author: LARSON, Justice.

text:
    John D. DOE, Appellant, v. STATE of Iowa, Appellee.
    No. 04-0290.
    Supreme Court of Iowa.
    Oct. 6, 2004.
    Rehearing Denied Oct. 22, 2004.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Kristin W. Ensign, Assistant Attorney General, for appellee.
   LARSON, Justice.

John Doe has appealed from a district court ruling dismissing his petition for postconviction relief under Iowa Code chapter 822 (2003). We affirm.

I. Facts and Prior Proceedings.

Doe was convicted and sentenced in 1987 for first-degree burglary, Iowa Code §§ 713.1, 713.3 (1985), and third-degree sexual abuse, Iowa Code §§ 709.1(1), 709.4(1). He was sentenced to consecutive prison terms totaling thirty-five years. His expected discharge date is December 29, 2005. In 1998, after Doe’s commitment to prison, the Iowa legislature enacted Iowa Code chapter 229A, entitled “Commitment of Sexually Violent Predators” (SVPA), which applies to persons who fit the definition of “Sexually Violent Predator[s].”

It is undisputed that Doe is confined for a “sexually violent offense” because Iowa Code section 229A.2(10)(a) defines the term as any act violating Iowa Code chapter 709. A prisoner meeting the definition of a sexually violent predator is subject to possible -confinement after termination of his sentence. See Iowa Code § 229A.4. Although the SVPA was enacted after Doe’s commission of the crimes, we have upheld the constitutionality of that act under an ex post facto challenge. See In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000) (holding the SVPA to be civil, not criminal, and therefore not subject to ex post facto attack).

Under the SVPA, a person who is presently confined for a sexually violent crime must be assessed to determine if he is a sexually violent predator, who is defined as

a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(11). We have defined “mental abnormality” as “an inability to control sexually dangerous behavior,” In re Detention of Ewoldt, 634 N.W.2d 622, 623 (Iowa 2001), and defined it further as:

“[A] congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.”

In re Detention of Barnes, 658 N.W.2d 98, 101 (Iowa 2003) (quoting Thomas v. Missouri, 74 S.W.3d 789, 792 (Mo.2002)).

In Iowa the procedure for determining if a prisoner is subject to the SVPA is detailed in the statute. Under section 229A.3(1), if a confined person appears to meet the statutory definition of a sexually violent predator, the “agency with jurisdiction” of the person (here, the prison) is to give written notice to the attorney general and a multidisciplinary team no later than ninety days prior to the inmate’s anticipated discharge date, so an investigation may be conducted. The multidisciplinary team, under section 229A.3(4), “may include individuals from other state agencies” to review the records of the individual referred to the team by prison officials. Within thirty days of receiving the notice, the team is to assess whether the person meets the definition of a sexually violent predator, Iowa Code § 229A.3(4), and notify the attorney general of its assessment. Id. The attorney general is then to appoint a “prosecutor’s review committee” to review the person’s records and “assist the attorney general in the determination of whether or not the person meets the definition of a sexually violent predator.” Iowa Code § 229A.3(5).

The multidisciplinary team referred Doe’s case to the attorney general in August 2001, but as of the date Doe filed his postconviction petition on October 17, 2003, the attorney general had not yet acted on the recommendation.

Doe complains that the attorney general’s failure to act on the team’s recommendation has denied him the right to be considered for early release. He cites no statutory authority to support his argument but instead points to an Iowa Department of Corrections (DOC) policy that, he claims, denies him the right to be considered for release prior to his proposed discharge date. According to Doe, that policy, which was adopted after his offense was committed, increases the penal consequences of his criminal act and, therefore, violates the ex post facto provisions of the United States and Iowa Constitutions. In addition, Doe contends the DOC policy changes the terms of his sentence and therefore violates constitutional separation-of-powers principles.

The DOC policy was adopted in May 1999 as an intra-agency procedure to be followed when an inmate is considered for treatment as a sexually violent predator. See Div. of Insts., State of Iowa Dep’t of Corrs., Evaluation of Sex Offenders for Parole Placement Work Release and OWI, Policy No. IN-V-47-2 (May 1999). Division V of that policy, entitled “Director’s Review Committee Options,” states:

a. Cases meeting the criteria for referral to the Multidisciplinary Team will be scheduled by the classification manager for review when the offender has not less than 90 days remaining on their sentence.
b. Cases not meeting the MDT referral criteria may be considered for referral by the Institutional Classification Committee to the Iowa Board of Parole for work release or parole placement.

Doe contends that the implication of these two subparagraphs is that, because he meets the criteria for referral to the multidisciplinary team under subparagraph (a), he is automatically excluded from subpara-graph (6) as a member of “the class of persons eligible for parole or other early release.”

We initially question the factual basis for Doe’s argument that he has been denied a timely decision on whether he qualifies for consideration for possible work release. Under the statute, prison officials are not required to initiate any inquiry regarding the inmate’s classification for SVPA purposes until ninety days prior to the inmate’s anticipated discharge date. See Iowa Code § 229A.3(1). Because Doe’s anticipated discharge date is not until December 29, 2005, the referral of his case to the attorney general was well before the ninety days provided by statute. Any deprivation of Doe’s consideration for early release has therefore been visited upon him by the statute — not the DOC policy. Despite our doubts about the factual predicate for Doe’s argument, we address his constitutional challenges.

II. The State’s Motion to Dismiss.

We first address the State’s motion to dismiss, which asserted that Doe’s petition failed to state he “has been or will be kept beyond his discharge date.” The district court agreed with the State and ruled that Doe’s claim for postconviction relief was premature. Doe filed a motion under Iowa Rule of Civil Procedure 1.904(2), asking the court to amend its ruling to address the ex post facto and separation-of-powers violations alleged in his postconviction application. While the district court denied the motion to amend, Doe’s motion requesting the court to consider his constitutional issues was sufficient to preserve them for appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (‘When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.”).

III. Resolution.

A. The ripeness argument. The State argues that, until Doe has been denied an early release, he cannot press his claims on the constitutionality of the DOC policy. However, Doe does not claim a present deprivation of release. Rather, he claims that the effect of the DOC rule is to remove him from the class of inmates who may be considered for early release. That claim is ripe for our consideration. We disagree with the State and the district court on the ripeness issue.

B. The ex post facto argument. Doe argues that, as applied to him, the DOC policy violates the ex post facto clauses of the federal and state constitutions. See U.S. Const, art. I, § 10; Iowa Const, art. I, § 21. We have said “[t]he ex post facto clauses of the federal and state constitutions forbid enactment of laws that impose punishment for an act that was not punishable when committed or that increases the quantum of punishment provided for the crime when it was committed.” State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997) (citing Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 22 (1981)).

Although Doe does not challenge a statute or a formally adopted adniinistra-tive rule, administrative actions in parole cases may nevertheless implicate ex post facto issues. See, e.g., Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 173 (7th Cir.1979) (“What Congress cannot do directly,, it cannot do by delegation.”). However, not all administrative policies that postdate an inmate’s offense run afoul of the Ex Post Facto Clause. For example, in Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), the Supreme Court rejected an ex post facto challenge to a parole rule. In that case, an inmate challenged a parole board’s rule, amended after sentencing, that changed the frequency of parole hearings. The inmate contended the change — from three years to eight years between hearings— violated ex post facto principles. Under Georgia law, the state parole board had discretion to set the intervals, up to eight years, between hearings. Garner, 529 U.S. at 254, 120 S.Ct. at 1369, 146 L.Ed.2d at 246-47. The Court noted that ex post facto principles are less stringent in cases of parole eligibility than in others:

[T]o the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that [the parole board] has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors, will inform parole decisions....
The particular case of respondent well illustrates that the Boards Rule changes are designed for the better exercise of the discretion it had from the outset.

Id. at 253-55, 120 S.Ct. at 1369-70, 146 L.Ed.2d at 246-47 (citations omitted and emphasis added).

In Neal v. Shimoda, 131 F.3d 818 (9th Cir.1997), the court upheld a law postponing parole eligibility for sex offenders. The petitioner had been convicted of attempted rape in 1984 and was to become eligible for parole in 1998. In 1992 Hawaii’s legislature enacted a sex-offender treatment statute. Under that statute, sex offenders in custody are required to complete a twenty-five-session psychoeduca-tional treatment program in order to be eligible for parole. Neal, 131 F.3d at 821-22. The petitioner challenged the statute on the ground that making program completion a requirement of parole eligibility made the punishment more onerous and therefore violated the Ex Post Facto Clause. Id. at 826. The court rejected the argument, reasoning that,

[i]f involuntary confinement in a “treatment facility” for an indefinite period of time beyond the inmate’s original sentence is not punishment, then it is certainly not punishment to deny an inmate eligibility for parole following his classification as a sex offender so that he can participate in a treatment program.

Id. at 827. The court continued:

The [sexually violent predator act] “does not criminalize conduct legal before its enactment.” Prison officials are allowed to consider both conduct for which the inmate was convicted as well as other conduct for which the inmate was ... never charged at all. According to the Supreme Court, this is evidence that the treatment program is intended to be rehabilitative, not retributive. And there can be no serious dispute that the primary, if not the only, reason parole eligibility is denied to inmates ... is so they can complete the prison’s extensive treatment program for sex offenders.

Id. (citations omitted). Based on this reasoning, the court held that the program was not punishment, and therefore, retroactive application was not unconstitutional. Id.

We conclude that the DOC screening policy is a reasonable and integral prerequisite for the application of our SVPA, and the policy, like the SVPA itself, does not violate the ex post facto doctrine. It is, rather, one of the “complex of ... factors” that justifies retroactive application of the DOC policy. See Garner, 529 U.S. at 253, 120 S.Ct. at 1369, 146 L.Ed.2d at 246.

