author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. William SENSKE, Appellant.
    No. A03-1677.
    Court of Appeals of Minnesota.
    March 1, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; KALITOWSKI, Judge; and WRIGHT, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This appeal is from sentences imposed on two counts of first-degree criminal sexual conduct committed in violation of Minn. Stat. § 609.342, subd. 1(g) (2002). The appeal has been remanded to this court for reconsideration in light of Blakely v. Washington, — U.S.--, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm in part and reverse in part.

FACTS

Appellant William Senske was charged with two counts of first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2002) (sexual penetration of a child under the age of 13 by a person more than 36 months older than the child). Senske agreed to plead guilty to an amended complaint alleging two violations of Minn.Stat. § 609.342, subd. 1(g) (2002) (sexual penetration of a child under the age of 16 with whom the actor has a “significant relationship”). There was no agreement as to sentencing, but the amendment of the complaint allowed the court to consider staying the sentence if doing so was in the best interests of the victims or the family and if appellant was amenable to treatment. See Minn.Stat. § 609.342, subd. 3 (2002).

At the guilty-plea hearing, Senske admitted that he committed multiple acts of sexual contact and penetration with K.L., his stepdaughter. He also admitted there were multiple incidents of sexual conduct and penetration with J.L., Senske’s son. Finally, he admitted blindfolding J.L. during some of the acts.

At sentencing, following the recommendations of the state, the pre-sentence investigator, and a probation officer who had met with Senske for a sex offender assessment, the district court determined that Senske’s sentence should not be stayed, finding that he needed the kind of intensive sex offender treatment found only in prison. The court also determined that Senske’s offenses warranted an upward durational departure. As aggravating factors, the court cited the psychological injury to the children, vulnerability due to age, Senske’s planning and manipulation (which included blindfolding the children, posing them, and requiring them to have sex with each other), his threats to kill them or other family members if they reported the abuse, his abuse of a position of trust, and the multiple incidents of abuse. The court then imposed consecutive sentences of 216 months for each count, representing 50-percent upward durational departures from the presumptive sentences. The court noted that consecutive sentencing was permissive because both sexual offenses were “crimes against persons.” See Minn. Sent. Guidelines II.F.2.

On appeal, Senske initially argued that some of the aggravating factors cited by the district court were improper because they were elements of the two offenses. This court rejected that argument and affirmed the departures. State v. Senske, No. A03-1677, 2004 WL 1445318 (Minn. App. June 29, 2004), opinion vacated, remanded (Minn. Aug. 25, 2004). The supreme court subsequently granted Senske’s petition for further review, vacated this court’s initial opinion, and remanded for reconsideration in light of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

ISSUES

1. Do the upward durational departures imposed violate appellant’s right to a jury trial under Blakely?

2. Does consecutive sentencing, although permissive, violate appellant’s right to a jury trial under Blakely?

ANALYSIS

I.

Appellant argues that the 50 percent upward departures imposed on each count, based on judicial findings of aggravating factors, violated his right to a jury trial under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court, extending the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that the “statutory maximum” is the greatest sentence a judge can impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, — U.S. at -, 124 S.Ct. at 2537 (emphasis omitted). The defendant, it held, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction that increases the sentence above this maximum. Id. at 2543. The Court, therefore, reversed and remanded the 90-month “exceptional sentence” that had been imposed under Washington’s determinate sentencing scheme. Id.

The state concedes that Blakely has been applied to upward durational departures under the sentencing guidelines. See State v. Conger, 687 N.W.2d 639, 644 (Minn.App.2004), review granted (Minn. Dec. 22, 2004). The state also concedes that appellant is entitled to the application of Blakely in this case. The state argues, however, that appellant is not entitled to relief under Blakely because he admitted to sufficient aggravating factors to support the upward departures.

At the guilty-plea hearing, appellant admitted to multiple incidents of abuse against each victim, and he also admitted to multiple forms of penetration, as well as to blindfolding one of the victims. But these admissions were not accompanied by a waiver of the right to a jury determination on these sentencing factors, as required by State v. Fairbanks, 688 N.W.2d 333, 336-37 (Minn.App.2004), review granted (Minn. Jan. 20, 2005) (stayed pending decision in Shattuck), and State v. Hagen, 690 N.W.2d 155, 159 (Minn.App.2004). There was no agreement as to sentence, and appellant, therefore, was not advised that these factors could be used to support a sentencing departure.

Based on Shattuck, Conger, and the inadequacy of appellant’s “admissions” under Fairbanks and Hagen, we conclude that the upward durational departures must be reversed.

II.

Appellant also argues that the use of consecutive sentencing, based on a judicial finding that consecutive sentences were permissive because the offenses were “crimes against persons,” violated his right to a jury trial under Blakely.

Under the sentencing guidelines, consecutive sentencing is permissive when the court is sentencing on “[mjultiple current felony convictions for crimes against persons,” or when there is a prior felony sentence for a “crime against a person” that has not been discharged. Minn. Sent. Guidelines II.F.l., 2. Appellant argues that because the determination whether a crime is a “crime against a person” is made by the sentencing judge rather than a jury, consecutive sentencing under this provision violates his right to a jury trial under Blakely.

Consecutive sentencing concerns the relationship between two sentences, separately imposed for different offenses. In order for consecutive sentences to be imposed for multiple current convictions, the law must permit multiple sentences. The double jeopardy clauses of the federal and state constitutions include a protection from multiple punishments for the same offense. State v. Calmes, 632 N.W.2d 641, 649 (Minn.2001). In Minnesota, there is also statutory protection against multiple punishment for the same conduct. Minn. Stat. § 609.035, subd. 1 (2004). Unless these legal limits on multiple sentences are satisfied, the issue of consecutive sentencing for current convictions does not arise.

Because multiple sentences were not at issue in Blakely, the Court did not discuss consecutive sentencing. See Blakely, — U.S. at -, 124 S.Ct. at 2535. But, as appellant points out, consecutive sentences are intended to be a more severe sanction than concurrent sentences. See Minn. Sent. Guidelines cmt. II.F.01. And here, consecutive sentencing was made permissive based on a judicial finding, rather than a jury finding, that the offenses are “crimes against persons.” Minn. Sent. Guidelines II.F.

Appellant pleaded guilty to two counts of first-degree criminal sexual conduct committed against different victims. He could be separately sentenced for these offenses only by reason of the law of double jeopardy and Minn.Stat. § 609.035. Although the issue of multiple sentencing is not raised here, and we need not, therefore, decide whether the offenses arose out of a single behavioral incident, we note that in some eases consecutive sentencing for “crimes against persons” would depend on the applicability of the multiple-victim exception to the rule against multiple punishment under Minn.Stat. § 609.035. Here, the jury’s verdict, while determining that appellant was guilty of two crimes, did not determine whether those crimes were part of the same behavioral incident, or whether, despite that, multiple sentences could be imposed because there were separate victims. Whether multiple offenses arose from a single behavioral incident depends on the facts and circumstances of the particular case. State v. Papadakis, 643 N.W.2d 349, 357 (Minn.App.2002). But the jury is not presented with that issue.

The basic problem with applying Blakely to consecutive sentences is, as the state points out, that the two sentences are separate and punishments for different offenses. Courts in other jurisdictions have rejected the argument that the combined duration of consecutive sentences could violate the rule of Apprendi, which limits the sentence that can be imposed based on judicial findings. See State v. Bramlett, 273 Kan. 67, 41 P.3d 796, 798 (2002) (interpreting Apprendi as limiting the court’s ability to increase sentence based on its own findings only as to “any individual count”); People v. Wagener, 196 Ill.2d 269, 256 Ill.Dec. 550, 752 N.E.2d 430, 442 (2001) (“holding that [bjecause consecutive sentences remain discrete, a determination that sentences are to be served consecutively cannot run afoul of Apprendi, which only addresses sentences for individual crimes.”) The Illinois Supreme Court in Wagener also noted that Apprendi “explicitly disclaimed any holding regarding consecutive sentencing.” Id. at 441, 120 S.Ct. 2348.

