author: DIETZEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Jeffrey Allen LASNETSKI, Appellant.
    No. A04-785.
    Court of Appeals of Minnesota.
    May 17, 2005.

      Boyd A. Beccue, Kandiyohi County Attorney, Willmar, MN; and Mike Hatch, Attorney General, Kimberly Ross Parker, Assistant Attorney General, St. Paul, MN, for respondent.
    Bruce M. Rivers, Rivers & Associates, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; TOUSSAINT, Chief Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges his conviction of first-degree assault, arguing that the district court erred in admitting testimonial hearsay in violation of the Confrontation Clause of the United States and Minnesota Constitutions. Appellant also argues that the district court ' improperly excluded character evidence and that he was deprived of a fair trial due to prosecutorial misconduct. Because we conclude that admission of the testimony did not violate the Confrontation Clause and objection'to the testimony was otherwisé waived by appellant, and that the district court did not abuse its discretion on the other issues, we affirm.

FACTS

In the late afternoon of January 17, 2003, appellant Jeffrey Allen Lasnetski called his estranged wife, Darla Lasnetski, and told her that he was going to commit suicide. After appellant’s daughter called 911, the Kandiyohi County Sheriffs Department was dispatched to the Lasnetski residence. Deputy Greg Stehn arrived at the scene and observed appellant standing by a truck in the driveway pointing a shotgun at his own head. In an effort to not escalate the situation, Stehn backed the squad car out of the driveway. While doing so, he observed appellant raise the shotgun to his shoulder and point it at Stehn. A few seconds later, Stehn heard the shotgun fire. While the shot did not strike Stehn or his squad car, he assumed appellant was shooting at the car.

Shortly thereafter, numerous law enforcement personnel arrived at the scene, and a roadblock was established to block traffic from approaching the residence. Mrs. Lasnetski arrived at the residence shortly after the shot was fired and was intercepted by Deputy Shawn Kujawa at the roadblock. While Mrs. Lasnetski was in Kujawa’s squad car discussing the situation, appellant called her on a cell phone. Mrs. Lasnetski spoke with appellant several times. During the conversations with appellant, Kujawa coached Mrs. Lasnetski on how to talk to appellant in order to keep him from committing suicide. Mrs. Lasnetski pleaded with appellant that he needed to surrender. Appellant responded that he shot at the deputy and that he would go to jail. Mrs. Lasnetski responded that no one was hurt and that everything would be okay. Appellant also told her that if the officers tried to approach the house, he would shoot them. Later, appellant stated that he would shoot at the officers in order to provoke them into shooting him. ■

Kujawa told Mrs. Lasnetski to keep appellant on the phone as long as possible: Eventually, appellant took an overdose of allergy medication and began coughing and vomiting: A'flash-bang grenade was then detonated inside the residence, and law enforcement personnel entered to remove appellant.

Appellant was charged with first-and second-degree assault. Before trial, the state filed á motion to compel the testimony of Mrs. Lasnetski or, in the alternative, to allow Kujawa to testify as to Mrs. Las-netski’s out-of-court statements. The proposed testimony was that appellant told his wife, who in turn told Deputy Kujawa, that (1) appellant would not surrender because he shot at a deputy and was afraid he would be arrested for attempted murder; (2) if the officers tried to approach the house he would shoot them; and (3) he intended to go out of the house and start shooting in order to provoke law enforcement into shooting him because he wanted to die. The district court denied the state’s motion to compel the testimony of Mrs. Lasnetski on the basis of the spousal privilege but permitted Kujawa to testify regarding Mrs. Lasnetski’s phone conversations with appellant. The district court held that such testimony was admissible under the excited utterance exception to the hearsay rule and the residual exception for an unaváilable'declarant. See Minn. R. Evid. 803(2) (excited utterance); Minn. R. Evid. 804(b)(5) (residual exception).

During trial, Kujawa testified about his conversations with Mrs. Lasnetski in his squad car along the lines proposed in the state’s pretrial motion. Appellant did not object during the trial to Kujawa’s testimony. In appellant’s case-in-chief appellant testified and called Mrs. Lasnetski to testify regarding her conversations with appellant in Kujawa’s squad car. Appellant also moved to introduce evidence of his reputation or character for truthfulness. The district court did not allow the evidence, finding that reputation for truthfulness was not relevant to the charged offenses and that appellant’s credibility had not been attacked. The jury found appellant guilty of first-degree assault. This appeal followed.