C. Separation-of powers violation. The Iowa Constitution provides:

The powers of the government of Iowa shall be divided into three separate departments — the Legislative, the Executive, and the Judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.

Iowa Const, art. Ill, § 1. “This principle is violated if one branch of government purports to use powers that are clearly forbidden, or attempts to use powers granted by the constitution to another branch.” State v. Phillips, 610 N.W.2d 840, 842 (Iowa 2000) (citing In re C.S., 516 N.W.2d 851, 858 (Iowa 1994)).

Although the distinction between the executive and judicial powers is often unclear, they do differ. The executive department has the general power to execute and carry out the laws; the judicial department has the power to interpret the constitution and laws, apply them, and decide controversies.

City of Cedar Falls v. Flett, 380 N.W.2d 251, 254-55 (Iowa 1983).

Doe argues that the DOC’s screening procedure “constitute[s] an attempt by the Executive Branch ... to alter the sentence imposed by the Judicial Branch.” Sentencing, of course, is a judicial function. See State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (“Although the legislature prescribes the punishment for crimes, the actual sentencing of a defendant is an independent function that is the sole province of the judiciary.”); State v. Longo, 608 N.W.2d 471, 475 (Iowa 2000) (“sentencing is the sole prerogative of the judge”). “Because sentencing falls within the realm of judicial power, any encroachment on this power is a violation of the separation-of-powers doctrine.” Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 261-62 (Iowa 2002).

Sentencing and parole, however, are different matters. While sentencing “ ‘relates to judicial action taken before the prison door is closed,’ ” see id. at 262 (quoting State v. Wright, 202 N.W.2d 72, 76 (Iowa 1972)) (emphasis omitted), the “parole system is solely a creature of the legislature.” Phillips, 610 N.W.2d at 842 (finding that the legislature has the power to limit or even preclude parole, for persons found guilty of certain crimes). Through the act of delegation, parole decisions are typically made by “executive or administrative action taken after the door has been closed on the convict.” Klouda, 642 N.W.2d at 262 (citations omitted); see Iowa Code § 906.3 (1986) (vesting the power to determine if prisoners qualify for early release in the board of parole, an executive agency). Thus, in Iowa, most parole decisions are legitimately within the discretion of the executive branch.

The DOC screening policy does not purport to deal with the length of an inmate’s sentence; it simply establishes a procedure for determining the inmate’s status vis-a-vis the SVPA. The policy does not in any sense usurp the sentencing authority of the court and does not violate the Separation of Powers Clause. We affirm on this issue as well.

AFFIRMED.


source: Caselaw Access Project

author: WIGGINS, Justice. CADY, Justice

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Ryan Lynn KLAWONN, Appellee.
    No. 03-1118.
    Supreme Court of Iowa.
    Oct. 22, 2004.

      Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeff Noble, Assistant County Attorney, for appellant.
    Maggi Moss and Matthew Oetker of Parrish Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for appellee.
   WIGGINS, Justice.

Ryan Lynn Klawonn filed a petition asking the district court to reduce a previous order of restitution entered under chapter 910 of the Iowa Code by the amount his insurance carrier paid in a settlement of a civil action arising out of the same facts or event as the criminal proceeding. The district court reduced the order of restitution by the subsequent settlement amount and modified the order of restitution. Because we hold a settlement obtained in a civil action arising out of the same facts or event as a previous criminal proceeding reduces a prior order of restitution, we affirm the judgment of the district court.

I. Background Facts and Procedure.

On November 22, 1997, Klawonn sped through an intersection and collided with a vehicle driven by Nathaniel Boykin. Boy-kin died as a result of the injuries he received in the collision. The State charged Klawonn with vehicular homicide, but Klawonn later pled guilty to involuntary manslaughter in violation of Iowa Code section 707.5(1) (1997). On March 19, 1999, the district court gave Klawonn a suspended sentence and placed him on probation for two years. Additionally, Klawonn was ordered to pay $4,702.23 in pecuniary damages to the victim’s widow, Velma Boykin (Boykin), $5,000 to the Iowa Crime Victim Compensation Program, and $150,000 to the Nathaniel Boykin Estate (Estate) in restitution as required by Iowa Code section 910.3B (1999).

Klawonn appealed the restitution order, challenging the constitutionality of the $150,000 order of restitution. State v. Klawonn, 609 N.W.2d 515 (Iowa 2000). We affirmed the restitution award, holding it did not constitute an excessive fine, violate notions of double jeopardy, or violate procedural or substantive due process rights. Id. at 522.

On March 3, 1999, before the district court entered its restitution order, Boykin filed a civil wrongful death action against Klawonn. She filed the action individually and as personal representative of the Estate. Count I of Boykin’s petition alleged a claim of negligence against Klawonn and sought damages for pain and suffering, physical and mental injuries, loss to the Estate due to premature death, actual expenses, and the present value of the amount the Estate would have accumulated. Count II of the petition prayed for damages sustained by Boykin because of her loss of spousal consortium.

Klawonn’s auto insurance carrier defended the civil action. The parties entered into a settlement. Boykin signed a general release stating she received $275,000 from Klawonn and in return, Boy-kin, individually, and as personal representative of the Estate would “release and forever discharge [Klawonn] from any and all causes of action and claims for or by reason of any damage, loss, suffering or injury to persons and property ... sustained by anyone in consequence of this incident and injury, including claims for loss of consortium.” On August 9, 2000, Boykin dismissed the civil action against Klawonn with prejudice.

Klawonn filed a motion to modify the restitution order entered in the criminal action to reflect the payments received by Boykin and the Estate in the civil action. The district court reduced the restitution order by the amount received by Boykin and the Estate in the civil action. The State applied for discretionary review of the district court’s ruling, which we granted.

II. Issue.

We must determine whether a settlement made in a civil action arising out of the same facts or event as the prior criminal proceeding reduces the amount due to the victim under the restitution order, which imposed a $150,000 payment of restitution under Iowa Code section 910.3B(1).

III. Scope of Review.

Our review of a restitution order is for correction of errors at law. State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998). When reviewing a restitution order, “we determine whether the court’s findings lack substantial evidentiary support, or whether the court has not properly applied the law.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).

IV. Analysis.

The $150,000, which the district court ordered Klawonn to pay to the Estate, is restitution under Iowa Code section 910.3B(1), which provides in relevant part:

In all criminal cases in which the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person, in addition to the amount determined to be payable and ordered to be paid to a victim for pecuniary damages, as defined under section 910.1, and determined under section 910.3, the court shall also order the offender to pay at least one hundred fifty thousand dollars in restitution to the victim’s estate.

Iowa Code § 910.3B(1) (emphasis added). We have previously held the $150,000 restitution awarded under this section is a fine. State v. Izzolena, 609 N.W.2d 541, 549 (Iowa 2000); Klawonn, 609 N.W.2d at 518-19. Section 910.3B(1) is clear and unambiguous that the $150,000 awarded as restitution is in addition to pecuniary damages defined under section 910.1 and determined under section 910.3. Iowa Code § 910.3B(1). Therefore, the common-law rules prohibiting double recovery of damages do not apply to the $150,000 restitution awarded under section 910.3B(1). Cf. State v. Paxton, 674 N.W.2d 106, 108-11 (Iowa 2004) (holding pecuniary damages under section 910.1(3) are limited to those damages that a victim could recover against the offender in a civil action; thus, the common-law rules of set off apply to prevent a double recovery).

Iowa Code chapter 910 provides “any restitution payment by the offender to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.” Iowa Code § 910.8. While this section credits any restitution payment against a judgment a victim receives in a subsequent civil action arising out of the same facts or event, this provision does not address whether a settlement of a civil action arising out of the same facts or event must be credited against the prior order of restitution.

Because Iowa Code chapter 910 does not expressly address the situation before us, we must attempt to determine the result intended by the legislature. If the statutes are not clear, we look to other indicia of legislative intent, including the subject matter of the act, the object to be accomplished, and the purpose of the act. Case v. Olson, 234 Iowa 869, 872-73, 14 N.W.2d 717, 719 (1944).

Restitution has a two-fold purpose: (1) to protect the public by compensating victims for criminal activities; and (2) to rehabilitate the offender by instilling responsibility in the offender. Izzolena, 609 N.W.2d at 548. Additionally, a restitution award contains several punitive elements. Id. Typically, a victim does not file a civil action against an offender because an offender usually does not have the means or insurance coverage to satisfy a civil judgment. The $150,000 in restitution awarded under section 910.3B is considered punishment to the offender and compensation to the victim’s family. Klawonn, 609 N.W.2d at 520.

In those cases where the offender has the means to pay the $150,000 of restitution ordered by the court under section 910.3B prior to the entry of a civil judgment arising out of the same facts or event as the criminal prosecution, a subsequently obtained civil judgment will be reduced by the $150,000 restitution payment made by the offender. Iowa Code § 910.8. In other words, in situations where the offender has the means to pay his or her restitution, the legislature has limited the victim’s total recovery to the damages awarded in the civil action. It appears the purpose of this legislative scheme is to coordinate restitution with civil damage awards in order to prevent a victim from receiving a windfall of $150,000 awarded to the victim under section 910.3B(1) in addition to the collectible damages recoverable by a judgment entered in the civil action.

