viewed appellant through a window in the squad car in which he was seated with Prust and Molina, immediately identified appellant as the intruder. Prust and Molina recognized appellant as the man they had seen on their way to KL.’s residence.

Appellant was charged with first-degree burglary. Appellant moved to suppress K.L.’s identification as unreliable, pointing out some variations in K.L.’s description of the intruder before and after the show-up identification. The district court denied the motion, finding that although the show-up identification was unnecessarily suggestive, under the totality of the circumstances there was no substantial likelihood of misidentifieation.

A jury found appellant guilty. The state moved for an upward sentencing departure under Minn.Stat. § 609.1095, subd. 4 (2004). Based on appellant’s prior felony convictions, including eight burglary-related convictions, the district court found that the current offense was committed as part of a pattern of criminal conduct and sentenced appellant under Minn.Stat. § 609.1095, subd. 4 (2004), to a term of 96 months, an upward departure from the presumptive sentence. This appeal followed.

ISSUES

I. Did the district court err by denying appellant’s motion to suppress identification evidence?

II. Did sentencing under Minn.Stat. § 609.1095, subd. 4 (2004), based on a judicial finding that the present offense was committed as part of a pattern of criminal conduct, violate appellant’s Sixth Amendment right to trial by jury?

III. Is Minn.Stat. § 609.1095, subd. 4, unconstitutional?

ANALYSIS

I. Identification evidence

When the facts are not in dispute, pretrial suppression issues are reviewed de novo to determine whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). Identification evidence is only admissible if it is reliable. State v. Taylor, 594 N.W.2d 158, 161 (Minn.1999). The ultimate concern is whether police conduct may have influenced a witness’s identification. State v. Anderson, 657 N.W.2d 846, 850 (Minn.App.2002). To determine whether an identification procedure violated a defendant’s right to due process, Minnesota applies the two-part test articulated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Taylor, 594 N.W.2d at 161. The court first decides whether the procedure was unduly suggestive and if so, next determines whether, in light of the totality of the circumstances, the identification was nonetheless reliable. Id. If the procedure was unduly suggestive, the identification evidence may only be admitted if, under the totality of the circumstances, the identification “has adequate independent origin” and is therefore reliable despite the unnecessarily suggestive procedure. State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995).

The district court found, and the parties do not dispute, that the show-up identification procedure used in this case was unnecessarily suggestive. See Taylor, 594 N.W.2d at 161-62 (stating that a one-person show-up is by its very nature suggestive, although not per se unnecessarily suggestive). Appellant argues that under the totality of the circumstances, KL.’s identification was unreliable. To evaluate the likelihood of irreparable misidentification, courts consider five factors:

1) The opportunity of the witness to view the suspect at the time of the crime;
2) The witness’s degree of attention;
3) The accuracy of the witness’s prior description of the suspect;
4) The level of certainty demonstrated by the witness at the confrontation; and
5) The time between the crime and the confrontation.

Ostrem, 535 N.W.2d at 921. The district court made specific findings as to each factor, finding that (1) K.L. had sufficient opportunity to view appellant during commission of the crime; (2) K.L. was coherent, aware, and attentive during his observation of the intruder; (3) there was no substantial difference between KL.’s descriptions of the intruder before and after the show-up; (4) KL.’s identification was certain; and (5) the time between the crime and the identification was minimal. The record supports the findings, and the findings support the conclusions that the identification had adequate independent origin and there was not a substantial likelihood of irreparable misidentification.

Appellant argues that even if the identification would be admissible under the traditionally applied standard, this court should reject that standard for evaluating out-of-court identifications and adopt a per se rule excluding identification evidence obtained through suggestive procedures. Appellant cites “recent scientific research” and nonjurisdictional cases in support of this request to change existing law in Minnesota. But we are an error-correcting court and it is not the role of this court to abolish established judicial precedent. St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn.App.1989) (stating, in context of rejecting adoption of discovery rule to trigger statute of limitations in medical-malpractice actions, “[i]t is not our role to abolish nearly 60 years of established judicial precedent”), review denied (Minn. Mar. 29, 1989). Under the existing standard for evaluating out-of-court identifications, the district court did not err in denying appellant’s motion to suppress the identification.