Our supreme court, in applying Appren-di, has declined to consider the cumulative duration of two consecutive sentences. See O’Meara v. State, 679 N.W.2d 334, 341 (Minn.2004) (reducing consecutive terms to 25 years each under Apprendi, although the combined 50-year sentence would have violated the 25-year statutory maximum). Although the application of Apprendi to consecutive sentences was apparently not argued in O’Meara, it seems the court perceived no problem with allowing the combination of consecutive terms to exceed the statutory maximum. See id. (noting that the statutory maximum was “25 years for each conviction”).

The same considerations limiting Ap-prendi to single sentences also apply to Blakely. Although Blakely does not discuss the possible effect of consecutive sentencing, as Apprendi did, its discussion is limited to enhancement of a sentence for a single crime. See Blakely, — U.S. at -, 124 S.Ct. at 2535 (discussing enhancement of sentence for burglary based on use of a firearm). The opinion addresses the distinction between elements • and sentencing factors. Id. at 2539. It does not discuss the possibility that the defendant’s conduct may satisfy the elements of more than one crime, except to note that prosecution and conviction for “an entirely separate offense” is preferable to use of the same conduct as a sentencing-enhancement factor. Id. at 2539-40„n. 11.

Courts in other jurisdictions have declined to extend Blakely to consecutive sentencing based on judicial findings. See Patrick v. State, 819 N.E.2d 840, 847 (Ind.App.2004) (citing Cowens v. State, 817 N.E.2d 255 (Ind.App.2004); cf. People v. Murray, 5 Misc.3d 636, 785 N.Y.S.2d 675, 677 (N.Y.Sup.2004)) (declining to extend Blakely to consecutive sentences until an appellate court holds it may be so extended); People v. Navarro, 124 Cal.App.4th 1175, 22 Cal.Rptr.3d 198, 202 (2004) (holding jury’s verdicts on multiple counts implied crimes committed on different occasions against different victims that could therefore, be sentenced consecutively). Although sentencing considerations may differ in different states, appellant has not cited any decisions extending Blakely to either multiple sentencing or to consecutive sentencing.

Consecutive sentencing is admittedly intended to be a more severe sanction than concurrent sentencing. Minn. Sent. Guidelines cmt. II.F.01. And the judicial finding that multiple. convictions are for “crimes against persons” authorizes that sanction, which in this case could not otherwise be imposed without departure. But unless there is a basis to also require the jury to determine the permissibility of multiple sentences, we find no grounds on which to apply Blakely to permissive consecutive sentencing.

Blakely, while presuming a “standard range” sentence (or “presumptive sentence” in Minnesota) that is determined solely by the jury’s verdict, nevertheless requires that the jury determine “all facts legally essential to the punishment.” — U.S. at-,-, 124 S.Ct. at 2535, 2543. But here, the “punishment” involved two separate sentences, and the jury does not determine all facts essential to the imposition of separate sentences.

Consecutive sentencing has a significant effect on the length of time served in prison. But the effect of consecutive sentencing on the statutory máximums at issue in Apprendi was at least as significant as the impact of consecutive sentencing on presumptive sentence durations. The legislature has removed the statutory maximum of 40 years that formerly limited the aggregate duration of consecutive sentences. 1992 Minn. Laws, ch. 571, art. 2, § 8 (amending Minn.Stat. § 609.15, subd. 2 (1990)). Even before that amendment, however, the supreme court had strictly construed the 40-year limit as counting only the time remaining on a prior conviction, not the total prison time imposed for that conviction. State v. Higginbotham, 348 N.W.2d 327, 330 (Minn.1984). With the removal of the aggregate 40-year limit, consecutive sentencing permits the aggregate sentence to greatly exceed the statutory maximum sentence on any one count, the problem at issue in Apprendi.

We conclude that Blakely does not apply to permissive consecutive sentencing based on a finding that the offenses are “crimes against persons.” Consecutive sentencing involves separate punishments for discrete crimes. Just as our supreme court, and courts in others states, have not applied Apprendi to consecutive sentences imposed for separate offenses, there is no basis to apply Blakely to consecutive sentences. A contrary holding would require the jury first to determine whether the imposition of multiple sentences itself was permissible. We conclude that Blakely does not require the jury to determine the relationship between multiple sentences any more than it would require a jury determination whether multiple sentences are permissible. Therefore, the district court’s decision to make appellant’s sentences consecutive is affirmed.

D E C I S I O N

The upward durational departures on both counts violated appellant’s right to a jury trial under Blakely. But the district court properly imposed consecutive sentences based on its own findings.

Affirmed in part and reversed in part.

      . The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn, argued Nov. 30, 2004). By order filed in Shattuck on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant's rights as articulated in Blakely, -U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004) (per curiam). The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy. Id.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge. SHUMAKER, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Jessica Rae WHITE, Respondent.
    No. A04-1518.
    Court of Appeals of Minnesota.
    March 1, 2005.
    Mike Hatch, Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Karen A. Swedenburg Her-land, Assistant City Attorney, Minneapolis, MN, for appellant.
    Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; RANDALL, Judge; and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This appeal is from a pretrial order dismissing a charge of gross-misdemeanor prostitution, committed in a public place, under MinmStat. § 609.324, subd. 2 (2002). We affirm.

FACTS

The complaint alleges that on May 25, 2004, at about 1:00 a.m., undercover Officer Willis was driving an unmarked vehicle at 31st Street and 5th Avenue South in Minneapolis. Officer Willis saw respondent Jessica Rae White standing by the street and pulled his car over to the curb. White walked to the car and entered it “without invitation” from the officer. As Officer Willis drove, White first sought assurance that he was not a police officer and then asked Officer Willis what he wanted to do. After they negotiated an exchange of oral sex for $30, Officer Willis signaled other officers, who arrested White.

White moved to dismiss the complaint for lack of probable cause, arguing that the interior of Officer Willis’s car was not a “public place” as required by the statute under which she was charged. The district court granted the motion to dismiss, and the state filed this appeal.

ISSUE

Is the inside of a motor vehicle traveling on a public street a “public place” for purposes of the gross-misdemeanor prostitution statute?

ANALYSIS

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Respondent White, however, argues that because this is a pretrial appeal by the state, the district court must be affirmed unless the state shows its decision was clearly erroneous. See State v. Trei, 624 N.W.2d 595, 597 (Minn.App.2001), review dismissed (Minn. June 22, 2001). We conclude that under either standard of review the district court’s order must be affirmed.

The statute White was charged with violating applies to anyone who “solicits or accepts a solicitation to engage for hire in sexual penetration or sexual contact while in a public place.... ” MinmStat. § 609.324, subd. 2 (2002). For purposes of the prostitution statutes, “public place” is' defined as:

a public street or sidewalk, a pedestrian skyway system ..., a hotel, motel, or other place of public accommodation, or a place of public accommodation, or a place licensed to sell intoxicating liquor, wine, nonintoxicating malt beverages, or food.

MinmStat. § 609.321, subd. 12 (2002) (emphasis added).