In the present case, the release agreement by its terms released and forever discharged Klawonn “from any and all causes of action and claims for or by reason of any damage, loss, suffering or injury to persons and property ... sustained by anyone in consequence of this incident and injury, including claims for loss of consortium.” Boykin entered into the release agreement individually and as personal representative of the Estate. We interpret settlement agreements according to the intent of the parties as determined by the terms of the release. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 572 (Iowa 1997). Although Boykin could have preserved the Estate’s right to receive the payments ordered by the court in its order of restitution as additional consideration for the release, she failed to do so. Under the plain terms of the release, Boy-kin accepted the $275,000 as full satisfaction of any damages she or the Estate may be entitled to from Klawonn as a result of her husband’s death. Her release of the claims against Klawonn has no effect on the criminal order of restitution. Abeyta v. State, 42 P.3d 1009, 1013 (Wyo.2002) (holding “[wjhere restitution is imposed as part of a criminal sentence, it is not a debt between the defendant and the victim, and agreements between those parties have no effect on a sentencing courts order of restitution except to the extent that the statute requires offset”). The settlement, however, was equivalent to a final judgment in the civil action because it covered all damages she and the Estate could have recovered in the civil action without reserving any claims or damages.

Under these facts, if the settlement is not used to reduce the order of restitution, Boykin will collect the compensable damages she would have been entitled to if her civil action was reduced to judgment, plus the $150,000 Klawonn was ordered to pay as additional restitution under section 910.3B(1). Under section 910.8, if Kla-wonn did not settle the lawsuit but allowed it to proceed to final judgment and paid the $150,000 in restitution he was ordered to pay under section 910.3B(1) prior to the civil action being reduced to judgment, Boykin and the Estate would only be allowed to recover the damages awarded in the civil action. Iowa Code § 910.8. We do not think the timing of Klawonn’s restitution payments should entitle Boykin and the Estate to a $150,000 windfall. This result is consistent with the legislative intent to coordinate criminal restitution under section 910.3B(1) with Iowa’s civil damage scheme. See Iowa Code § 910.8.

Having determined the settlement in this case is equivalent to a final judgment, it would be an absurd result to allow an offender who has paid his or her court-ordered restitution to offset the restitution against a subsequent civil judgment, while prohibiting a person from setting off the final settlement of a civil action arising out of the same facts or event as the prior criminal proceeding against amounts ordered as restitution. We should not interpret our statutes to provide absurd results, and construing chapter 910 in a way that allows set offs based on the timing of the payments and the method of recovery creates an absurd result. See State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003). Therefore, the district court was correct when it permitted the settlement made by Kla-wonn’s insurance company on his behalf to be set off against $150,000 order of restitution.

V. Disposition.

Because the payments received by Boy-kin and the Estate from the settlement of the civil action exceeded the amount due under the restitution order entered by the district court, the restitution order as it relates to Boykin and the Estate has been paid in full, and the judgment of the district court is affirmed.

AFFIRMED.

All justices concur except LAVORATO, C.J., and LARSON, J., who take no part and CADY, J., who dissents.

CADY, Justice

(dissenting).

I respectfully dissent. Although the set-off rule of section 910.8 is clearly limited by its language to judgments, the majority ultimately concludes it is required to interpret the statute to include settlements to prevent the statute from achieving an absurd result. I would limit the statute to its plain language, as courts are required to do, because this plain language does not in any way create an absurd result.

I agree with the majority that the purpose of the statute is to prevent a financial windfall for the plaintiff and, conversely, avoid the imposition of an additional financial hardship on the defendant. Yet, the statute does not need to be read to include settlements to accomplish this purpose. The reason is that, absent a statute or court order, a restitution order entered in a criminal case is unaffected by any judgment entered in a civil case arising out of the same facts and circumstances. The order and judgment are both enforceable court orders. Thus, to prevent the windfall that would otherwise result, our legislature provided for a setoff. However, if a civil action is concluded by settlement instead of a judgment, the parties to the settlement can include the necessary provisions in the settlement agreement to prevent any windfall. For example, the settlement agreement could include a provision that the first $150,000 of the settlement proceeds would be paid to the plaintiff through the clerk of court or other person designated under the restitution order so the defendant would receive a credit on the restitution.

The problem with the majority’s conclusion is twofold. For all we know, because the settlement agreement contained no special provisions, the parties to the settlement agreement in this case could have intended for both orders to be satisfied. Thus, the majority not only interferes with the role of the legislative branch in this case by adding language to the statute, it may also have interfered with the rights of the parties to contract. In short, the statute does its intended job, and we should apply it as written.


author: /s/ Helen M. Meyer Associate Justice

text:
    Clara WENSMAN, Respondent, v. ORDER OF ST. BENEDICT/ST. JOHN’S UNIVERSITY, Self-Insured, and BRAC, Administrator, Relators, and Center for Diagnostic Imaging, St. Cloud Orthopedics, and Medicare, Intervenors.
    No. A04-1463.
    Supreme Court of Minnesota.
    Oct. 27, 2004.
    Edward Q. Cassidy, Karen M. Charlson, Felhaber Larson Fenlon & Vogt, St. Paul, for Relator.
    Ronald Drewski, Drewski & Lindberg, Sauk Rapids, for Respondent.
   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 14, 2004, 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/ Helen M. Meyer Associate Justice


text:
    John T. KOWALIK, Respondent, v. MARTINSON CONSTRUCTION, Uninsured, Respondent, and Schuett Construction, Uninsured, Respondent, and Minnesota Department of Human Services and HealthPartners, Inc., Intervenors, and Special Compensation Fund, Relator.
    No. A04-1436.
    Supreme Court of Minnesota.
    Oct. 27, 2004.
    Edward Q. Cassidy, Karen M. Charlson, Felhaber Larson Fenlon & Vogt, St. Paul, MN, for Relator.
    Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for Respondent.
   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 8, 2004, 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

MEYER, J., took no part in the consideration or decision of this case.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Bruce Ray FAIRBANKS, Appellant.
    No. A04-983.
    Court of Appeals of Minnesota.
    Nov. 2, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, Anoka, MN, for respondent.
    John Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; LANSING, Judge; and HARTEN, Judge.
   OPINION

LANSING, Judge.

On remand following appeal, the district court reduced Bruce Fairbanks’s kidnapping sentence from 480 months to 240 months, but ordered that he serve it consecutively to his 240-month assault sentence. Fairbanks appeals, contending that the combined upward durational departure and consecutive sentence is not supported by severe aggravating circumstances and that the sentence is constitutionally invalid under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We vacate the sentence and remand for proceedings consistent with Blakely.

FACTS

Bruce Fairbanks appealed his conviction and sentence for first-degree assault against a correctional employee in violation of Minn.Stat. § 609.221, subd. 2 (1998), and kidnapping in violation of MinmStat. § 609.25, subd. 1(1) (1998). State v. Fairbanks, No. C0-02-1576, 2003 WL 21911109 (Minn.App. Aug. 12, 2003) (Fairbanks I), review denied (Minn. Oct. 21, 2003). We affirmed the sufficiency of the evidence to prove the requisite intent for the assault charge. But we remanded to the district court for reconsideration of the 480-month sentence for kidnapping based on the Minnesota Supreme Court’s intervening decision in Neal v. State, 658 N.W.2d 536 (Minn.2003), which cautioned against sentences approaching the statutory maximum absent severe aggravating circumstances. Fairbanks I, 2003 WL 21911109, at *5 (citing Neal, 658 N.W.2d at 546).

On remand, the district court replaced the concurrent 240-month and 480-month sentences for the assault and kidnapping, respectively, with consecutive 240-month sentences. To support the greater-than-double departure on the kidnapping sentence, the court relied on Minn.Stat. § 609.1095, subd. 2 (2002), and four additional factors: the victim was particularly vulnerable; Fairbanks treated the victim with particular cruelty; he engaged in a significant amount of planning prior to the incident; and his actions placed multiple persons at risk.

In this second appeal, Fairbanks challenges the adequacy of the aggravating circumstances to support the combined upward durational departure and consecutive sentence and the constitutionality of his sentence under Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

ISSUE

Does the district court’s upward departure on the kidnapping sentence violate appellant’s Sixth Amendment right to a jury trial?

ANALYSIS

The district court’s 240-month sentence for Fairbanks’s kidnapping offense is based on a double upward departure under Minn.Stat. § 609.1095, subd. 2 (2002), and additional circumstances, which the court determined to be severe, aggravating factors. Fairbanks’s sentence for first-degree assault of a correctional employee is also a double departure from the guidelines sentence.

Subsequent to the district court’s resen-tencing in response to Fairbanks I, the United States Supreme Court released Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Blakely decision refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that the Sixth Amendment requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63).

In supplemental briefing Fairbanks and the state presented arguments on whether Blakely applies to Fairbanks’s sentence. The court in Blakely, addressing the Washington criminal code, interpreted “statutory maximum” to mean “not the maximum sentence a judge may impose after finding additional facts, but the maximum [the judge] may impose without any additional findings.” Id. at 2537. Thus, under Blakely, an upward sentencing departure under a statutory framework materially comparable to the Washington criminal code may not rely on judicially determined facts; a jury must find the facts that support the upward departure. Id. at 2538.

The state argues that Blakely does not apply to Fairbanks’s sentence because (1) the Washington guidelines, unlike Minnesota’s, are legislatively rather than administratively determined; (2) Fairbanks waived his right to be sentenced by a jury when he submitted his case on stipulated evidence; and (3) Fairbanks is not entitled to the benefit of the Blakely holding. We address each of these arguments.

First, this court recently held that Minnesota’s sentencing guidelines, like Washington’s, are susceptible to a Blakely analysis. See State v. Conger, 687 N.W.2d 639, 644, 2004 WL 2340067, at *4 (Minn.App. 2004) (stating that, while Minnesota guidelines are advisory rather than mandatory like Washington’s, any departure from a presumptive, fixed sentence ultimately requires factual findings in support of the increased sentence). But the state’s argument also fails because the district court based Fairbanks’s consecutive sentence on section 609.1095, subdivision 2. See State v. Rachuy, 502 N.W.2d 51, 52 (Minn.1993) (stating that the career-offender provision, which is currently codified with the dangerous-offender provision at Minn.Stat. § 609.1095, subd. 4, provides the district court with “a legislatively-created ground” for sentencing); State v. Mitchell, 687 N.W.2d 393, 399, 2004 WL 2283396, at *5 (Minn.App. 2004) (noting that “career-offender statute establishes a ‘legislatively created ground’ for departure”).