II. Sentencing

The state argues that appellant waived his right to raise a Blakely challenge because no objection was made in the district court to sentencing under the career-offender statute. Waiver of a constitutional right must be knowing, voluntary, and intelligent, and waiver of the right to a jury trial requires that a defendant have knowledge of that right. State v. Hagen, 690 N.W.2d 155, 158-59 (Minn.App.2004). Appellant was sentenced approximately 14 days before the Blakely opinion was released and therefore could not have made a knowing, voluntary, and intelligent waiver of his right to a jury determination of facts supporting the departure.

Minn.Stat. § 609.1095, subd. 4 (2004) (the career-offender statute) permits an upward departure from the presumptive sentence “if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” Based on the district court’s determination that appellant met the statutory criteria, appellant was sentenced to an upward departure from the presumptive sentence for first-degree burglary. Appellant asserts that the sentence violated his Sixth Amendment right to a jury determination of aggravating sentencing factors other than the fact of a prior conviction as recognized in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). See State v. Mitchell, 687 N.W.2d 393, 400 (Minn.App.2004) (noting that determining whether a conviction is part of a “pattern of criminal conduct” goes beyond a mere determination as to the fact, or number, of prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right, and holding that sentencing under the career-offender statute violates a defendant’s Sixth Amendment right to a jury determination of factors that increase a sentence above the recommended guidelines announced in Blakely), review granted (Minn. Dec. 22, 2004).

The state argues that Mitchell is distinguishable from the instant case because Mitchell involved a comparison of different criminal acts, and weighed the degree to which the acts were similar with respect to a pattern of criminal conduct. In contrast, the state argues, when, as in this case, a pattern of criminal conduct exists on the face of a defendant’s prior convictions, the finding of a pattern of criminal conduct is required, and Blakely is not implicated. But the recently released opinion in State v. Shattuck, 704 N.W.2d 131 (Minn.Aug.18, 2005) (as modified by Order of October 6, 2005), compels us to examine whether the 2004 career-offender statute remains available to support this upward departure.

III. Constitutionality of career-offender statute

In Shattuck, the supreme court held that the imposition of an upward du-rational sentencing departure under Minn. Stat. § 609.109, subd. 4 (2004), violated Shattuck’s Sixth Amendment right to a jury trial. Id., 704 N.W.2d 131 (as modified by Order October 6, 2005). The supreme court stated:

Because section 609.109, subdivision 4 ... authorize^] the district court to make ... an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury, we hold that the statute is facially unconstitutional and section II.D of the guidelines is unconstitutional as applied.

Id. Section 609.109, subd. 4, like the career-offender statute at issue in this case, authorized an upward departure based on a judicial determination at the time of sentencing about the nature of the crime for which sentence was being imposed. We therefore conclude that Minn.Stat. § 609.1095, subd. 4 (2004), is unconstitutional to the extent that it authorizes a judicial finding that a pattern of criminal conduct exists. Because the statute is unconstitutional as applied to appellant’s sentence, we reverse the sentence imposed.

The state argues that the failure to submit the “pattern of criminal conduct” issue to a jury must be reviewed under a plain-error analysis, citing United States v. Cotton, 535 U.S. 625, 634, 122 S.Ct. 1781, 1787, 152 L.Ed.2d 860 (2002) (holding that a constitutional right may be forfeited by failure to timely assert the right), and United States v. Booker, 543 U.S. 220, -, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005) (stating that in reviewing Blakely appeals, reviewing courts are expected to apply ordinary prudential doctrines including the plain-error test).

Plain-error involves an analysis of whether there was “(1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). The state concedes that there was error that is plain in this case, but argues that because any factfinder would necessarily conclude from appellant’s eight burglary-related convictions that the burglary for which appellant was being sentenced was part of a pattern of criminal behavior, appellant’s substantial rights were not affected. Despite the appeal of this argument, and despite the language in Booker suggesting that plain-error applies to Blakely violations, we conclude that the constitutional right to have a jury decide any issues that will increase the duration of a sentence is, in itself, a substantial right.