The district court concluded that the statute is ambiguous, and that the intent behind the statute was “to protect citizens from being unwitting witnesses to the agreement that constitutes the criminal conduct.” Therefore, it concluded, the term “public place” should be interpreted to refer to areas “where the public is likely to be present.”

A statute is ambiguous if it is subject to more than one reasonable interpretation. See State v. Collins, 580 N.W.2d 36, 41 (Minn.App.1998), review denied (Minn. July 16, 1998). The prostitution statute defines “public place” only in terms of various examples, such as streets, sidewalks, skyways, hotels, motels, and restaurants. Minn.Stat. § 609.321, subd. 12. The definition includes other places of “public accommodation,” id., but that term does not necessarily incorporate into the statute all places that might be considered “public.” See generally Minn.Stat. § 363A.03, subd. 34 (Supp.2003) (defining “place of public accommodation” for purposes of Minnesota Human Rights Act); Wayne v. MasterShield, Inc., 597 N.W.2d 917, 922 (Minn.App.1999) (holding apartment complex was not “place of public accommodation” under Minnesota Human Rights Act), review denied (Minn. Oct. 21, 1999).

As to some of the locations listed in the statutory definition, such as a “pedestrian skyway system,” a motel, or a licensed establishment, the statutory definition of “public place” may be unambiguous. But the primary use of a “public street” is as a place dedicated to the movement of vehicles in which the occupants have some expectation of privacy. See generally State v. Wiegand, 645 N.W.2d 125, 131 (Minn.2002) (holding that search, even of automobile, is substantial invasion of privacy). Thus, much of what occurs on a “public street” is not “public” in the usual sense of the word. We conclude that the district court properly determined that the definition of “public place,” as extended to a “public street,” is ambiguous.

The district court cited the rule of lenity applied when construing statutes that define criminal offenses. A penal statute must be strictly construed in favor of the defendant, although that does not require the court to adopt the narrowest possible interpretation. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). The district court concluded that the statutory definition of “public place” could not be construed, consistent with the rule of lenity, as applying to the interior of a motor vehicle traveling on a public street. We agree.

The object of all statutory interpretation is to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (2002); In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn.2000). The district court concluded that the intent behind this gross-misdemeanor prostitution statute was to further discourage the solicitation and negotiation of prostitution in open view of the public. Although the statute does not include a statement of purpose or intent, this intent can be readily inferred from the definition of “public place,” which explicitly includes hotels, motels, establishments licensed to sell alcohol or food, and other places of “public accommodation,” where prostitution might be visibly solicited. MinmStat. § 609.321, subd. 12. And, as illustrated by the citizen complaints that prompted Officer Willis’s undercover operation here, it is the publicly visible nature of much prostitution activity that prompts criminal enforcement.

The state cites State v. Stevenson, 656 N.W.2d 235 (Minn.2003), as it did in the district court, in support of its argument that White’s conduct occurred in a “public place.” In Stevenson, the defendant was convicted of indecent exposure and attempted fifth-degree criminal sexual conduct for masturbating while sitting in a motor vehicle parked facing a playground area. Id. at 237. The indecent exposure statute required that the act occur in “any public place.” Id. at 240 (quoting Minn. Stat. § 617.23, subd. 1 (2000)). Referring to its decision in State v. Peery, 224 Minn. 346, 28 N.W.2d 851 (1947), the supreme court held that “[o]ur concept of public was not based on the privacy expectations of the defendant but on the likelihood that the conduct would be witnessed by others.” Id. at 241, 28 N.W.2d 851. The Stevenson court, applying Peery, held that, given the location of the defendant’s vehicle, which was parked next to a public sidewalk by a beach, it was so likely that the defendant’s act would be observed by others that the defendant, it could be reasonably presumed, intended for it to be observed. Id.

As the district court noted, Stevenson did not involve a statutory definition of “public place.” Because the statute also required proof of “deliberate intent of being indecent,” the supreme court’s analysis looked to the defendant’s intent to be observed. But here, there is no need to look to White’s intent to determine the scope of the term “public place.” The issue is whether that part of the “public street” occupied by the vehicle inside which White was sitting was a “public place.”

The state cites another case interpreting the term “public place,” State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In De-Legge, a weapons-possession case, this court noted that “public place” “is a relative term and what may be a public place for one purpose may not be a public place for another purpose.” Id. at 11-12 (citation omitted). This court stated:

Because indecent exposure laws are intended to protect innocent people from being exposed to offensive sexual behavior, “public place” in indecent exposure cases has been interpreted broadly to include areas that can easily be seen by pedestrians.

Id. at 12 (citation omitted). The court concluded that because the private driveway on which DeLegge’s car was parked, with a loaded gun inside, was close to the road and other areas “where people regularly walk,” it should be considered a “public place.” Id.

Like Stevenson, DeLegge did not involve a statutory definition of “public place.” And it involved a unique statutory purpose — reducing the risk to innocent passersby from the discharge of a weapon. See id. This statutory purpose is quite different from the purpose of the gross-misdemeanor prostitution statute, which is to reduce the amount of prostitution visible to the public. It is obvious that members of the public may be threatened by the discharge of a weapon that is not visible to them. Thus, we conclude that DeLegge does not compel the conclusion that the interior of a motor vehicle is a “public place” for purposes of the gross-misdemeanor prostitution statute.

The district court also rejected the state’s argument that because the legislature in the vehicle-forfeiture and drivers-license statutes recognized that prostitution, or the solicitation of prostitutes, occurs in motor vehicles, the term “public place” should be read broadly to include the interior of automobiles. A motor vehicle is subject to forfeiture if used in the commission of a prostitution offense. Minn.Stat. § 609.5312, subd. 3(a) (2002). A person who uses a motor vehicle while patronizing a prostitute may also have the conviction noted on his driving record. Minn.Stat. § 609.324, subd. 5 (2002). But these provisions, while recognizing that motor vehicles are used, particularly by patrons of prostitutes, to commit the offense, do not necessarily indicate a legislative intent that solicitation of prostitution inside a motor vehicle should be punished more severely than solicitation in other locations. Had the legislature so intended, it could have defined as a gross-misdemeanor offense the solicitation of prostitution in a motor vehicle. Instead, the legislature defined “public place” to include only the “public street,” and left to inference or argument the extension of “public street” to the vehicles located on it. This court cannot supply that which the legislature overlooks or purposely omits. See State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999), review denied (Minn. Mar. 16, 1999).

The district court construed “public place” in the gross-misdemeanor prostitution statute as not extending to the interi- or of a moving vehicle on a public street. That is the most reasonable construction of the term, as well as the one most in accord with the intent of the statute and the one that follows the rule of lenity. Thus, the district court did not clearly err in dismissing the complaint.

DECISION

The district court properly construed the term “public place” as not including the interior of a motor vehicle traveling on a “public street,” and therefore did not clearly err in dismissing the complaint.

Affirmed.

SHUMAKER, Judge

(dissenting).

I respectfully dissent.

Under MinmStat. § 609.324, subd. 2 (2002), it is a gross misdemeanor to solicit, accept, hire, or engage in prostitution in a “public place.” Minn.Stat. § 609.321, subd. 12 (2002), defines “public place” to mean a public street, a public sidewalk, a pedestrian skyway, a hotel, a motel, a bar, a restaurant, a public accommodation, or a place of public accommodation.

The undisputed facts show that a plainclothes police officer driving an unmarked car picked up a prostitute, respondent White, in a public area and, as the two drove in the officer’s car, White offered sexual services for money. Upon the officer’s signal to other officers, White was arrested and charged with gross-misdemeanor prostitution.