The dangerous-offender subdivision provides for a durational departure from the sentencing guidelines for a defendant, at least eighteen years old, who has two or more convictions for violent crimes and is found to be “a danger to public safety.” Minn.Stat. § 609.1095, subd. 2. The danger-to-public-safety finding may include “past criminal behavior” or “the fact that the present offense of conviction involved an aggravating factor.” Id., subd. 2(2)(i), (ii). While the stipulated facts of Fairbanks’s trial could permit a simple finding of “past criminal behavior,” we conclude that the statutory provision that the defendant’s criminal behavior have a “high frequency rate” or “long involvement” in criminal activity requires additional factual findings. And the district court linked the danger-to-public-safety finding with several aggravating factors, including the victim’s particular vulnerability, Fairbanks’s particular cruelty, the significant amount of planning behind the incident, and the risk to which he exposed multiple persons. None of these factors is based exclusively on stipulated facts. Because the district court relied on statutory factors that were not a part of the stipulated trial facts, we conclude that Fairbanks’s Sixth Amendment rights must be examined in light of Blakely.

Second, we reject the state’s argument that Fairbanks’s waiver of his right to trial by jury should be extended to the sentencing proceeding, and that in submitting stipulated facts to the court, Fairbanks thereby waived his right to have findings incident to that process decided by a jury. The waiver signed by Fairbanks states in full: “Having been advised by the Court of my right to trial by jury and having had an opportunity to consult with counsel, I do hereby, with the approval of this Court, waive my right to trial by jury.” This document incorporates by reference Minn. R.Crim. P. 5.04, subd. 3, and Minn. R.Crim. P. 26.01, subd. l(2)(a), both of which refer specifically to a defendant’s waiver of jury trial and neither of which makes any reference to sentencing.

“A defendant may waive the right to a jury trial, but the waiver must be knowing, intelligent, and voluntary.” State v. Whitley, 682 N.W.2d 691, 696 (Minn.App.2004) (holding that waiver of right to jury trial on criminal charge did not constitute waiver for purposes of sentencing enhancement under statute mandating increased sentences for certain patterned and predatory sex offenders, and remanding for sentencing not inconsistent with Blakely). We find nothing in the record to indicate that Fairbanks knowingly waived his right to a jury determination of the facts supporting the imposition of an aggravated sentence.

Third, and finally, we believe that Fairbanks is entitled to the benefit of Blakely even though he did not assert his Sixth Amendment rights at trial by objecting on Apprendi grounds. “[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (recognizing Apprendi as a new rule of law). In defining “pending,” the court looked to whether the defendant’s judgment of conviction has been rendered, and all rights to appeal and certiorari have been exhausted. Id. Because this is a direct appeal, taken from the court’s re-sentencing, it is subject to the Supreme Court’s recent ruling, and Fairbanks has squarely raised the issue in this appeal. Cf. State v. Leja, 684 N.W.2d 442, 447 n. 2 (Minn.2004) (noting that failure to challenge sentence on Apprendi grounds on appeal waives issue). We therefore vacate Fairbanks’s sentence and remand to the district court for further proceedings.

DECISION

The district court violated appellant’s Sixth Amendment right to a jury trial by imposing an upward departure on his kidnapping sentence based on judicially found facts. Fairbanks did not knowingly waive his right to have a jury determine those facts, and he is entitled to relief even though he did not object in the district court on constitutional grounds. Accordingly, we vacate Fairbanks’s sentence and remand for resentencing consistent with this opinion.

Vacated and remanded.


author: KALITOWSKI, Judge.

text:
    STATE of Minnesota, Respondent, v. Ross Adam SAUE, Appellant.
    No. A03-1182.
    Court of Appeals of Minnesota.
    Nov. 2, 2004.

      Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, St. Paul, MN; and Dwayne Knutsen, Chippewa County Attorney, Montevideo, MN, for respondent.
    John M. Stuart, State Public Defender, John E. Mack, Special Assistant Public Defender, Mack & Daby P.A., New London, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.
   OPINION

KALITOWSKI, Judge.

Following a jury trial in which he was convicted of third-degree assault, appellant Ross Adam Saue argues that the upward dispositional and durational sentencing departures were based on judicial findings and therefore violate his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S.Ct. 2531 (2004).

FACTS

On the night of August 29, 2002, Jeffrey Barrett and Marlee Nebben were confronted by Barrett’s landlord, who had been attempting to evict Barrett. After Barrett pulled a knife, the landlord and another man jumped on Barrett, knocked the knife out of his hand, and started punching and beating him. The fight left Barrett “beaten up, bloody, and very angry.” Nebben noticed that Barrett had bruises on both of his eyes, an egg-sized lump above one of his eyes, a mouthful of blood, and bruises and scrapes all over his body.

Meanwhile, many people had congregated near the area to watch the fight. After a brief argument between Barrett and Nebben, one of the onlookers chased after Barrett, tackled him, and threw him to the ground. Barrett hit his head on the cement, but managed to get up and flee in the direction of the railroad tracks. Four individuals chased after Barrett, and one of them caught up with Barrett by the railroad tracks, where he punched him down to the ground, and kicked him several times in the chest area. Nebben testified that at this point Barrett was “beaten up pretty badly.” He had a black eye, a huge bump above his right eye, and his mouth and nose were bleeding. Most of the onlookers left, and Nebben saw Barrett running away.

Some of the onlookers told appellant Ross Saue and another individual, who were riding by in a car, that Barrett had pulled a knife on his landlord and had beaten up his girlfriend. Appellant and the other individual looked for but did not find Barrett. They were subsequently told that someone had spotted Barrett walking down Main Street looking “like he was tired” and “walking really slow.” Appellant and four other individuals went looking for Barrett.

When the group spotted Barrett, they confronted him and chased him when he ran. Appellant and two other persons caught up with Barrett in a nearby skateboard park. Appellant told police that he caught Barrett, tackled him, dragged him to the ground, and kneed him in the face. All three proceeded to beat Barrett, kicking and punching him. Barrett was approximately five feet four inches tall and weighed between 117 and 130 pounds. In contrast, the three persons were all approximately six feet tall and weighed about 175 to 200 pounds. At trial, several people testified that at the end of the beating, as the other two persons were walking to the car, appellant stomped on Barrett. Barrett’s body jerked forward and then went limp. But appellant testified that he stopped beating Barrett first and then called to the others to stop and leave.

One of the onlookers gave appellant a ride to her home, where he fell asleep. Meanwhile, the other two persons who had previously beaten Barrett returned to the skateboard park, where they picked up Barrett, shoved him into the car, and continued to beat him. Eventually, the two individuals pulled Barrett out of the car, continued beating him on the side of the road, and urinated on him before leaving. Later, the two individuals — with the help of two others — -returned to the dirt road, located Barrett’s body, drove to a gravel pit pond, and threw Barrett’s body in the pond.

The autopsy report concluded that Barrett died of homicidal violence as a result of a beating. At the time of his death, Barrett had a blood alcohol concentration of .145. Appellant was charged with aiding and abetting second-degree intentional and felony murder, and was later indicted on charges of second-degree unintentional felony murder and first-degree assault.

The jury found appellant guilty of third-degree assault, a lesser-included offense, but acquitted him of all other charges. Prior to sentencing, the state moved for an upward dispositional and durational departure, which appellant opposed. Finding severe aggravating factors and substantial and compelling reasons justifying a dura-tional and dispositional departure, the district court sentenced appellant to 60 months in prison, the statutory maximum sentence. Because appellant had no criminal history points, the presumptive sentence for his third-degree assault conviction was a stayed sentence of one year and one day.

ISSUES

1. Did the district court violate appellant’s right to a jury trial by imposing an upward durational departure based on judicial findings?

2. Did the district court violate appellant’s right to a jury trial by imposing an upward dispositional departure based on judicial findings?

ANALYSIS

I.

Appellant argues that the upward durational departure imposed on him, based on the district court’s findings of aggravating factors, violates the Supreme Court’s holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). See id. at 2537 (applying the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to Washington state sentencing guidelines). A decision to depart from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But appellant’s challenge to the sentence imposed on him under the sentencing guidelines raises a constitutional issue. 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).

The Minnesota Legislature created the Minnesota Sentencing Guidelines Commission in 1978 to develop sentencing guidelines for the district courts. MinmStat. § 244.09, subd. 5 (1978). The guidelines were to be promulgated on or before January 1, 1980, and were to be “advisory to the district court.” Id. They were to provide for a presumptive sentence and to allow for upward or downward departures of up to 15% from the presumptive sentence. Id., subd. 5(2). Thus, although the Minnesota guidelines are administrative rather than statutory in operation, they were developed under legislative mandate, and established various sentencing procedures for the district courts. See Minn. Stat. § 244.09, subd. 5 (2002) (providing that the guidelines are advisory but the sentencing court “shall follow” the guidelines procedures when pronouncing sentence in a felony case).

The district court sentenced appellant to an executed sentence of 60 months, which represented an upward dispositional departure and a quintuple upward dura-tional departure from the presumptive stayed sentence of a year and a day. To support the departure, the court cited the particular vulnerability of the victim, the particular cruelty of the acts committed by appellant, and the participation of three or more persons in committing the crime. See Minn. Sent. Guidelines II.D.2.b.(l), (2), (10). These aggravating factors, all recognized grounds for departure under the guidelines, were found by the court to be present here. Appellant argues that under the Sixth Amendment, as interpreted in Blakely, he was entitled to a jury determination, based on proof beyond a reasonable doubt, of the presence of these or any other aggravating factors used to increase his sentence. We agree.