Because Minn. Sent. Guidelines II. D.2.b.(9) lists as an aggravating factor on which an upward durational sentencing departure can be based that an “[o]ffender is a ‘career offender’ ” and references Minn. Stat. § 609.1095, subd. 4, presumably for the definition of a “career offender,” it is possible that the district court could have imposed the upward departure under the guidelines. The legislature has amended the guidelines statute to provide for sentencing juries to determine the existence of aggravating factors, and the amendment, made effective the day following enactment, applies both prospectively and to resentencing hearings. 2005 Minn. Laws, ch. 136, art. 16, § 4, at 1115. The supreme court has not expressed an opinion about these changes but in Shattuck did not “foreclose the district court from considering any constitutionally applicable and/or available laws on remand.” Shattuck, 704 N.W.2d 131 (Minn.2005) (as modified by Order October 6, 2005). Likewise, we do not foreclose the district court from considering such laws on remand.

DECISION

Because, under the totality of the circumstances, K.L.’s identification of appellant was reliable, the district court did not err in denying appellant’s motion to suppress identification evidence. Because the career-offender statute, Minn.Stat. § 609.1095, subd. 4 (2004), is unconstitutional insofar as it permits a judicial determination of an aggravating factor beyond the recidivism exception recognized in Ap-arenta, we reverse the sentence imposed and remand for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . At the scene of the show-up identification, Officer Molina recognized that the tread on appellant's shoes matched the footprints at K.L.'s home.

      . The state relies on an unpublished opinion, State v. Henderson, 2004 WL 1925395, No. A03-1898 (Minn.App. Aug.31, 2004), review granted (Minn. Nov. 23, 2004) for the proposition that a jury finding is unnecessary where the pattern of criminal conduct is evident from the face of prior convictions. But this court held that Henderson was implicitly overruled by State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004). State v. Berry, No. A04-1435, 2005 WL 1021374, at *3 (Minn.App.2005), review denied (Minn. July 19, 2005).

      . The 2005 legislature amended section 609.1095, subd. 4, to provide for an upward durational sentencing departure based on a factfinder’s determination of the conditions triggering upward sentencing departures under the statute. 2005 Minn. Laws. ch. 136, art. 16, § 12, at 1119. But the amendment became effective on August 1, 2005, and applies only "to crimes committed on or'after that date,” id., and therefore does not apply to appellant.


author: KAPSNER, Justice.

text:
    2005 ND 202
    Anthony Charles MATTHEWS, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050068.
    Supreme Court of North Dakota.
    Nov. 29, 2005.

      Tracy A. Gompf (on brief), Fargo, ND, for petitioner and appellant.
    Reid A. Brady (on brief), Assistant State’s Attorney, Fargo, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Anthony Matthews appealed from a judgment dismissing his application for post-conviction relief. We affirm, holding conclusory allegations that counsel failed to call certain witnesses do not support a claim of ineffective assistance of counsel.

I.

[¶ 2] A frantic 911 call reported that Matthews and Bobby Murray were being held by four or five individuals who had guns somewhere on a farm near Horace. The 911 caller identified herself as Kim Fox, Murray’s mother-in-law. The 911 caller reported Murray told Star Fox the gunmen were allowing him an opportunity to make one last phone call to say goodbye. The 911 dispatcher called the telephone company to place a trace on the call to Star Fox’s telephone in order to determine where Murray’s call had originated. While waiting for the phone company to trace the call, the dispatcher learned the location of Matthews’ house in Fargo. Fargo police officers were dispatched to Matthews’ home. When they arrived, they noticed that lights were on in the house, but no one answered the door when the officers knocked. The officers left the house.

[¶ 3] The phone company reported to the dispatcher that it was unable to trace the phone call from Murray. The officers decided they had to enter Matthews’ house in Fargo, without a warrant, in order to find information that might lead the officers to the Horace location. They re-toned to the house approximately one hour after the first attempt to find someone at Matthews’ house. Once inside Matthews’ house, the officers searched for business records. During the search of the house, they discovered marijuana and a digital scale in a closet in a sealed garbage bag underneath some other materials in an upstairs bedroom. Matthews moved to suppress the evidence discovered from the warrantless search of his house. He claimed the police had no grounds to believe an emergency was taking place at his house in Fargo because the call related to an event in Horace.

[¶ 4] Matthews’ motion to suppress was denied. He conditionally pled guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia, but reserved his right to appeal the denial of his motion to suppress the marijuana evidence. On Matthews’ direct appeal, a majority of this Court affirmed the district court’s decision not to suppress the evidence. See State v. Matthews, 2003 ND 108, 665 N.W.2d 28.