ISSUES

1. Did the district court err by allowing Kujawa to testify regarding Mrs. Lasnet-ski’s phone conversations with appellant?

2. Did the district court err by excluding character evidence offered by appellant?

3. Was appellant denied a fair trial due to alleged prosecutorial misconduct?

ANALYSIS

I.

Kujawa’s Testimony

Appellant contends that the out-of-court statements of Mrs. Lasnetski admitted into evidence through Kujawa’s testimony should have been excluded because they constituted testimonial hearsay and violated appellant’s rights to confrontation under the state and federal constitutions. The state argues that the evidence did not constitute testimonial hearsay and that appellant had otherwise waived, his rights under the Confrontation Clause.

The evidentiary rulings of a district court lie within its sound judgment and will not be reversed absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). If an error was committed in admitting evidence, we determine whether there is a reasonable possibility that the evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 (Minn.1994). But if an evidentiary ruling involves constitutional error, we must look to the basis on which the jury rested the verdict and require a new trial unless the error is harmless beyond a reasonable doubt. State v. Jones, 556 N.W.2d 903, 910 (Minn.1996).

In the recent case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court reviewed the admissibility of hearsay statements in criminal trials. In Crawford, the trial court admitted hearsay evidence derived from the custodial interrogation of the defendant’s wife, who was a witness to a stabbing but was unavailable to testify because of marital privilege. Id. at 38, 124 S.Ct. at 1356-57. The trial court admitted the wife’s tape-recorded statements as an exception to the hearsay rule. Id. at 40, 124 S.Ct. at 1358. The Supreme Court reversed, holding that interrogations by law enforcement officers fall squarely within the category of testimonial hearsay. Id. at 68, 124 S.Ct. at 1374. Accordingly, the Sixth Amendment Confrontation Clause analysis turns on whether a particular statement is “testimonial” in nature. The Crawford Court held that testimonial out-of-court statements of witnesses may only be admitted where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. Id. at 68, 124 S.Ct. at 1374.

Although the Crawford Court declined to provide a definition of “testimonial,” it did note three formulations of “core” testimonial hearsay: (1) “ex parte in-court testimony or its functional equivalent ... such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials”; and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. at 51-52, 124 S.Ct. at 1364 (quotations omitted). As a corollary to the final category, the Court added that “[sjtatements taken by police officers in the course of interrogations” are similarly testimonial. Id. at 52, 124 S.Ct. at 1364.

Based on our review of Crawford, Mrs. Lasnetski’s statements to Kujawa contemporaneously repeating what appellant allegedly stated to her do not constitute “testimonial” hearsay. First, the testimony clearly is not ex parte in-court testimony, its functional equivalent, or extrajudicial statements contained in formalized testimonial materials that would qualify under either of the Court’s first or second formulations of “core” testimonial hearsay.

Second, the statements were not made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Here, Mrs. Lasnetski was not in custody and was not the subject of a Miranda-warned interrogation. Her statements were not the product of any police interrogation of her or of appellant. Instead, Mrs. Lasnetski was on her cell phone in the squad car with Kujawa for the sole purpose of persuading appellant not to take his life but to surrender. Under these exigent circumstances, an objective witness would not contemplate that what was expressed to Kujawa would be used at a later trial. Given the stress of the moment, a reasonable, objective witness would not even contemplate the possibility of a later trial, but would be solely engaged in preventing a suicide. To hold otherwise would be to construe Crawford as holding that every exigent statement made to law enforcement personnel is “testimonial.”

Our facts are more analogous to a 911 call in State v. Wright, 686 N.W.2d 295 (Minn.App.2004), review granted (Minn. Nov. 23, 2004), than to a formalized statement to police. In Wright, we concluded that statements made by assault victims during a 911 call were not testimonial because the victims’ excited utterances “moments after an assault simply do not qualify as knowing responses to structured questioning in an investigative environment in which the declarant reasonably expects that the responses will be used in later judicial proceedings.” Id. at 302. Like Wright, the statements made in this case lack the formality of “core” testimonial hearsay contemplated by Crawford. Therefore, we conclude that none of Mrs. Lasnetski’s statements made to the police are “testimonial” hearsay under Crawford.