Granting White’s motion to dismiss the charge for lack of probable cause, the district court ruled that White’s offer to engage in sex for money did not occur in a public place because she and the officer were inside the officer’s car. Concluding that the statute defining “public place” as applied to “public street” is ambiguous, the district court held that the meaning of “public place” is a place in which the public is likely to be present and that the purpose of the statute is “to protect citizens from being unwitting witnesses to the agreement that constitutes the criminal conduct.” Thus, according to the district court, it is the visible act of prostitution at which the statute is aimed. The majority agrees and both hold that the rule of lenity compels the result that they reach.

Preliminarily, as we explained in State v. Collins, the purpose of the rule of lenity “is to ensure that ‘criminal statutes will provide fair warning concerning conduct considered illegal.’ ” 580 N.W.2d 36, 41 (Minn.App.1998) (quoting Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434 (1985)), review denied (Minn. July 16, 1998). The district court and the majority appear to believe that the rule of lenity requires the narrowest possible reading of a criminal statute so as to benefit a defendant. But the rule does not require that. Rather, it requires only that reading which may be said to give “fair warning” of the conduct subject to penalty. Thus, a broad statute, such as we have here, might nevertheless satisfy lenity if it can be reasonably said that the statute, despite its breadth, gives fair warning of the illegal conduct. I believe the statute in question gives that warning and that the majority’s interpretation renders the statute unrealistic in its practical application to a significant societal problem.

The legislature has chosen to make prostitution a crime. Minn.Stat. § 609.324, subd. 3 (2002). If the prostitution occurs in certain public places, the legislature has chosen to make it a more serious crime. Id., subd. 2. The district court and the majority suggest that the legislature’s aim in enhancing the penalty for public prostitution is to protect members of the public from seeing or hearing the transaction of prostitution services. Implicit in this ruling is the notion that the legislature did not intend the more serious penalty for prostitution conducted discreetly and out of the sight and earshot of the law-abiding public. This is the logical extension of the district court’s and majority’s reasoning.

Under this reasoning, the legislature has turned its gross-misdemeanor eyes and ears away from the salaciously dressed prostitute who comes to a public area solely to engage in prostitution, stands provocatively on a street corner, waves at passing cars in hopes of getting some to stop, and then, when one does stop, leans through the car window and whispers the offer of sex for money.

I think the district court and the majority have adopted an ingenuous approach to the intent of the statute. Noting the breadth of the definition of “public place,” I suggest that the legislature did not intend to restrict the enhanced penalty to only overt communication audible enough to be overheard by passersby. Rather, I urge that the purpose of the definition is to discourage prostitutes from coming at all to places in which the public is frequently found. The places listed in the definition are places prostitutes are most likely to be found because those also are places customers are likely to be found. The purpose of the statute is to curtail prostitution and not merely to cause it to become unobtrusive to the public.

The district court’s and majority’s reading of the meaning of “public street” is untenably selective and forces a similar selective reading of the other places defined as public. The district court and the majority have engrafted onto “public street” an exception for a prostitution transaction that takes place in the relatively private interior of a motor vehicle on a public street. To be consistent, the majority must then read exceptions into hotel, motel, bar, and restaurant. Thus, prostitution is subject to the enhanced penalty if it takes place in a hotel or motel, unless it occurs in private rooms out of the view and earshot of the public. And acts of prostitution will incur the enhanced penalty if they happen in bars and restaurants, unless they take place in those quiet corner tables in the backs of the rooms or in booths screened a bit from the public.

The majority’s reading also forces the predicament of how to apply the statute to a public accommodation, such as a taxicab or a public bus, when it is on a public street. Although the statute expressly includes “public accommodation” within its purview, the majority’s approach virtually writes that definition out of the statute if the public accommodation is on a public street.

The majority suggests that had the legislature intended to include within the gross-misdemeanor sanction the interiors of motor vehicles on public streets, it could have said so. But considering the breadth of the prohibition — that these acts cannot be done anywhere in streets or motels or bars — it is more likely that the legislature would have provided an exception for places of privacy found within larger public settings, had it intended to exclude certain areas from the reach of the statute.

Finally, I think it reasonable to conclude that the legislature intended the term “street” as both literal and figurative. The hue and cry that we must “rid our streets of crime,” or the thought that we can keep children from getting into trouble by “keeping them off the streets,” surely are not intended to refer only literally to actual streets.

White’s act of prostitution occurred on a public street, albeit within a car. But if the legislature’s goal is to curtail prostitution in public, as I believe it is, then the majority’s decision fails to give effect to that goal, and I would reverse.

      . "Public place” is defined in Black's Law Dictionary, and that definition has been cited in a weapons-possession case. See State v. Hides, 583 N.W.2d 757, 760 (Minn.App.1998), review denied (Minn. Oct. 20, 1998). But, as discussed above, the statute at issue here defines "public place” in terms of specific locations. And the ambiguity here arises not from the term "public place” itself, but the inclusion of "public street” within the statutory definition of that term.


text:
    STATE of Minnesota, Respondent, v. Duane Nathaniel BARKER, Appellant.
    No. A04-1453.
    Court of Appeals of Minnesota.
    March 8, 2005.

      Mike Hatch, Attorney General, St. Paul, and Amy Klobuehar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This expedited appeal is from a sentence imposed for fifth-degree controlled substance offense. See Minn.Stat. § 152.025, subds. 2(1), 3(a) (2002). Appellant presents a Blakely challenge to the sentence, which was enhanced under MinmStat. § 609.11, subd. 5 (2002), the firearm-enhancement statute. See Blakely v. Washington, -U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We reverse and remand.

FACTS

Appellant Duane Barker was charged with fifth-degree controlled substance offense, committed while possessing a firearm. Police, responding to a call regarding a suspicious vehicle on November 28, 2003, found Barker, asleep or passed out, behind the wheel of the vehicle. The officers could see a handgun lying on the front passenger seat. The gun was later found to be loaded, although no bullet was actually chambered for firing.

The officers discovered that Barker had outstanding warrants for driving after suspension. When they frisked Barker, one of the officers found an electronic gram scale in his pants pocket. They also found suspected cocaine in his pants pocket, along with three suspected crack pipes and suspected marijuana. An inventory search of the vehicle revealed cocaine in the driver’s side door, a knife also found there, and two bongs.

The complaint charged Barker with a single count of fifth-degree controlled substance crime, committed “while possessing a firearm,” and therefore subject to a sentence enhancement under Minn.Stat. § 609.11.

Barker agreed to waive his right to a jury trial, submit to a stipulated-facts trial, and have a contested hearing on the firearm enhancement, the only contested issue. Although defense counsel expressed the opinion that possession of the firearm was an element of the offense rather than a sentencing enhancement, he noted that the district court had disagreed in chambers. The court, however, clarified that, although it felt Barker was entitled to a jury trial on the firearm-possession allegation, the “present state of the law” was otherwise.

Barker testified at the hearing that the gun was found on the front passenger seat and that the gun was his. Barker testified that he told police the gun was there “for my protection,” because he was concerned for his safety. He denied telling police at the scene that the gun belonged to “Robert.” Barker testified the gun was for “protection only,” and admitted that it was right next to him on the passenger seat. He also testified, however, that he had pulled the gun out from underneath the back seat when he was looking for his cell phone.

The district court concluded that Barker possessed the handgun at the time he possessed the drugs. In sentencing Barker under section 609.11, the court stated that, although it did not believe Barker was a drug dealer, the possession of the handgun increased the potential for violence, and, therefore, sentencing under Minn.Stat. § 609.11 was appropriate. The court sentenced Barker to 36 months in prison. This appeal followed.