[¶ 5] Matthews filed an application for post-conviction relief arguing he received ineffective assistance of counsel because his trial counsel failed to subpoena additional witnesses for his hearing to suppress the marijuana evidence. Matthews claimed that he was prejudiced by the lack of testimony from these witnesses. At his hearing for post-conviction relief, Matthews testified as to what he believed the additional witnesses might have said. Matthews testified these witnesses would have shown the search of his house was done for improper purposes and that the credibility of the police could be attacked.

[¶ 6] The potential witnesses break down into three areas: (1) Star and Kim Fox would have testified that they knew Matthews’ cell phone number which the police could have called to determine where Matthews was being held at gun point; (2) several police officers could have testified about the police department’s past knowledge of Matthews’ drug activity and they could also contradict the testimony of an officer who did testify at the suppression hearing against Matthews; and (3) Bobby Murray could have testified about the purpose of his call to Star Fox. Matthews claims Murray knew they were not actually being held at gun point.

[¶ 7] The ■ State argues the district court properly determined Matthews did not receive ineffective assistance of counsel. The State claims Matthews failed to present admissible evidence regarding what the potential witnesses might have said. Furthermore, the State argues Matthews did not adequately demonstrate how the results in the case would be different had these potential witnesses testified at his motion to suppress hearing.

[¶ 8] Matthews’ trial counsel testified at the post-conviction hearing for the State. Trial counsel discussed his role in preparing the case noting that he thought the motion to suppress would likely win. He also testified that subpoenaing certain witnesses was not discussed.

Q Did Mr. Matthews give you any instructions on subpoenaing witnesses or on what to do at the motion hearing?
A We discussed the fact that the burden was on the State once we raised the issue. There was never any discussion about subpoenaing Ms. Roberts because there was never any indication — and, unfortunately, I think it’s hindsight on Tony’s part— there was never any indication that law enforcement had his cell phone number. She may well have had the cell phone number. She may well have been in a position to give it to law enforcement. But there was never any indication, either from Tony or in the reports, that that information was ever relayed to law enforcement. Frankly, if it had been relayed to law enforcement, I’m sure that they would have tried to reach Mr. Matthews.
Q Did you contemplate subpoenaing the other officers?
A They were sub — Mr. Boening subpoenaed Pallas and the other officer’s name escapes me at the- present time.
Q That would be Potter or Such?
A Potter.
Q Were you intending to examine the other officers?
A Well, I had assumed that they would have — would have attempted to explain away the holes in the police reports and the problems that we saw with the time line. Again, I think I indicated to Mr. Boening before the hearing we wondered where Potter was. I didn’t see his nonappearance as being particularly damaging because, again, we were more than satisfied with the time line that was established in those police reports.

[¶ 9] The district court determined Matthews failed to prove he received ineffective assistance of counsel. The court found that Matthews “presented no evidence to the Court that would have indicated that the results of the suppression hearing would have been any different ... [or] that his counsel in the criminal matter fell below any objective standard of reasonableness.” Matthews appealed.

II.

[¶ 10] Following the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel bears the heavy burden of proving (1) counsel’s representation was objectively unreasonable, and (2) the defendant was prejudiced by counsel’s deficient performance. Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845. The unreasonableness prong requires that a defendant overcomes the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Sayler v. State, 2005 ND 166, ¶ 9, 704 N.W.2d 559 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The prejudice prong requires the defendant to prove that, “but for his counsel’s errors, the result of the proceeding would have been different.” Id.

[¶ 11] A defendant arguing he received ineffective representation because his trial counsel failed to call additional witnesses must show how any additional witnesses would have aided the defense’s claim. Damron v. State, 2003 ND 102, ¶ 16, 663 N.W.2d 650. “[TJhis court requires more than a mere representation of what the testimony would be; we require some form of proof, e.g., an affidavit by the proposed witness, or testimony in a post-eonviction-relief proceeding.” State v. Ricehill, 415 N.W.2d 481, 484 (N.D.1987).