In Blakely, the Supreme Court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jttry verdict or admitted by the defendant.” 124 S.Ct. at 2537 (emphasis in original). The Court found that the defendant 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 the 90-month exceptional sentence that had been imposed under Washington state’s determinate sentencing scheme and remanded to the Washington Court of Appeals “for further proceedings not inconsistent with this opinion.” Id. In a dissenting opinion, Justice O’Connor stated that the Blakely majority opinion “casts constitutional doubt” over all state guidelines systems, including Minnesota’s. Id. at 2549.

The Minnesota Sentencing Guidelines are similar in operation to the guidelines in Washington that were at issue in Blakely. The Washington guidelines, like Minnesota’s, rely on a sentencing grid in which presumptive sentences are determined using two variables: (1) offense severity and (2) offender’s criminal history (called “offender score” in Washington). See Wash. Rev.Code Ann. § 9.94A.510 (2003). In Washington, like Minnesota, a departure is not mandatory even if the court finds aggravating factors. See Wash. Rev.Code Ann. § 9.94A.535 (2003) (providing that court “may” impose an “exceptional sentence” if aggravating factors are found); see also State v. Mail, 65 Wash.App. 295, 828 P.2d 70, 72 (1992) (describing departure as an “option” if aggravating factors present); cf. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that, under the guidelines, the judge “may” depart if aggravating factors are present), and State v. Oberg, 627 N.W.2d 721, 724 (Minn.App.2001) (noting that, even if mitigating factors are present, the court is not required to depart).

The state argues that, because the Minnesota guidelines are administrative rather than statutory, like the guidelines in Washington, the Blakely holding does not apply here. The state cites the discussion in Blakely of the legislature’s power to label certain facts as either elements of the crime or sentencing factors, 124 S.Ct. at 2539, and argues that the Court’s use of the term “statutory” maximum to refer to the maximum sentence that may be imposed based on the jury’s findings implies a legislative limit on the sentence. See id. at 2537. We disagree. The Blakely Court’s holding rests on “the need to give intelligible content to the right of jury trial,” id. at 2538, not on any distinction between legislative and administrative limits on that right. There is no discussion in Blakely of legislative authority to set sentencing limits that would support a distinction between Washington’s statutory guidelines and Minnesota’s guidelines, developed under legislative mandate by an administrative agency.

We recognize that some courts have made a distinction between administrative guidelines like Minnesota’s and guidelines codified by statute, like those at issue in Blakely. The Fifth Circuit has held that Blakely alone, at least pending further elaboration of its holding, does not apply to the nonstatutory federal guidelines. United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.2004) (holding that Blakely has not abolished the importance of the distinction between “United States Code maxima and Guidelines ranges”). But this distinction is subject to debate. See United States v. Booker, 375 F.3d 508, 512 (7th Cir.2004) (noting that the Blakely dissenters were unable to “identify a meaningful difference” between Washington statutory guidelines and federal administrative guidelines), cert. granted 73 U.S.L.W. 3074, 125 S.Ct. 11 (U.S. Aug. 2, 2004); cf. United States v. Penaranda, 375 F.3d 238, 243 (2d Cir.2004) (noting that Apprendi and Blakely both involved legislatively established sentencing limits). And we find no language in the Blakely opinion that would limit its holding to legislatively imposed sentencing guidelines codified in state statutes.

The state also points to the adjective “statutory” in the phrase “statutory maximum” that the Blakely Court borrowed from Apprendi. See Blakely, 124 S.Ct. at 2537. The state argues that “statutory” should be read to refer only to the absolute upper end of the sentencing range specified by statute. But Blakely appears to reject that distinction, indicating that the “statutory maximum” is “the maximum [sentence the judge] may impose without any additional findings.” Id. (emphasis in original).

In Minnesota, the concept of presumptive sentences was specifically authorized by the legislature in approving the creation of the guidelines. See Minn.Stat. § 244.09, subd. 5(2) (1978). Although the legislature did not itself fix the presumptive sentences that were eventually adopted, it did require the guidelines commission to report to it, and has, in later-enacted statutes, made its own revisions to the presumptive sentences for some offenses. See Minn.Stat. § 609.342, subd. 2(b) (2002) (prescribing presumptive sentence of at least 144 months for first-degree criminal sexual conduct). Thus, although not generally prescribed by legislation, the guidelines presumptive sentences are “statutory” in the sense that they were contemplated by the legislature, developed under legislative mandate, and are reviewed by the legislature.

In addition, Minnesota’s sentencing guidelines were not only authorized by the legislature, but were developed under close supervision by the legislative body. The legislation authorizing the guidelines provided that departures from the presumptive sentence could be no more than 15%. Minn.Stat. § 244.09, subd. 5(2) (1978). And the statute provides that proposed modifications to the guidelines grid, or changes that would result in a reduction of sentence or early release of an inmate, must be submitted to the legislature. Minn.Stat. § 244.09, subd. 11 (2002). Moreover, while the legislature has not chosen to enact a legislative veto over presumptive sentences, it has, through mandatory minimum sentences and sentencing enhancement statutes, legislatively mandated changes in presumptive sentences. See Minn.Stat. §§ 609.108, subd. 1(a) (2002) (providing that a court sentencing a patterned sex offender must impose a sentence of at least double the presumptive sentence), 609.342, subd. 2(b) (prescribing a presumptive sentence of 144 months for first-degree criminal sexual conduct); see generally Minn. Sent. Guidelines II.E. (providing that the presumptive duration of a sentence is the statutory mandatory minimum or the presumptive sentence according to the guidelines grid, whichever is longer); cf. Taylor v. State, 670 N.W.2d 584, 589-90 (Minn.2003) (considering the statutory changes in presumptive sentences and mandatory sentences for sex crimes in reviewing an upward departure for a sex offense). Thus, the Minnesota Sentencing Guidelines, although developed and modified by an independent administrative agency, are subject to considerable oversight and monitoring by the legislature.

The state also argues that the Minnesota guidelines, unlike the Washington guidelines at issue in Blakely, are merely advisory. The state argues that because the legislature has clarified that sentencing under the guidelines is not a “right” accruing to a defendant, the declaration in Blakely of a “legal right to a lesser sentence,” 124 S.Ct. at 2540 (emphasis in original), does not apply in Minnesota.

The relevant statute provides:

Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence in a proceeding to which the guidelines apply.... Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy....

Minn.Stat. § 244.09, subd. 5 (2002).

This statute provides that the sentencing guidelines do not bind the sentencing court to any particular sentence. But the procedures provided in the guidelines for arriving at an appropriate sentence must be followed. Id.; see State v. Hopkins, 486 N.W.2d 809, 812 (Minn.App.1992) (holding that the guidelines may not be manipulated to justify a sentence arrived at independently by the court). And the presumptive sentence is not merely a suggestion, but a sentence that must be imposed unless the procedures for departure are followed. See generally State v. Bellanger, 304 N.W.2d 282, 283 (Minn.1981) (holding that disagreement with the guidelines does not justify departure); cf. State v. Geller, 665 N.W.2d 514, 517 (Minn.2003) (holding that the district court must provide reasons for any departure from the presumptive sentence).

As for the statutory reference to a “right” accruing to the defendant, the supreme court held in 1996 that sentencing under the guidelines was a right that could be waived by the defendant. State v. Givens, 544 N.W.2d 774, 777 (Minn.1996) (holding that a plea agreement by itself could support a sentencing departure). The following year, the legislature amended Minn.Stat. § 244.09, subd. 5, to provide that sentencing “pursuant to the sentencing guidelines is not a right that accrues” to the defendant. 1997 Minn. Laws ch. 96, § 1; see State v. Misquadace, 644 N.W.2d 65, 69 (Minn.2002). As the supreme court recognized in Misquadace, the statutory amendment was a response to Givens and to its holding that the defendant in the plea agreement could waive his “right” to receive the presumptive sentence, absent grounds for departure. See Misquadace, 644 N.W.2d at 69.

But importantly, the 1997 Legislature’s concern with whether there was a “waiva-ble right” to the presumptive sentence did not address the constitutional dimension presented in Blakely. See Misquadace, 644 N.W.2d at 70. The Blakely Court’s concern, based on the Sixth Amendment, is that the defendant has a right to a jury trial that includes a right to receive a sentence that the jury’s verdict, standing alone, entails. 124 S.Ct. at 2540-41. The 1997 Legislature’s concern was whether the presumptive sentence could be waived by the defendant, not whether the defendant had a right to a jury trial before any greater sentence could be imposed. A defendant could have a “right” to receive the presumptive sentence under the guidelines without having any constitutional “right” to a jury trial that extended to the sentencing proceeding. Indeed, at the time of Givens, Misquadace, and the 1997 legislative amendment, there was no claim that the right to a jury trial affected the sentence that could be imposed within statutory limits. See Edwards v. United States, 523 U.S. 511, 514, 118 S.Ct. 1475, 1477, 140 L.Ed.2d 703 (1998) (approving a sentence imposed under the federal guidelines based solely on judicial findings, regardless of jury’s “actual, or assumed, beliefs” about the issue).

The state also argues that because previous United States Supreme Court opinions had approved the use of judicial fact-finding in the federal guidelines, Blakely should not be read as applying to nonstat-utory guidelines. But this argument ignores the dramatic significance of Blakely in stating a new rule of law. Previously, the Court had held that the federal guidelines “do no more than fetter the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress.” Mistretta v. United States, 488 U.S. 361, 396, 109 S.Ct. 647, 667, 102 L.Ed.2d 714 (1989). But in Blakely the Court rejected the view that the upper end of those “broad limits”- — -the maximum sentence provided by statute — defined the permissible discretion of sentencing judges. 124 S.Ct. at 2539-40. Instead, the Court held, the presumptive sentence in a determinate sentencing scheme is itself the maximum that the judge may impose without additional jury findings. See id. at 2537 (holding that the “statutory maximum” sentence is “the maximum [the court] may impose without any additional findings” beyond jury’s verdict) (emphasis in original).