ISSUES

1. Did the sentence enhancement for possession of a firearm under Minn. Stat. § 609.11, subd. 5 (2002) violate appellant’s right to a jury trial under Blakely?
2. If so, what is the appropriate remedy?

ANALYSIS

I.

Barker argues that the enhanced sentence imposed on him based on the judge’s findings violates the Supreme Court’s holding in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24, 1999).

The presumptive sentence for fifth-degree controlled substance crime, given Barker’s criminal history score, would have been one year and one day, stayed. Instead, he was sentenced under Minn. Stat. § 609.11, subd. 5 (2002), to an executed sentence of 36 months. Barker argues that this upward dispositional and dura-tional enhancement, violates his Sixth Amendment right to a jury trial under Blakely.

In Blakely, the Supreme Court held that the sentencing judge may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, — U.S. at -, 124 S.Ct. at 2537. In Blakely, the Court held that an upward durational departure (or “exceptional sentence,” in the Washington state law’s terminology) could not be imposed based on judicial findings. Id. at 2537-38.

The Minnesota Supreme Court has held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785 (Minn.2004) (ordering additional briefing on appropriate remedy); see also State v. Conger, 687 N.W.2d 639 (Minn.App.2004), review granted (Minn. Dec. 22, 2004) (stayed pending decision in Shattuck). This court, however, has held that Blakely does not apply to upward dispositional departures in Minnesota. State v. Hanf, 687 N.W.2d 659 (Minn.App.2004), review granted (Minn. Dec. 14, 2004).

The increased sentence imposed on Barker in this case, however, was not a guidelines departure as such, either dura-tional or dispositional. The statute at issue provides:

[A]ny defendant convicted of [a qualifying offense] ... in which the defendant or an accomplice, at the time of the offense, had in possession or used ... a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than .the maximum sentence provided by law.

Minn.Stat. § 609.11, subd. 5(a). The statute does not reference the sentencing guidelines nor describe this enhancement as a “departure.” Instead,- the statute establishes a mandatory minimum.

The guidelines incorporate mandatory-minimum statutes like section 609.11 by, in general, using the mandatory minimum as the presumptive sentence,'unless the presumptive term shown in the guidelines grid is longer. Minn. Sent. Guidelines II.E. The guidelines also provide that, whatever the presumptive disposition would otherwise have been, when an offender is sentenced under section 609.11, the presumptive disposition is execution of the sentence. Id.

Opinions of both the United States and Minnesota Supreme Courts have rejected the argument that Apprendi applies to mandatory minimum sentencing provisions. But those cases are not persuasive here in light of the guidelines provision making the section 609.11 mandatory minimum the presumptive sentence.

Our supreme court held in State v. Smith, 669 N.W.2d 19, 33 (Minn.2003), that Apprendi did not apply to the mandatory-minimum provision in the heinous-offense statute. In that case, the defendant, who • was convicted of first-degree murder, faced a life sentence, but under the heinous-offense statute, instead of being eligible for release after 30 years, he was sentenced to life without the possibility of release. See id. The supreme court held that this did not increase the maximum sentence that could be imposed, which remained life, but merely changed the minimum term that the defendant would serve. Id. Therefore, Apprendi did not apply. Id.

The United States Supreme Court, also - applying Apprendi, held in Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524 (2002), that a mandatory-minimum sentencing provision triggered when the defendant “brandished” a weapon during the offense, did not violate the defendant’s right to a jury trial under Apprendi Harris is superficially similar to this case because it also involved a firearm-enhancement provision establishing a mandatory-minimum sentence. It is different, however, because the minimum sentence mandated was one “the judge could have imposed absent the finding.” Id. at 560, 122 S.Ct. at 2415.

Here, the district court could have imposed an executed sentence of 36 months without finding Barker • possessed a firearm. To do so, however, the court would have had to cite substantial and compelling aggravating factors under the guidelines. Because Blakely, and now our supreme court in Shattuck, recognize the presumptive sentence as the “maximum” sentence authorized by the jury’s verdict, the mandatory minimum has a different effect than in Harris. See Blakely, — U.S. at-, 124 S.Ct. at 2537; Shattuck, 689 N.W.2d at 786. The mandatory-minimum sentence is no longer just the smallest of a number of authorized durations within the broad statutory sentencing range. It is now a sentence duration that must be compared to the presumptive sentence, the duration authorized solely by the jury’s verdict under Blakely.

Under the sentencing guidelines, when a mandatory-minimum sentencing provision applies, the presumptive sentence becomes “the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.” Minn. Sent. Guidelines II.E. The firearm-enhancement statute.applies to a wide range of offenses, including many, such as second-degree murder, kidnapping, and first-degree criminal sexual conduct, with ordinary presumptive sentences much longer than the three-year mandatory minimum provided in Minn. Stat. § 609.11, subd. 5(a). See Minn.Stat. § 609.11, subd. 9 (2002) (list of applicable offenses); Minn. Sent. Guidelines IV (guidelines grid), V (Offense Severity Reference Table). For these more serious offenses, the mandatory-minimum sentence, because it does not increase the presumptive sentence, has no -significance for purposes of Blakely and the jury-trial right.

But the presumptive sentence for Barker’s fifth-degree controlled substance crime, without the application of Minn. Stat. § 609.11, subd. 5(a), would have been only a stayed sentence of one year and one day. Minn. Sent. Guidelines IV, V. The mandatory-minimum statute, therefore, increased the sentence the court could impose, without departure, above the presumptive sentence, the duration that would be determined solely by the jury’s verdict.

This court has recognized that the presumptive sentence under the sentencing guidelines is not determined solely by the jury’s verdict. See Hanf, 687 N.W.2d at 661 (noting presumptive sentence is determined in part by criminal history score, “which is not a fact found by the jury”). The calculation of the ordinary presumptive sentence depends on judicial findings in other ways, such as the assignment of a custody-status point and the weighing of prior convictions. See Minn. Sent. Guidelines II.B.l.a., II.B.2. This court has rejected the argument that the custody-status point, which is used to determine the presumptive sentence, violates Blakely because it is determined by the court rather than a jury. See State v. Brooks, 690 N.W.2d 160, 163 (Minn.App.2004), pet. for review filed (Minn. Jan. 26, 2005). Brooks notes that “the concept of a ‘presumptive sentence’ is meaningless without a criminal history score, which includes status points.” Id.

But the section 609.11 mandatory minimum has a much more dramatic effect than these judicially found determinants of the presumptive sentence. The mandatory minimum creates an alternative presumptive sentence, completely distinct from the ordinary presumptive sentence that can be easily calculated from the guidelines grid. It is a new “presumptive” sentence entirely determined by a judicial finding.

It cannot be said, as it can with the criminal history score, that the concept of a presumptive sentence, relied upon in Blakely, is “meaningless” without the mandatory minimum. The ordinary presumptive sentence determined from the guidelines grid retains its original meaning even if usurped by a mandatory minimum imposed by statute. The mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence. Because it functions in the same way, we conclude, it should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely.

The state argues that even if Blakely applies to a section 609.11 mandatory-minimum enhancement, because Barker admitted the facts essential to a finding that he possessed the gun, Barker is not entitled to relief under Blakely. See Blakely, — U.S. at -, 124 S.Ct. at 2537 (recognizing exception to jury-trial right when defendant admits facts supporting increase in sentence). The state acknowledges that this court has held that such a Blakely “admission” must be accompanied by a full waiver of the right to a jury determination of sentencing facts. State v. Hagen, 690 N.W.2d 155, 159 (Minn.App.2004). But the state argues that because Barker made personal admissions in sworn testimony, Hagen is not controlling.