[¶ 12] In this case, Matthews’ only proof of what the additional witnesses might testify to was testimony from Mat-thews himself. Matthews did not present affidavits from the additional witnesses nor did he have the witnesses testify at his post-conviction hearing. His testimony as to what the witnesses might say is not sufficient evidence as to what the witnesses would say. This Court has warned that mere “[c]onclusory allegations that counsel failed to call certain witnesses without indicating what the testimony would have been, how it might have affected the outcome of the trial, or what prejudice may have resulted from the failure to call them, do not support a claim of ineffective assistance of counsel.” State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985).

[¶ 13] According to Matthews, Star and Kim Fox could have testified that they knew his cell phone number. The police could have then called the number to determine where Matthews was being held at gun point. But during Matthews’ cross-examination, he conceded that he did not believe his cell phone number was relayed to law enforcement by Star or Kim Fox. Thus, even if Star or Kim Fox testified, it would not have assisted in the suppression hearing, because the information had not been conveyed to the police at the time the presumed emergency was occurring.

[¶ 14] Matthews also claims that several police officers could have testified about their past knowledge of Matthews’ drug activity, and they could also contradict the testimony of Sergeant Pallas who did testify against Matthews at the suppression hearing. Because none of Matthews’ proposed officers testified at the post-conviction hearing, it is impossible to determine what they would say. If one of the officers would have said the search of his house without a warrant was done for pretextual purposes and not because they believed an emergency existed, it likely would have affected the outcome of the suppression hearing. But Matthews’ brief testimony of what the officers might have said was only a conclusory allegation unsupported by any evidence. This is not sufficient proof under our jurisprudence. See, e.g., Rice-hill, 415 N.W.2d at 484; Schlickenmayer, 364 N.W.2d at 112.

[¶ 15] Matthews also believes Murray could testify about the real purpose of the call to Star Fox. Matthews believes Murray knew they were not being held at gun point. But the purpose of Murray’s phone call was not known by the law enforcement at the time of the decision to enter Matthews’ home. Thus, Murray’s purpose for making the call would be irrelevant. Only the police officers belief that an emergency was occurring when they entered the home was relevant.

[¶ 16] Even if Matthews’ conclusory statements could be construed as some form of proof of what the potential witnesses might say, Matthews’ testimony was not sufficient to show he received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article I, § 12 of the North Dakota Constitution. Laib v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845.

[¶ 17] The additional testimony of Star or Kim Fox, the police officers, or Murray is only speculative. Providing speculative evidence about what a witness might have said does not demonstrate an attorney fell below a reasonable standard of conduct in not calling those witnesses. For the most part, if the witnesses had testified as Matthews suggests they would testify, their testimony would have been irrelevant to the outcome of the suppression hearing. The fact that Kim Fox or Star Fox knew a phone number at a time when that phone number might have been helpful in the police investigation does not demonstrate ineffective assistance of counsel. The same can be said about an undisclosed motive of Murray whose call to Star Fox resulted in the 911 call. An officer stating that he did not believe an emergency was occurring at Matthews’ house in Fargo would likely affect the outcome of the suppression hearing. But no evidence was presented at the post-conviction hearing that would suggest Matthews’ counsel could have produced such evidence at the suppression hearing. Without evidence showing such testimony was available, Matthews cannot demonstrate prejudice. Thus, Matthews has not met his burden under Strickland.

III.

[¶ 18] Matthews has not made a sufficient offer of proof as to what the potential witnesses might say, has not provided any argument as to why it was objectively unreasonable not to call these witnesses, and has not shown how he was prejudiced. The judgment of the district court is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


text:
    2005 ND 201
    In the Interest of P.B. William Pryatel, M.D., Petitioner and Appellee v. P.B., Respondent and Appellant.
    No. 20050351.
    Supreme Court of North Dakota.
    Nov. 29, 2005.

      Leo A. Ryan, Special Assistant Attorney General, Jamestown, ND, for petitioner and appellee.
    Thomas E. Merrick, Jamestown, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] P.B. appeals an order from the district court requiring him to be hospitalized at the North Dakota State Hospital for continuing treatment. We affirm.

I.