Thus, we reject the state’s argument that Blakely did not establish any fundamental right to have all sentencing facts decided by the jury. The Blakely Court did approve indeterminate sentencing schemes in which discretion is vested in the sentencing judge. Id. at 2540. But although the judge under an indeterminate sentencing scheme must necessarily consider some facts, the Court held that the judge’s discretion in doing so did not come “at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty.” Id. Under Blakely, any sentencing facts “essential to lawful imposition of the penalty,” or sentence, must be decided by the jury. See id.

The state further argues that even if this court concludes that Blakely applies to upward sentencing departures under the Minnesota Sentencing Guidelines, it should construe the statute establishing those guidelines as making them only advisory to the district courts. See generally State v. Cunningham, 663 N.W.2d 7, 10 (Minn.App.2003) (holding that a court confronted with an ambiguous statute should adopt that construction which preserves constitutionality of statute). But, as discussed above, we cannot construe the guidelines as being merely advisory to the district courts. Indeed, this court’s considerable experience in enforcing the district courts’ compliance with the guidelines prevents us from following that course. See, e.g., State v. Law, 620 N.W.2d 562, 565 (Minn.App.2000) (stating that, in this court’s “strongly held judgment,” a downward dispositional departure for attempted second-degree murder “constitute[d] an abuse of the lawful parameters of trial-court discretion”), review denied (Minn. Dec. 20, 2000); Hopkins, 486 N.W.2d at 812 (holding that the sentencing guidelines may not be manipulated to support a sentence that is independently determined by the district court).

The departure imposed in this case involves the judicial fact-finding role prohibited by Blakely. The district court imposed a quintuple upward departure based on extensive fact findings that appellant argues ignored or contradicted the jury’s verdict acquitting him of second-degree felony murder and first-degree assault. Although we need not reach appellant’s argument that the sentence negated the jury’s verdict, we note that the Blakely majority was concerned that the jury “function as circuitbreaker in the State’s machinery of justice.” 124 S.Ct. at 2539. The jury could not have served that function in this case if its verdict of acquittal on the two greater offenses could be effectively negated by a sentence based on judicial findings.

In conclusion, the imposition of an upward durational departure based on judicial findings here violated appellant’s Sixth Amendment right to a jury trial. The durational departure is reversed, and this matter is remanded to the district court for resentencing in accordance with this opinion in such proceedings as the district court deems appropriate.

II.

Appellant argues that the upward dispo-sitional departure imposed by the district court violates his right to a jury trial under Blakely. The district court imposed an executed sentence based on its conclusion that appellant was not amenable to probation. The court made a number of factual findings concerning appellant’s past behavior while on probation, his abuse of alcohol, the findings of a psychological evaluation, and the results of personality testing.

Blakely involved an increase in the duration of the prison sentence based on judicial findings, not a decision on the proper disposition of the defendant. But appellant argues that because the disposi-tional departure also relied on additional judge-made findings, it violated his right to a jury trial under Blakely. We disagree.

The judicial fact-finding involved in dis-positional departures relies on the same subjective assessments on which judges would decide on a sentence under an indeterminate sentencing scheme. In Blakely, the majority opinion acknowledged that indeterminate-sentencing schemes “involve judicial factfinding, in that a judge ... may implicitly rule on those facts he deems important to the exercise of his sentencing discretion.” 124 S.Ct. at 2540. But this fact-finding is acceptable because

the facts [found] do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.

Id. (emphasis in original).

This court has held that Blakely does not apply to dispositional departures imposed under the Minnesota Sentencing Guidelines. State v. Hanf, 687 N.W.2d 659 (Minn.App.2004). We find the reasoning of that decision to be persuasive.

Under our sentencing guidelines, “[departures with respect to disposition and duration ... are logically separate decisions.” Minn. Sent. Guidelines cmt. II. D.02. The guidelines provide a nonexclusive list of permissible reasons for departure, without specifying whether these reasons will support dispositional or dura-tional departures, or both. See id. II. D.2. But caselaw has developed a separate category of reasons for dispositional departures. State v. Trog, 323 N.W.2d 28, 31 (Minn.1982) (holding that a defendant’s particular amenability to probation or treatment will justify dispositional departure). Those reasons relate to the individual characteristics of the offender though and may not be used to support a dura-tional departure. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn.1995).

Thus, dispositional departures in Minnesota have not been governed by the mitigating and aggravating factors listed in the guidelines. Instead, courts have continued to use the same offender characteristics they used before in determining whether the defendant should go to prison. See Trog, 323 N.W.2d at 31 (holding that “[n]u-merous factors,” including age, prior record, remorse, and attitude in court are relevant to whether defendant is particularly amenable to probation). These decisions are often influenced by psychological evaluations, the court’s observations of the defendant, recommendations in the pre-sentence investigation (PSI), and other broad considerations, rather than the offense-related factors listed in the guidelines. See, e.g., State v. Sejnoha, 512 N.W.2d 597, 600 (Minn.App.1994) (affirming the downward dispositional departure of a sex offender evaluated as amenable to treatment and displaying extreme remorse), review denied (Minn. Apr. 21, 1994).

The district court’s dispositional departure here involved an open-ended examination of individual offender characteristics. The court relied on the PSI, on observations of appellant’s probation officer, and on psychological testing and the conclusions of the psychological evaluation. The court found that appellant had violated his probation in the past and that he continued to engage in behavior, particularly the use .of alcohol, that led to criminal offenses. The court also found that personality testing showed appellant to be egocentric, that he had showed no remorse for the offense, and that he had learned little or nothing from chemical-dependency and anger-management treatment programs.

Because, following Hanf, we conclude that the dispositional departure did not violate appellant’s right to a jury trial under Blakely, we must address appellant’s other challenges to the departure. But we note that, just as the durational departure in this case, insofar as it tended to negate the jury’s verdict, requires us to apply the rationale of Blakely, the dispositional departure, based on facts far removed from the offense elements reflected in that verdict, supports the Hanf court’s conclusion that Blakely does not apply to dispositional departures.

Appellant argues that the impact of his prior juvenile and adult misdemean- or offenses should weigh less heavily than the three prior felony convictions it would take to make his sentence a presumptively executed sentence. But this argument ignores the presence of the other Trog factors that indicate he is unamenable to probation. And although it may be possible to weigh the seriousness of appellant’s past offenses against that of three prior felonies, it is impossible to measure the weight of the other Trog factors, mostly subjective in nature, against that of three prior felonies.

The record indicates that appellant has been placed on probation four times but always reoffended. Moreover, this criminal behavior has escalated over time. Although alcohol abuse has played a part in this behavior, appellant has continued to abuse alcohol, refusing to acknowledge that he has a problem, and has admitted that he did not learn anything from his chemical-dependency and anger-management programs. The PSI noted that appellant had a “callous disregard for others” and that he lacked any “genuine sadness for his behavior.” Thus, the record amply supports the district court’s conclusion that appellant is unamenable to probation, even without considering the results of personality testing or the conclusions of the psychological evaluation.

Appellant argues that the district court’s findings reflect an “animus” against him. But, as discussed above, the court’s findings are all supported by the record. Appellant also argues that the factors governing dispositional decisions focus on whether appellant is a risk to public safety, and there is no evidence that he poses such a risk. But appellant provides no authority in support of this argument. The factors governing pretrial release, and release pending appeal, include an assessment of whether the defendant is a risk to public safety. See Minn. R.Crim. P. 6.02, subd. 2; 28.02, subd. 7(2). But a defendant’s amenability to probation by itself will support a downward dispositional departure. See State v. Donnay, 600 N.W.2d 471, 473-74 (Minn.App.1999), revieiv denied (Minn. Nov. 17, 1999). And a finding that a defendant is a risk to public safety has not been held to be a prerequisite to finding the defendant unamenable to probation. We conclude that the district court did not abuse its discretion in imposing an upward dispositional departure.

DECISION

The district court’s imposition of an upward durational departure based on judicial findings violated appellant’s Sixth Amendment right to trial by jury. The district court’s upward dispositional departure did not violate appellant’s jury-trial right and was not an abuse of discretion. We remand for resentencing.

Affirmed in part, reversed in part, and remanded.

      . This court has recently held that Blakely applies to upward sentencing departures under the Minnesota guidelines. State v. Conger, 687 N.W.2d 639 (Minn.App.2004). This appeal, unlike Conger, involves a jury verdict rather than a guilty plea.

      . In Washington, the Minnesota Sentencing Guidelines are considered so similar that Minnesota cases on sentencing departures are considered persuasive authority in that state. In re Breedlove, 138 Wash.2d 298, 979 P.2d 417, 423 (1999); State v. Nordby, 106 Wash.2d 514, 723 P.2d 1117, 1121 n. 1 (1986).


author: HARTEN, Judge.

text:
    In re Norman Jerry VOLKMANN, petitioner, Respondent, v. Sallie A. VOLKMANN, Appellant.
    No. A04-1085.
    Court of Appeals of Minnesota.
    Nov. 9, 2004.

      Thomas J. Kraus, Kraus Law Offices, Waseca, MN, for respondent.
    Aaron J. Glade, Farrish Johnson Law Office Chtd., Mankato, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; HARTEN, Judge; and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

The judgment in the dissolution of the parties’ marriage reserved two issues, and the parties entered into binding arbitration to resolve them. The arbitrator met separately with each party but not with both parties together. Appellant moved to vacate the award and the district court denied the motion. We reverse and remand.