The state’s argument over-simplifies the issue involved in a finding of firearms possession under Minn.Stat. § 609.11. Before the statute may be applied, it must be found, based on all the facts and circumstances, that the defendant possessed a firearm and that doing so increased the risk of violence from the commission of the crime. State v. Royster, 590 N.W.2d 82, 85 (Minn.1999). Barker’s admissions that the gun was his, that he had placed it on the front seat, and that he carried it “for protection” tended to support the application of the statute. But they fell short of constituting a complete admission to facts supporting the application of section 609.11. Indeed, since Barker demanded a contested sentencing hearing on that issue, he was hardly likely to make such a sweeping admission. In particular, Barker denied that he possessed the drugs for purposes of sale, and he was found asleep in his parked car, making it unclear that he was actually dealing drugs at the time that he was found. Thus, he did not admit that possession of the gun increased the risk of violence of whatever crime he was then committing. Therefore, we conclude that, Barker did not make a full admission in his trial testimony that would satisfy Blakely.

II.

The state also argues that, assuming Blakely applies, the appropriate remedy is to remand to allow the state to prove its section-609.11 case to a jury. The supreme court has recently ordered supplemental briefing on the remedy issues in State v. Shattuck, 689 N.W.2d at 786. In that order, the court implied that placing the facts regarding the sentencing enhancement before a jury may require the “inherent authority” of that court. See id. (requesting briefing, in part, on whether supreme court has inherent authority to authorize use of sentencing juries and bifurcated trials). Therefore, it is inadvisable for this court to specify the appropriate Blakely remedy at this time. Accordingly, the sentence must be remanded for resen-tencing in such proceedings as the district court deems appropriate.

DECISION

The imposition of the mandatory-minimum sentence under Minn.Stat. § 609.11, subd. 5(a) (2002) violated appellant’s right to a jury trial under Blakely.

Reversed and remanded.


author: KONENKAMP, Justice. SABERS, Justice GILBERTSON, Chief Justice

text:
    2005 SD 7
    Derek S. BLASE, Plaintiff and Appellant, v. Heidi M. BREWER, Defendant and Appellee.
    No. 23046.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Jan. 12, 2005.
    Ellie M. Vandenberg, Volga, South Dakota, Attorney for plaintiff and appellant.

      Todd D. Boyd of Gunderson, Evenson, Boyd, Knight & Stoltenburg, Clear Lake, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this paternity action, the mother and father mediated custody and visitation, and the circuit court approved their agreement. Before the case was completed, however, the mother rescinded her agreement and the matter proceeded to trial. The father now contends that the mediated agreement binds the parties and cannot be disturbed without a showing of a significant change in circumstances. Although a court-approved mediated agreement is binding on the parties, if, after a hearing, the court finds that the best interests of the child require another custody arrangement, then the agreement will not preclude the court from entering an order on child custody at variance with what the parties previously agreed. We affirm the custody order and remand for further findings on the question of the child’s surname.

Background

[¶ 2.] Derek S. Blase and Heidi M. Brewer had a relationship that resulted in the birth of a child on August 24, 2002. On the same day, Blase arranged for a paternity test. The test result confirmed he was the father.

[¶ 3.] Blase saw the child frequently, and Brewer allowed him to take the baby with him for visits. In early January 2003, Blase and Brewer, along with their parents, met to discuss changing the child’s surname. The discussion led Blase to seek legal counsel and Brewer to file an application for child support enforcement. In circuit court, Blase was found to be the biological father and was ordered to pay $100 per month child support. The mother was awarded custody.

[¶ 4.] On the question of visitation, the court required the parties to attend mediation. The parties reached a mediated agreement. However, they could not mediate certain other issues, including the child’s surname. The court approved the agreement by order on June 9, 2003.

[¶ 5.] Before a hearing on the remaining issues, Brewer informed the court that she was not satisfied with certain terms in the mediated agreement. Consequently, the court conducted a trial on all the issues and reached a decision inconsistent with the mediated custody agreement. The resulting order, dated October 10, 2003, superseded all earlier orders. The trial court further found that the child’s surname should remain Brewer.

[¶ 6.] Blase raises three issues on appeal. (1) Did the circuit court erroneously vacate or modify a mediation order entered under SDCL 25-4-61? (2) Did the court erroneously refuse to change the minor child’s last name to either that of the father’s, or to a hyphenated last name that included both the father’s and the mother’s last names? (3) Did the court erroneously and punitively place all the burden and expense of transportation for visits on the father?

Analysis and Decision

[¶ 7.] Issues of statutory construction are reviewed de novo. Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804. Our goal in reviewing a statute is to discover the intent of the law. State v. Krahwinkel, 2002 SD 160, ¶ 13, 656 N.W.2d 451, 458 (citing State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). The plain language of statutes normally reveals the legislative intent. Id. (citing Faircloth v. Raven Indus., Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201).

[¶ 8.] Blase first argues that we should interpret SDCL 25-4-61 as binding the parties and the court. He believes the order approving the mediated agreement should be viewed with the finality of a litigated proceeding. He contends that lacking evidence of a change in circumstances, the intent of the statute is served by holding the parties and the court to the approved agreement. Otherwise, Blase asks, “Why would any party agree to go to mediation and pay the costs thereof when the results could be thrown out a few months later, and have no binding effect whatsoever in Court?”

[¶ 9.] SDCL 25-4-61 provides:

The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the parties of their right to review the agreement with counsel before they sign the agreement. After the agreement is signed by the parties, the mediator shall present the agreement to the court. The agreement is not binding upon the parties until approved by order of the court.

Blase contends that where mediation is “successful” it must be binding. To support his argument, Blase points to the last sentence of SDCL 25-4-61 that states, “The agreement is not binding upon the parties until approved by order of the court.” It cannot be denied that once a mediated agreement is approved by the court, the parties to the agreement are bound by its provisions. But the statute does not address to what extent or duration the parties are bound. Therefore, we must look beyond this single sentence to answer whether the Legislature intended to bind the parties and the court to the ápproved agreement until a change of circumstances is presented.

[¶ 10.] As authority supporting his argument that public policy requires us to hold mediated agreements sacrosanct, Blase cites Roger M. Baron, Child Custody Determinations in South Dakota: How South Dakota Courts Decide Child Custody Cases, 40 S.D. L. REV. 411 (1995). In that article, Professor Baron notes that “[pjublic policy supports settlement and compromise on issues surrounding divorce cases[.]” Id. at n. 21. Fine — but we also agree with Professor Baron when he wrote:

Most divorce cases and custody determinations are settled by agreement. An important question is whether the court is bound by the parties’ agreements regarding custody. The answer uniformly given by all courts is “no.” In South Dakota, an agreement by the parties is simply “one relevant factor for the court’s consideration,” and the agreement “does not control the court’s exercise of its discretion.” Among other things, the court has a duty to ensure that the agreement is in the best interests of the child.
In most cases, agreements by the parties are approved and adopted by the courts. However, parties may occasionally reach agreements which are not necessarily in the best interests of the child. If this occurs, the court must reject the agreement because it is in conflict with the child’s best interests.

Id. at 426-27. We have often confirmed that children’s best interests take “chief importance and will prevail over any mere preponderance of a legal right.” Pribbenow v. Van Sambeek, 418 N.W.2d 626, 628 (S.D.1988) (citation omitted). Here the court approved the agreement, but still owed a duty to ensure that the agreement was in the best interest of the child before issuing a final judgment.