[¶ 2] P.B., a 37-year-old man, has been hospitalized at the State Hospital continuously since June 2003. He suffers from bipolar disorder with manic and psychotic features causing him to have delusions of grandeur imagining he is the King of Prussia or Germany; paraphilia, a sexual deviant behavior that has manifested itself in a molestation of a relative; and anti-social personality disorder which has resulted in threatening behavior including occasionally lashing out at people in anger. P.B. also has a history of alcohol and cannabis use and dependence.

[If 3] A petition requesting continuing treatment at the State Hospital based on P.B.’s past history of mental disorders and violence was filed by Dr. William Pryatel. At the continuing treatment hearing, Dr. Pryatel testified P.B. had struck numerous patients and staff throughout the years.

Dr. Pryatel opined that P.B. still requires treatment because he is a serious risk to himself and others if he -is not treated. The district court found by clear and convincing evidence that P.B. continues to suffer from mental disorders and requires treatment for his disorders.

[¶ 4] On appeal, P.B. does not object to continued hospitalization. P.B. argues that as part of the least restrictive conditions for his treatment, he should be allowed to be employed outside the State Hospital.

II.

[¶ 5] We are sensitive to the liberty interest at stake when reviewing an order for continued treatment. Interest of M.S., 1999 ND 117, ¶ 5, 594 N.W.2d 924. With this fundamental interest involved, an individual requiring treatment has a right to receive the least restrictive conditions necessary for treatment. N.D.C.C. § 25-03.1-40(2); Interest ofR.F., 2005 ND 102, ¶ 4, 697 N.W.2d 311. Under a least restrictive analysis, a district court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the treatment needs of the individual; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. Interest of KG., 2005 ND 156, ¶4, 703 N.W.2d 660. District courts must use a clear and convincing standard of proof while this Court uses a more probing clearly erroneous standard of review. Interest of J.S., 530 N.W.2d 331, 333 (N.D. 1995). Under this more probing standard, “we will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.” Id.

[¶ 6] P.B. argues that under N.D.C.C. § 25-03.1-40(11) he retains all civil rights, including the constitutional right “to obtain employment wherever possible.” N.D. Const, art. I, § 7. Thus, P.B. asserts as part of the least restrictive treatment available to him, he should retain the right to work where he chooses. The argument is a novel one, but fallacious for several reasons.

[¶ 7] P.B.’s civil rights are, out of necessity, limited based on his involuntary commitment at a mental health facility. Involuntary commitment includes “a massive curtailment of liberty.” Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987). Similar to other involuntary commitment settings, an individual committed to a mental health facility does not enjoy the same level of freedom and rights as an uncommitted individual. Id. (“Commitment proceedings generally mirror criminal proceedings”). “[I]ncarceration brings about the necessary withdrawal or limitation of many privileges and rights.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). If P.B. were allowed to leave the hospital to work at his leisure, the entire purpose of his continuing treatment order would be upset.

[¶ 8] Under N.D.C.C. § 25-03.1-21(1), a district court has the decision of either hospitalization or “treatment program other than hospitalization.” In order for P.B. to be able to engage in the employment of his choice during treatment, the evidence would have to show a “treatment program other than hospitalization” is both adequate to address his treatment needs and sufficient to address the risk of harm to P.B. and others. Id. P.B. agrees he needs hospitalization. Once a decision of hospitalization is made, it is not the province of this Court to micro-manage the State Hospital as to whether P.B. should be allowed to work where he chooses. Cf. Interest of R.R., 2004 ND 18B, ¶ 1, 690 N.W.2d 429 (noting a-district court is required “only to determine whether treatment other than hospitalization is appropriate, not which unit in the hospital is appropriate”).

[¶ 9] P.B.’s past pattern of conduct shows that P.B. is still a risk to the community if he was left unsupervised. Interest of K.G., 2005 ND 156, ¶7, 703 N.W.2d 660 (noting past conduct can be an indiction of predicting future events in mental health appeals). This is P.B.’s ninth admission to the State Hospital. At his most recent stay in a less restrictive transitional living facility, P.B. physically assaulted another patient after the patient knocked off P.B.’s hat. P.B. testified that he kicked “the shit out of the guy.” P.B. lamented that the guy was “persistent as all heck.” When P.B. knocked the guy down, he would just get up again.' P.B. continued to hit the patient until he was restrained. On this record, there was sufficient evidence to support the district court’s finding that hospitalization was the only adequate facility for P.B.’s treatment needs.