FACTS

Appellant Sallie A. Volkmann and respondent Norman Jerry Volkmann agreed to enter into binding arbitration of the two issues reserved in their marriage dissolution judgment. Correspondence between the parties’ respective counsel identified the arbitrator and stated that the parties agreed to arbitrate “unrepresented.” The correspondence did not indicate that the parties waived their right to the hearing prescribed by Minn.Stat. § 572.12 (2002).

The arbitrator did not conduct a hearing, but instead met with each party separately. Shortly before the arbitrator was scheduled to issue his award, appellant’s counsel notified the arbitrator that appellant had decided to withdraw from arbitration. Nonetheless, the arbitrator issued his award, holding that neither party was entitled to any relief. The district court denied appellant’s motion to vacate the award. Appellant challenges that denial.

ISSUE

Did the arbitrator’s failure to conduct the hearing required by Minn.Stat. § 572.12 (2002) substantially prejudice the rights of the parties?

ANALYSIS

Arbitrators must conduct a hearing unless otherwise provided by agreement. MinmStat. § 572.12(a) (2002). At the hearing, “[t]he parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses.” Minn.Stat. § 572.12(b). A court must vacate an award where the arbitrator “so conducted the hearing, contrary to the provisions of section 572.12, as to prejudice substantially the rights of a party.” Minn. Stat. § 572.19, subd. 1(4) (2002). Whether challenged conduct constitutes prejudicial misconduct is reviewed de novo. Aaron v. Ill. Farmers Ins. Group, 590 N.W.2d 667, 669 (Minn.App.1999).

Here, the arbitrator failed to conduct a hearing. Respondent claims that the arbitrator chose to meet with the parties individually because he anticipated conflict due to their acrimonious relationship. But Minnesota law mandates a hearing regardless of the character of the parties’ relationship. Not allowing one party to hear, respond to, or cross-examine the other constitutes conduct that “prejudice[s] substantially the rights of a party.” Minn.Stat. § 572.19, subd. 1(4). Cross-examination is an irreplaceable way to develop testimonial truth. See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn.App.1995) (purpose of all examination, direct and cross, is “to elicit facts to show the truth”).

The written correspondence between the parties did not include any waiver of the right to an adversarial hearing. The documents show only that the parties agreed to arbitration “unrepresented.” Thus, in the absence of a valid waiver, the failure to conduct a hearing substantially prejudiced the rights of the parties and requires vacation of the arbitration award.

DECISION

Because the arbitrator did not conduct the adversarial hearing required by Minn. Stat. § 572.12 (2002), and the parties did not waive their right to the hearing, the district court erred in denying appellant’s motion to vacate the arbitration award. We reverse and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Because the award is vacated, we need not address the propriety of the arbitrator's language regarding property ownership.


author: NEUMANN, Justice. SANDSTROM, Justice,

text:
    2004 ND 199
    Jessica KNOLL n/k/a Jessica Bushee, Plaintiff and Appellant v. Christian KULECK, Defendant and Appellee.
    No. 20040087.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Marnie R. Soggie, Special Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.
   NEUMANN, Justice.

[¶ 1] Bismarck Regional Child Support Enforcement Unit (“Unit”) appealed a second amended judgment fixing Christian Kuleck’s child support obligation. We reverse and remand.

I

[¶2] In 2000, an amended judgment ordered Kuleck to pay child support of $151 per month. Kuleck quit his job and became self-employed in May 2002. In 2003, the Unit initiated a review of Ku-leck’s child support obligation. Kuleck failed to provide financial information' requested by the Unit, but the Unit did obtain his 2001 tax return. The Unit moved to amend the judgment to require Kuleck to pay child support of $459 per month. Kuleck did not respond to the Unit’s motion with a brief in accordance with N.D.R.Ct. 3.2(a), but his attorney filed a notice of hearing to be held on the motion. At the hearing, the Unit’s attorney requested summary judgment. Ku-leck’s attorney said “the information that they used is not incorrect.... [W]e think that the child support should be based on a more accurate figure than several year old financial information.... We would propose that you average in his prior employment along with the self-employment.... Although the way the Child Support Office has done it is technically correct.” The court directed the attorneys to proceed on the merits. Kuleck testified that he did not provide financial information requested by the Unit and did not respond to a proposed stipulation. Kuleck testified that he had his 2002 tax return with him at the hearing, that his 2002 income was about $15,000, and that he estimated his 2003 income was $15,000-$16,000. He did not offer his 2002 tax return as evidence.

[¶ 3] After the conclusion of the evi-dentiary presentation, the trial court said “there wasn’t really any basis for concluding anything other than what the child support lawyer is asking for here today.” The court ruled, however, that it would “take an arbitrary number that doesn’t directly connect to anything,” and asked Kuleck’s attorney to “submit worksheets ... that would use a $25,000 annual income as the basis on which his child support should be based.” In its findings of fact and order for amended judgment, the trial court found “[djuring the last two years of self-employment [Kuleck] earned approximately $15,000 to $16,000 each year” and “[a] fair estimation of his income in following years is $25,000 per year, and that amount shall be used to determine his child support obligation.” The court found Kuleck had a child support obligation of $330 per month.

[¶ 4] A second amended judgment setting Kuleck’s child support obligation at $330 per month was entered, and the Unit appealed, contending the trial court failed to comply with the child support guidelines in setting Kuleck’s child support obligation.

II

[¶ 5] “Parents have a duty to support their children to the best of their abilities.” In re D.L.M., 2004 ND 38, ¶ 4, 675 N.W.2d 187. Although “[a]n obligor’s ability to pay is not determined solely upon actual income, but takes into account the obligor’s earning capacity,” Id., under N.D. Admin. Code § 75-02-04.1-02(3), “[n]et income received by an obligor from all sources must be considered in the determination of available money for child support.” Section 75-02-04.1-02(7), N.D. Admin. Code, requires documentation of a child support obligor’s income: “Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income.” Section 75-02-04.1-05(3), N.D. Admin. Code, requires alternative documentation of self-employment income: “If the tax returns are not available or do not reasonably reflect the income from self-employment, profit and loss statements which more accurately reflect the current status must be used.” Section 75-02-04.1-02(10), N.D. Admin. Code, requires a child support order to include “a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.” A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor’s child support obligation. D.L.M., at ¶ 6.

[¶ 6] The Unit did not attempt to show that Kuleck was either unemployed or underemployed, which, under N.D. Admin. Code § 75-02-04.1-07(3), would have required the use of whichever of three methods of measuring earning capacity resulted in the greatest imputed income. D.L.M., 2004 ND 38, ¶ 4, 675 N.W.2d 187. Instead, the Unit attempted to have Kuleck’s child support obligation determined under N.D. Admin. Code § 75-02-04.1-07(9), which provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

That provision allows “imputation of income without a showing of unemployment or underemployment if the child support obligor has voluntarily changed employment resulting in a reduction in income.” Geinert v. Geinert, 2002 ND 135, ¶ 17, 649 N.W.2d 237. It gives a judge discretion to impute income in cases in which it would otherwise not be allowed. D.L.M., at ¶ 5. “An abuse of discretion is never assumed; the burden is on a party seeking relief to affirmatively establish it.” Riemers v. Anderson, 2004 ND 109, ¶ 14, 680 N.W.2d 280. “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Geinert, 2002 ND 135, ¶ 18, 649 N.W.2d 237.

[¶ 7] The Unit sought to have Ku-leck’s child support obligation computed in accordance with N.D. Admin. Code § 75-02-04.1-07(9), based on Kuleck’s 2001 tax return. At the hearing in 2004, neither of the attorneys presented tax returns, profit and loss statements, or any other documentation of Kuleck’s 2002 and 2003 income sufficient “to fully apprise the court” of Kuleck’s gross income for those years. We, therefore, conclude the trial court did not abuse its discretion in choosing not to impute income to Kuleck under N.D. Admin. Code § 75-02-04.1-07(9).

[¶ 8] We understand the trial court’s frustration in a case like this one in which neither of the parties attempted to present or cause to be presented evidence of the obligor’s income “sufficiently documented through the use of tax returns ... and other information to fully apprise the court of all gross income,” N.D. Admin. Code § 75-02-04.1-02(7), received by the obligor or “profit and loss statements which ... accurately reflect the current status,” N.D. Admin. Code § 75-02-04.1-05(3), of the obligor’s income. The parties’ inadequate evidentiary presentation, however, did not authorize the trial court to “take an arbitrary number that doesn’t directly connect to anything,” as the court did here, as the basis for its computation of an obligor’s child support obligation. On the facts before the trial court, N.D. Admin. Code § 75-02-04.1-07(8) requires income to be imputed to the obligor based on the greatest of four methods of measuring earning capacity for failure, upon reasonable request, to furnish reliable information concerning the obligor’s gross income from earnings, and it was error not to do so here.

Ill

[¶ 9] Because the trial court’s determination of Kuleck’s child support obligation was not based on documented income, the trial court’s determination did not comply with the child support guidelines, and the court erred as a matter of law. The amended judgment is reversed and the matter is remanded for determination of Kuleck’s child support obligation in accordance with the child support guidelines.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 11] The majority correctly notes at ¶ 7:

At the hearing in 2004, neither of the attorneys presented tax returns, profit and loss statements, or any other documentation of Kuleck’s 2002 and 2003 income sufficient “to fully apprise the court” of Kuleck’s gross income for those years. We, therefore, conclude the trial court did not abuse its discretion in choosing not to impute income to Kuleck under N.D. Admin. Code § 75-02-04.1-07(9).