[¶ 11.] Blase argues that the trial court made no fact finding to justify modifying the temporary order. Instead, Blase contends, the trial court “simply made conclu-sory statements in its findings of fact that the modification being ordered was in the best interest of the child.” Blase points to Finding of Fact 8:

The State of South Dakota has adopted visitation guidelines which are based upon the premise that infants under the age of five have a great need for continuous contact with the primary caretaker who provides a sense of security, nurturing and predictability, and accordingly, it is not in the infant’s best interests that the infant be with the non-custodial parent too much.

Regardless of whether this is a conclusion of law or a finding of fact, it was an adequate explanation for the court’s ruling. Cf. Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984). The child was “under the age of five” at the time the final order was issued, and therefore, the child had “a great need for continuous contact with the primary caretaker who provides a sense of security, nurturing and predictability.” These findings support the court’s conclusion that “it [was] not in the infant’s best interests that the infant be with the noncustodial parent too much.”

[¶ 12.] Blase asserts that any change in custody could only be justified by a substantial change in circumstances. We have previously held that there is no need to prove a substantial change in circumstances in cases that have not been contested earlier. McKinnie v. McKinnie, 472 N.W.2d 243, 244 (S.D.1991); see also Jeschke v. Wockenfuss, 534 N.W.2d 602, 605 (S.D.1995). Approval by court order of a mediated agreement does not amount to a litigated judgment. A mediation agreement is similar to a stipulation incorporated into a divorce decree. Thus, a later hearing to change or modify custody in these situations does not require a change in circumstances because the issues have never been litigated.

[¶ 13.] Blase next questions the trial court’s refusal to change the child’s surname. We agree with his assertion that the court did not sufficiently state a finding upon which his conclusion could be properly based. In Block v. Bartelt, this Court noted a nonexclusive list of factors upon which a trial court might rely to determine a child’s proper surname. 1998 SD 65, ¶ 11, 580 N.W.2d 152, 154. Those factors included: “(1) misconduct by one of the parents; (2) failure to support the child; (3) failure to maintain contact with the child; (4) the length of time the surname has been used; ... (5) whether the surname is different from that of the custodial parent”; and (6) “whether a particular name will contribute ‘to the estrangement of the child from a non-custodial parent who wishes to foster and preserve the parental relationship.’ ” Id. (citations omitted). We also noted two factors that should afford no advantage to the parties: (1) a mother’s unilateral act of naming a child at birth, and (2) the custom of giving a child the father’s surname. Id.

[¶ 14.] In Finding of Fact 13, the court found:

The child’s surname, Brewer, has been the child’s surname since his birth on the 24th day of August, 2002, and the surname is the same as the child’s mother who is the primary caretaker, and there appears to be no good cause for changing the child’s surname, and therefore, it is in the best interests of the child that his surname remain the same, Brewer.

The court’s decision places improper emphasis on the mother’s unilateral act of naming the child at birth. The finding is couched in terms that seem to be in accord with the length of time a surname has been used. However, Blase has contested the child’s surname for virtually that entire time. Thus, by considering the length of time the surname had been used, the trial court was, in effect, giving Brewer the very advantage that this Court has determined to be improper. Thus, the ultimate question should not be whether “there appears to be no good cause for changing the child’s surname,” but whether the child’s best interests favor such a change. Brewer argues that Blase’s failure to list his name on the birth certificate at the child’s birth amounted to an acquiescence of the surname Brewer. We do not believe it would be fair to use this rationale. A putative father is at a disadvantage when he wishes to obtain a paternity test before accepting the duties and privileges of fatherhood. If he admits paternity before testing and the tests later prove he is not the father, he loses the opportunity to challenge paternity, which the law allows him. Thus, we conclude the trial court erred in not considering the proper factors.

[¶ 15.] Blase’s third issue lacks sufficient merit for discussion. Lastly, Brewer submitted an itemized statement for attorney fees, and based on our well-settled factors in deciding claims for such fees, we award her $1000 in appellate attorney fees.

[¶ 16.] Affirmed in part and remanded in part.

[¶ 17.] ZINTER, and MEIERHENRY, Justices, concur.

[¶ 18.] SABERS, Justice, dissents.

[¶ 19.] GILBERTSON, Chief Justice, concurs in part and dissents in part.

SABERS, Justice

(dissenting).

[¶ 20.] I would affirm the trial court on all three issues, not just the first and third issues.

[¶ 21.] The trial court considered the matter of the child’s surname and determined that there was “no good cause for changing the child’s surname and ... [that] it is in the best interests of the child that his surname remain the same, Brewer.” (emphasis added).

[¶ 22.] There is no showing that Blase paid any of the medical expenses in connection with the birth of the child. In addition, there is no showing that Blase paid any support for the period from the birth of the child in August 2002 until he was ordered to do so in February 2003. Since then, Blase has been ordered to pay a mere $100 per month child support, when the cost to support the child may be five to ten times that much. Obviously, the mother is not only the primary caretaker of the child but also the primary supporter and the trial court had sufficient reason to leave the child’s surname as Brewer.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶ 23.] Like Justice Sabers, I would affirm the trial court on all three issues.

[¶ 24.] As far as the child’s surname, Block v. Bartelt, 1998 SD 65, ¶ 11, 580 N.W.2d 152, 154, sets up “a nonexclusive list of factors upon which a trial court might rely to determine a child’s proper surname.” This not being a mandatory checklist, Justice Sabers is correct that the trial court’s conclusion that there appears to be no good cause for changing the child’s surname is sufficient.

[¶ 25.] I also disagree that the trial court placed undue emphasis on the unilateral act of mother naming the child at birth. To begin with, the length of time the surname has been used is one of the Block v. Bartelt factors. The trial court did not simply say mother named the child at birth, instead it said the child has carried mother’s surname since birth (1) because she is the primary caretaker and (2) there is no good cause to change the name.


author: SABERS, Justice.

text:
    2005 SD 5
    STATE of South Dakota, Plaintiff and Appellee, v. Uriah TULLOUS, Defendant and Appellant.
    No. 23084.
    Supreme Court of South Dakota.
    Argued Nov. 15, 2004.
    Decided Jan. 12, 2005.
    Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Gregory P. Grajczyk, George B. Boos, Milbank, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Uriah Tullous was convicted of possession of a controlled substance (methamphetamine) and possession of two ounces or less of marijuana. He appeals, arguing the trial court erred in 1) refusing to suppress evidence seized under an invalid warrant; 2) refusing to suppress the bodily fluid evidence seized without a warrant; 3) refusing to grant a rehearing of the suppression motion; and 4) refusing to submit the misdemeanor ingestion issue to the jury.

FACTS

[¶ 2.] On March 10, 2003, law enforcement executed a search warrant at the home of Brad Hall. The warrant was issued on information from Hall’s girlfriend that drug activity was occurring at the home. When officers knocked on the door, Hall answered and allowed the officers in after learning of the search warrant. According to DCI Agent Reehtenbaugh, when Tullous saw police at the door, he ran toward the back of the trailer home. Agent Reehtenbaugh pursued him and testified that he saw Tullous toss something behind a dresser. After Tullous was caught and handcuffed, officers pulled the dresser away from the wall and saw an unused syringe. The search of the home uncovered methamphetamine, paraphernalia for smoking methamphetamine, and marijuana. All of the occupants of the house were arrested and charged with possession. Agent Reehtenbaugh testified that upon arrival' at the police station, he informed Tullous that he needed to provide a urine sample. Agent Reehtenbaugh noted that Tullous initially refused, but ultimately provided the sample. At the suppression hearing, Tullous testified that after he refused to provide a sample, the agent dropped the issue until Tullous later went to the restroom. He testified that while he was in the midst of urinating, the agent thrust a specimen cup into his urine stream and thereby forcibly retrieved the sample. Agent Reehtenbaugh testified at trial that he provided Tullous with the specimen cup, and then witnessed him urinating into the cup. Subsequent urinalysis revealed the presence of methamphetamine and marijuana. Tullous was charged by information with unauthorized possession of a controlled substance in violation of SDCL 22-42-5 and possession of less than two ounces of marijuana in violation of SDCL 22-42-6.