III.

[¶ 10] The continuing treatment order is affirmed.

[¶ 11] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


text:
    2005 ND 205
    Andrea Marie OIEN, n/k/a Andrea Marie Huso, Plaintiff and Appellant v. Reed Lee OIEN, Defendant and Appellee.
    No. 20050204.
    Supreme Court of North Dakota.
    Nov. 29, 2005.

      Mark S. Douglas (argued), Child Support Enforcement Unit, Jamestown, ND, for plaintiff and appellant.
    Reed Lee Oien (no appearance), defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Andrea (Oien) Huso through the South Central Child Support Enforcement Unit (“Unit”) appealed from a district court order denying a motion to modify judgment to increase child support payments. We conclude the district court misapplied the law in denying Huso’s request for a hearing on her motion to modify judgment. We reverse and remand for further proceedings.

I.

[¶ 2] Reed Oien, Huso’s former husband, was required to pay $656.00 a month for the support of his three minor children following the couple’s divorce. Oien was later diagnosed with congestive heart failure and ordered not to work by his doctor. On February 28, 2002, Oien filed a motion to amend judgment to vacate his child support obligation because he was disabled and had no income. By an amended judgment entered May 8, 2002, Oien was relieved from making any further child support payments. The amended judgment states: “Defendant has not yet become eligible for Social Security Disability Income, nor does he have any other sources of income at this time.” He subsequently applied for and received disability benefits.

[¶ 3] Huso requested the Unit to review Oien’s child support obligation under N.D.C.C. § 14-09-08.4. The Unit conducted a review of the prior child support order and concluded Oien’s obligation was less than the amount required by the guidelines. On March 10, 2005, Huso filed a motion to modify judgment requesting the district court review the child support calculation. Filed with the motion was an affidavit of Daniel Jeske, a child support administrator, stating, without supporting documentation, Oien’s monthly income was now approximately $761.00, and based on this income level, Oien should be required to pay $232.00 per month. According to the affidavit, only $117.00 per month was being met by a social security benefit, thus Oien was deficient $115.00 per month.

[¶ 4] The same day the motion was filed, an e-mail was sent to Brenda Richards, Judge Simonson’s court reporter, requesting that a hearing be scheduled for Huso’s motion to modify child support. A printed copy of the e-mail was returned to the Unit with a handwritten notation signed by Judge Simonson stating: “Mr. Oien has been rel[ie]ved of his duty to provide child support and health insurance due to his disability. Unless he is no longer disabled, I do not plan to have a hearing.” Counsel for the Unit wrote to Judge Simonson on April 13, 2005, asking him to set the case for a hearing, asserting the obligation to conduct a hearing under N.D.C.C. §§ 14-09-08.9 and 14-09-08.4. Alternatively, and in order to obtain an appealable order, counsel submitted a proposed order which was “taken from your handwritten notation dated March 11, 2005.” The e-mail with Judge Simonson’s response and the letter are included in appellant’s appendix: but do not appear on the clerk’s Register of Actions.

[¶ 5] An affidavit by Huso in support of her motion to modify judgment was referred to in counsel’s letter to Judge Si-monson. The affidavit bears the clerk’s stamp dated April 20, 2005. The affidavit, while not appearing in the record until after the order was entered, challenges Oien’s disability claim. Huso claims she has witnessed Oien “engaging in physical labor or hunting” on numerous occasions. She also states that she knows Oien has been working to supplement his income.

[¶ 6] On April 15, 2005, Judge Simon-son signed the order, denying Huso’s request to increase her child support. The order stated: “The Defendant Reed Lee Oien has been previously relieved of his duty to provide child support and health insurance due to his disability.” It is from the April 15, 2005, order denying Huso’s motion to modify judgment based on Oien’s disability that Huso appeals.

II.

[¶ 7] Under N.D.C.C. § 14-09-08.4(3), the Unit is authorized to seek modification of a prior child support order if the amount ordered is inconsistent with the guidelines. If the prior order was entered at least one year before the motion to modify, the trial court must apply the guidelines and order support in the presumptively correct amount, unless the presumption is rebutted. N.D.C.C. § 14-09-08.4(4); Nelson v. Nelson, 547 N.W.2d 741, 744 (N.D.1996). An obligor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Nelson, 547 N.W.2d at 744-45. “The guidelines recognize that parents have a duty to support their children to the best of their abilities, not simply to their inclinations.” Otterson v. Otterson, 1997 ND 232, ¶ 10, 571 N.W.2d 648.