[¶ 12] At the hearing, Christian Kuleck was questioned by the lawyer for the Regional Child Support Enforcement Unit:

Q. Have you brought copies of your tax returns with you today, sir?
A. Yes.
Q. For what years have you brought tax returns with you today?
A. For 2002; 2003 right now is estimated until I get my 1099 finalized from all the contractors I’ve done business with.
Q. Who completed that estimated 2003 tax return?
A. I did.

[¶ 13] The obligor brought his tax returns to court. The Regional Child Support lawyer determined this fact and then did not have them marked or made an exhibit in the proceeding.

[¶ 14] The Regional Child Support Enforcement Units are charged with the pub-lie interest in seeing that the correct amount of child support is determined under the statutes and guidelines, and then that amount is paid. N.D.C.C. § 14-09-09.27. The units’ lawyers are to be seekers of truth and justice. Their goal must not be to stick an obligor with a higher (or lesser) obligation than is appropriate. Their goal must be to present the courts with all relevant evidence.

[¶ 15] In this case, relevant evidence was brought to court, and the Unit’s lawyer did not have it marked and introduced as evidence. Although in this case the obligor had a lawyer, in many cases, obli-gors are unrepresented. Even when the obligor has a lawyer, that lawyer will often lack the degree of expertise the Unit’s lawyer has in increasingly arcane rules that seem destined to eventually rival the complexity of the Internal Revenue Code. The Unit’s lawyer should have had the tax records marked and introduced as evidence.

[¶ 16] Dale V. Sandstrom


author: SANDSTROM, Justice.

text:
    2004 ND 200
    Randy Scott JENSEN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040137.
    Supreme Court of North Dakota.
    Nov. 2, 2004.

      Randy Scott Jensen, pro se, Fargo, N.D., petitioner and appellant.
    David Thomas Jones, Assistant State’s Attorney, and Kelly D. Crammer, Senior Legal Intern, Grand Forks, N.D., for respondent and appellee; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Randy Scott Jensen appeals from a judgment dismissing his application for post-conviction relief. We affirm, holding Jensen’s claims for post-conviction relief are res judicata and a misuse of process.

I

[¶ 2] Jensen was convicted of driving while his license was revoked, driving under the influence, and giving a false report to law enforcement. We affirmed those convictions in State v. Jensen, 2001 ND 117, ¶ 1, 636 N.W.2d 674, holding Jensen was afforded a preliminary hearing and was not entitled to dismissal of the charge of driving under the influence, the trial court did not abuse its discretion in admitting Jensen’s driving abstract into evidence, and the evidence was sufficient to sustain his conviction for driving under the influence. Jensen thereafter was convicted of bail jumping for failing to appear at an arraignment in the underlying prosecution for driving under the influence, and we affirmed that conviction in State v. Jensen, 2001 ND 159, ¶ 1, 639 N.W.2d 706, holding the trial court did not abuse its discretion in refusing to grant Jensen’s motion for acquittal under N.D.R.Crim.P. 29, and there was sufficient evidence in the record to support the conviction.

[¶ 3] In January 2002, Jensen applied for post-conviction relief. The trial court dismissed Jensen’s application, and he appealed, asserting:

(1) prosecutorial misconduct in presenting false testimony and alteration of court documents, (2) ineffective assistance of counsel, (3) violation of his due process rights under the United States Constitution, (4) improper charge and conviction of failing to appear for a hearing, (5) denial of court-appointed counsel, and (6) illegal extradition.

Jensen v. State, 2003 ND 28, ¶ 4, 660 N.W.2d 232 (outlining in a subsequent case the issues on an earlier appeal). We summarily affirmed the dismissal in Jensen v. State, 2002 ND 184, ¶ 1, 655 N.W.2d 84.

[¶ 4] In March 2002, Jensen applied for post-conviction relief, and the trial court denied that application. Jensen thereafter filed an amended application for post-conviction relief. The trial court denied his amended application, and he appealed, raising the following issues:

(1) the statute of limitations; (2) lack of an initial appearance; (3) improper join-der of charges; (4) instructing the jury that the charge of driving under the influence was a class C felony; (5) insufficiency of the evidence to support the conviction of making a false report; (6) untimely filing of an information in connection with an allegedly forged waiver of a preliminary hearing; (7) evidence and jury instruction about Jensen’s refusal to consent to a chemical test to determine the alcohol content of his blood; (8) prosecutorial misconduct; (9) denial of counsel for a pretrial hearing on October 3, 2000; (10) ineffective assistance of trial and direct appeal attorneys; and (11) denial of appointed counsel for post-conviction proceedings and the appeal from the denial of his application for post-conviction relief.

Jensen, 2003 ND 28, ¶ 5, 660 N.W.2d 232. We summarily affirmed in Jensen, 2003 ND 28, ¶ 6, 660 N.W.2d 232.

[¶ 5] In December 2003, Jensen filed this application for post-conviction relief, raising ten claims. Jensen also sought recusal of the trial judge. The State responded that the issues raised by Jensen had been previously addressed on several occasions. The trial court denied Jensen’s motion for recusal and his application for post-conviction relief, stating all ten issues had been addressed on several occasions by itself, the jury, and the North Dakota Supreme Court.

[¶ 6] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 29-32.1-03. Jensen’s appeal is timely under N.D.C.C. § 29-32.1-14 and N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] On appeal, Jensen asserts the arraignment at which he failed to appear, the order to appear, and the conviction for bail jumping were null and void; the trial court did not have personal jurisdiction over him in the prosecution for driving under the influence; the conviction for bail jumping was void because the cross-examination of his former attorney violated the attorney-client privilege; he was denied a fair and unbiased judge; the State did not satisfy its burden of proving he had notice of the arraignment at which he failed to appear; the imposition of a jail sentence followed by a period of probation violated double jeopardy and due process; he had ineffective assistance of counsel at his trials and in his direct appeals; and he was denied counsel for his post-conviction proceedings.

[¶ 8] The trial court denied Jensen’s application for post-conviction relief without an evidentiary hearing. Our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. Greybull v. State, 2004 ND 116, ¶ 2, 680 N.W.2d 254. In seeking summary disposition, the mov-ant bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and the movant is entitled to judgment as a matter of law. Id.

[¶ 9] Under N.D.C.C. § 29-32.1-12(1) and (2), an application for post-conviction relief may be denied on the grounds of res judicata and misuse of process. Under N.D.C.C. § 29-32.1-12(1), a claim is res judicata if it was fully and finally determined in a previous proceeding. Under N.D.C.C. § 29-32.1-12(2), misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in the proceeding leading to conviction or in a previous post-conviction proceeding, or if the applicant files niultiple applications containing claims so lacking in factual support or legal basis as to be frivolous. Post-conviction proceedings are not intended to allow defendants multiple opportunities to raise the same or similar issues, and defendants who inexcusably fail to raise all of their claims in a single post-conviction proceeding misuse the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding. Johnson v. State, 2004 ND 130, ¶ 13, 681 N.W.2d 769. Defendants are not entitled to post-conviction relief when their claims are variations of previous claims that have been rejected. Garcia v. State, 2004 ND 81, ¶ 22, 678 N.W.2d 568.

[¶ 10] Jensen’s claims in this application for post-conviction relief mirror the issues he raises in this appeal. The issues, or variation of issues, raised by Jensen in this proceeding were either raised in previous proceedings or, if not raised previously, Jensen has offered no excuse or justification for failing to raise those claims in prior proceedings. We conclude those issues were either fully and finally determined in previous proceedings and are res judicata, or constitute a misuse of process, because Jensen has offered no excuse or justification for failing to raise those claims in prior proceedings.

[¶ 11] Jensen nevertheless claims res judicata does not apply to this case because res judicata and misuse of process apply only to fact claims. Jensen has cited no persuasive authority to support his claim, and our law does not support that claim. See Murchison v. State, 2003 ND 38, ¶ 16, 658 N.W.2d 320 (res judicata precludes speedy trial claim, or variation of speedy trial claim, raised in prior post-conviction proceeding); Red Paint v. State, 2002 ND 27, ¶¶ 10-11, 639 N.W.2d 503 (res judicata and misuse of process preclude self-incrimination claim raised in direct appeal).

Ill

[¶ 12] Jensen claims he was wrongly denied counsel for this post-conviction proceeding and for his prior post-conviction proceedings. To the extent Jensen claims he was wrongly denied counsel for his prior post-conviction proceedings, that issue has been rejected in a prior appeal. See Jensen, 2003 ND 28, ¶ 5, 660 N.W.2d 232.

[¶ 13] The appointment of post-conviction counsel is a matter of trial court discretion, and we will not reverse a trial court’s refusal to appoint counsel absent an abuse of that discretion. Crumley v. State, 2000 ND 110, ¶ 11, 611 N.W.2d 165. A trial court should read applications for post-conviction relief in the light most favorable to the applicant, and when a substantial issue of law or fact may exist, the trial court should appoint counsel. Id. However, a trial court does not abuse its discretion in refusing to appoint counsel when the application for relief is completely without merit. Id. We conclude the trial court did not abuse its discretion in denying Jensen’s request for court-appointed counsel for this proceeding.

IV

[¶ 14] Jensen argues the judge in the post-conviction proceedings should have recused herself. In February 2004, Jensen moved to recuse Judge Eleven and all judges in the Northeast Central Judicial District from acting upon his application for post-conviction relief. Jensen claimed all five judges in that district have their offices or main chambers in the same building, and Judge Eleven was a friend of the judge who denied him a fair and unbiased trial in his underlying criminal case. We have effectively rejected Jensen’s claims that he was deprived of a fair and unbiased trial in prior proceedings, and we conclude Jensen’s bald and unsupported assertions in this proceeding were not sufficient to require Judge Eleven to recuse herself.

V

[¶ 15] We affirm the judgment denying Jensen post-conviction relief.

[¶ 16] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING EAPSNER, JJ., concur.