[¶ 3.] The evidence against the owner of the home, Hall, was suppressed because the search warrant was deemed insufficient. Tullous brought a motion to suppress the evidence in his case on the same grounds. The trial court (Judge Roehr for Judge Timm, who recused himself on the issue) denied the motion, holding that Tul-lous lacked “standing” to challenge the search of Hall’s home. The trial court’s determination was based upon its finding that Tina Hall, Brad Hall’s sister, was a more credible witness than Tullous. Tul-lous requested a rehearing, which was denied and the case was brought to jury trial. Prior to instructing the jury, Tullous requested that the court submit a misdemeanor ingestion instruction as a lesser included offense of the charge of possession. The trial court denied the request. Tullous was convicted on both counts and he appeals, raising four issues:

1. Whether the trial court erred in refusing to suppress evidence seized from the trailer based on a warrant determined to be invalid.
2. Whether the trial court erred in refusing to suppress bodily fluid evidence.
3. Whether the trial court erred in refusing to grant a rehearing of the suppression motion.
4. Whether the trial court erred in refusing to instruct the jury on misdemeanor ingestion as a lesser included offense of possession.

STANDARD OF REVIEW

[¶ 4.] “A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo.” State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). “The trial court’s findings of fact are reviewed under the clearly erroneous standard of review, but the application of a legal standard to those facts is a question of law, which we review de novo.” State v. Cummings, 2004 SD 56, ¶ 6, 679 N.W.2d 484, 486.

[¶ 5.] WHETHER THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS EVIDENCE SEIZED FROM THE TRAILER BASED ON A WARRANT DETERMINED TO BE INVALID.

[¶ 6.] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in then- persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV; See also S.D. Const. Art. VI, § 11. The United States Supreme Court has held that in determining whether a person may challenge a search or seizure, it must be established that the person had an expectation of privacy in the location searched or the item seized that society is willing to accept as reasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The inquiry centers on reasonableness and the person, rather than property interests. Id. It is well established that the protections of the Fourth Amendment are personal rights that accompany citizens regardless of their location. See e.g. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Therefore, if Tullous establishes that he had a reasonable expectation of privacy that society is willing to accept, he may challenge the search that led to discovery of the evidence used against him at trial.

[¶ 7.] Clearly, the owner or lessee of a home will have a reasonable expectation of privacy in their home that society is willing to accept. The question is less clear with regard to social guests present in that home at a time when a search warrant is executed. The Supreme Court has addressed this question in Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) and Minnesota v. Olson, 495 U.S. 91, 97-98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Most recently, this Court addressed the issue in State v. Hess, 2004 SD 60, 680 N.W.2d 314. Synthesizing these cases, it becomes clear that under the facts of this case, Tullous did have a reasonable expectation of privacy in Hall’s home.

[¶ 8.] In Olson, the Supreme Court held that law enforcement violated the Fourth Amendment by making a warrant-less, non-consensual entry into a house to arrest the defendant, who was an overnight guest. Olson, 495 U.S. at 93, 110 S.Ct. 1684. The Court noted:

Since the decision in Katz v. United States [ ] it has been the law that “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” [] A subjective expectation of privacy is legitimate if it is “one that society is prepared to recognize as reasonable.”

Id. at 95-96, 110 S.Ct. 1684 (internal citations omitted). The Court went on to hold, “[w]e need go no further than to conclude, as we do, that Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Id. at 96-97, 110 S.Ct. 1684.

[¶ 9.] In Carter, the Court held that defendants in a home for the sole purpose of bagging cocaine did not have a reasonable expectation of privacy in the home. Carter, 525 U.S. at 91, 119 S.Ct. 469. The Court noted that the defendants were present in the home for only a matter of hours and were there for a “business transaction.” Id. at 90, 119 S.Ct. 469. The Court held:

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Id. at 91, 119 S.Ct. 469. It was against this backdrop that this Court decided State v. Hess, 2004 SD 60, 680 N.W.2d 314. In Hess, the Court unanimously held that the defendant had a reasonable expectation of privacy in his girlfriend’s home such that he could contest the legality of a police search. In coming to that conclusion, the Court noted:

According to Professor LaFave, Olson amounts to a per se rule that one’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable .... Yet, it is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”

Id. ¶ 14 (quoting Wayne R. LaFave, 5 Search & Seizure § 11.3 (3d ed.)) (emphasis added). The majority writing in Hess strongly supports the proposition that a social guest has an expectation of privacy in the host’s home. The Court stated:

It is important to note that Carter was a plurality opinion in which Justice Kennedy provided the fifth vote necessary for a majority, writing in a special concurrence that, as a general rule, social guests will have an expectation of privacy in their host’s home. Id. at 102, 119 S.Ct. at 469 (Kennedy, J., concurring) (emphasis added). Justice Kennedy npted that the defendants in Carter were not social guests but had used the apartment merely as a processing station to prepare drugs for sale. Relying on the specific facts presented in Carter, Justice Kennedy concluded that the defendants were an exception to the rule that social guests will have an expectation of privacy. [ ] In summary, Minnesota v. Carter stands for the proposition that “parties who are in a residence for only a few hours, on ‘business,’ and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest the search of the premises (as opposed to their personal belongings).” . Whiteb-read and Slobogin, Criminal Procedure, An Analysis of Cases and Concepts 135 (4th ed. 2000).

Id. ¶ 15. The Court went on to note:

Following Carter, several decisions have recognized that social guests who fall somewhere between the overnight guest in Olson and a guest-simply permitted on the premises have a legitimate expectation of privacy and may mount a Fourth Amendment challenge to searches and seizures. [] Although it could be argued that this Court in Wes-terfield previously determined that an occasional guest has no reasonable expectation of privacy in property owned by another, that 1997 decision predated Carter.

Id. ¶ 16 (internal citations omitted). Testimony at the suppression hearing indicated that Tullous had ready access to the home, that Hall had shown him where he hid the house key and that Tullous had used the house key to enter the home when Hall was away. Testimony also indicated that Tullous regularly stayed overnight in the house and at times babysat for Hall in the house. The witness that the court relied upon for its determination that Tullous lacked “standing” testified that Tullous watched Hall’s children “once in awhile” and conceded that he could have stayed overnight at the residence without her knowing about it. She further testified that Hall and Tullous had been “good friends” for “a long time,” that they spent “quite a bit of time together,” that they “used to live by each other, ten, eleven years” and that Hall called Tullous by the nickname “Bubba.” Even the State’s evidence was that Tullous and Brad Hall were good friends who spent a lot of time together at Hall’s residence. Under this Court’s reasoning in Hess and the cases cited therein, Tullous was a regular “social guest” at the Hall home and therefore had a reasonable expectation of privacy in the home that society is willing to honor. The trial court erred in holding that Tullous lacked “standing” to contest the search. Tullous’s Fourth Amendment rights were violated by the illegal search of an area in which he had a reasonable expectation of privacy. Therefore, all the evidence obtained by the illegal search is ordered suppressed and the convictions are reversed.

[¶ 10.] In view of our holding on this issue, it is not necessary to reach issues 2, 3, and 4.

[¶ 11.] Reversed.

[¶ 12.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.