[¶ 8] Child support determinations involve varying standards of review depending on the issue appealed. In the Interest of D.L.M., 2004 ND 38, ¶ 6, 675 N.W.2d 187. This Court applies a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse-of-discretion standard of review for discretionary matters. McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876. A party seeking amendment under N.D.C.C. § 14-09-08.4 has the burden of proving the existing level of support does not conform to the guidelines. Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234.

[¶ 9] In this case, Huso presented the district court with an affidavit of Daniel Jeske that Oien was receiving disability income which would require him to pay child support. Instead of considering the motion, the district court denied Huso’s request for a hearing and made a decision that Oien’s disability precludes him from paying child support. This misapplies the law. Under the child support guidelines, disability does not necessarily excuse a parent from the obligation to pay child support. See N.D. Admin. Code § 75-02-04.1 — 07(4)(b). We have noted the burden of proof is “on the obligor to show the disability is sufficient in severity to reasonably preclude employment.” Bernhardt v. Bernhardt, 1997 ND 80, ¶ 9, 561 N.W.2d 656. The presence of a disability is a discretionary consideration that the court can take into account when determining the amount of support. N.D. Admin. Code § 75-02-04.1-07(4)(b). The guidelines provide that gross income “may be imputed in an amount less” if there is a showing of “disability sufficient in severity to reasonably preclude the obligor from gainful employment.” Id.

[¶ 10] We recognize that Huso’s affidavit questioning the extent of Oien’s disability did not appear in the record until after the district court issued its order denying Huso’s motion. Judge Simonson, makes no reference to Huso’s affidavit in his order. Huso’s counsel explains this incident by stating at oral argument the affidavit was sent directly to Judge Simon-son’s chambers along with a letter and that this should be considered the equivalent of filing because the judge is a public official. But filing letters with a district court judge is not the equivalent of filing with the clerk of court. Our rules require “[a] party seeking to file a pleading or other document must submit it to the clerk.” N.D.R.Ct. 3.1(e). The explanatory notes specifically address this very problem by stating “[submitting a document to a judge or to court personnel other than the clerk does not constitute filing.” See N.D.R.Ct. 3.1(e), Explanatory Notes.

[1111] Rule 30(a), N.D.R.App.P., states: “Only items in the record may be included in the appendix.” This Court has warned that “[i]nappropriate attempts to supplement the evidentiary record at the appellate level cannot be condoned.” Van Dyke v. Van Dyke, 538 N.W.2d 197, 203 (N.D.1995). Items not in the record, and not subject to a motion to supplement the record under N.D.R.App.P. 10(h), but placed in the appendix and brought before this Court are not considered. This Court may subject the party putting them in the appendix to sanctions. See, e.g., Hurt v. Freeland, 1997 ND 194, ¶ 13, 569 N.W.2d 266; Lake Region Credit Union v. Crystal Pure Water, Inc., 502 N.W.2d 524, 528 (N.D.1993); Bye v. Federal Land Bank Ass’n of Grand Forks, 422 N.W.2d 397, 399 (N.D.1988); In re Estate of Raketti, 340 N.W.2d 894, 898 (N.D.1983). Furthermore, we will not consider evidence presented for the first time on appeal, because an “appeal is to be determined upon the record below.” Schmidt v. Schmidt, 2003 ND 55, ¶ 22, 660 N.W.2d 196. Disregarding, as we must, the information in the improperly filed appendix items, there is sufficient information in the record to determine the district court misapplied the law when it denied, without a hearing, Huso’s motion, supported by Jeske’s affidavit, to modify child support. We can infer solely from the district court’s April 15, 2005, order that the court incorrectly concluded disability was an automatic barrier to paying child support.

III.

[¶ 12] The district court misapplied the guidelines by determining disability automatically precludes a child support obligation without a hearing. We reverse the order denying Huso’s motion to modify judgment and remand for further proceedings consistent with this opinion. In view of the improperly included appendix items, we award no costs to the appellant.

[¶ 13] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.