The state argues that, even if Mrs. Lasnetski’s statements to Deputy Kujawa were testimonial under Crawford, appellant waived his rights under both the Confrontation Clause and the spousal-immunity privilege by calling his wife to testify at trial. We agree. A defendant may intelligently waive a fundamental constitutional protection. State v. Blom, 682 N.W.2d 578, 617 (Minn.2004); see also United States v. Mezzanatto, 513 U.S. 196, 201, 115 S.Ct. 797, 801, 130 L.Ed.2d 697 (1995) (“A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded .by the Constitution.”). Specifically, a defendant may waive his right to confrontation, as well as the.right against self-incrimination and the right to a jury trial. See State v. Worthy, 583 N.W.2d 270, 277-78 (Minn.1998) (holding that when defendant voluntarily leaves courtroom, he waives right under Confrontation Clause to be present at trial); State v. Provost, 490 N.W.2d 93, 96 (Minn.1992) (stating defendant may intelligently waive right against self-incrimination); State v. Ross, 472 N.W.2d 651, 653 (Minn.1991) (stating that defendant may waive right to jury trial if waiver is knowing, intelligent, and voluntary).

A waiver “is an intentional relinquishment of a known right or privilege, and its validity depends ... upon the particular facts and circumstances surrounding the case.” Blom, 682 N.W.2d at 617 (quoting State v. Richards, 456 N.W.2d 260, 264 (Minn.1990)). The waiver need not be explicit but rather may be inferred from a defendant’s conduct. Id. Here, appellant’s decision to call his wife to testify was a trial strategy to take his chances with the jury. Mrs. Lasnetski then testified regarding her statements to Kujawa and, therefore, appellant was afforded the opportunity to confront the declarant.

We recently considered this issue in State v. Courtney, 682 N.W.2d 185 (Minn.App.2004), rev’d on other grounds, 696 N.W.2d 73 (Minn.2005), where we applied Crawford to statements made by an assault victim to a police officer. Id. at 196. In Courtney, the victim was called by the defense on the last day of trial and was subject to direct and cross-examination regarding her statements made to the officer. Id. For this reason, we concluded that the victim’s statements were properly admitted by the district court. Id. See also Crawford, 541 U.S. at 59, 124 S.Ct. at 1369 n. 9 (“[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements .... The Clause does not bar admission of a statement so long as the declar-ant is present at trial to defend or explain it.”) (citation omitted); State v. Plantin, 682 N.W.2d 653, 660 n. 2 (Minn.App.2004) (holding Crawford inapplicable because de-clarant testified at trial), review denied (Minn: Sept. 29, 2004); State v. Tate, 682 N.W.2d 169, 176 n. 1 (Minn.App.2004) (stating that because declarant “testified at trial and was subject to cross-examination concerning the statement, the Confrontation Clause does not apply to invalidate the hearsay exception”), review denied (Minn. Sept. 29, 2004).

Appellant argues that he was forced to call Mrs. Lasnetski to testify because the district court’s erroneous pretrial ruling allowed Kujawa’s testimony but barred Mrs. Lasnetski from testifying because of the spousal privilege. Essentiab ly, appellant argues that his waiver was not voluntary. We reject that argument. Appellant had the choice of not calling Mrs. Lasnetski to testify and asserting his constitutional rights in an appeal of any conviction. Instead, appellant made a trial strategy decision that he would waive his constitutional rights and let the jury decide. Because appellant chose to call Mrs. Lasnetski to testify, we conclude that the waiver of his Confrontation Clause and spousal-privilege rights was voluntary.

We also agree with the state’s argument that Mrs. Lasnetski’s repetition to Kujawa of statements made by appellant waived the spousal privilege as to those statements. See Minn.Stat. § 595.02, subd. 1(a) (2002) (“A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent”). The spousal privilege is intended to protect spouses from testifying against each other, not to prevent a third party testifying to a conversation held between the husband and wife. State v. Schifsky, 243 Minn. 533, 539, 69 N.W.2d 89, 93-94 (1955). And the privilege does not prevent a third-party witness from testifying to communications between the spouses even if the presence of the third party is not visible to a husband or wife. Id. at 539, 69 N.W.2d at 94. Here, Kujawa testified to conversations Mrs. Lasnetski voluntarily repeated to him that she originally had with appellant. Therefore, the spousal privilege does not bar the testimony.

Finally, the state argues that (1) the statements made by appellant to Mrs. Lasnetski are excluded from the definition of hearsay as admissions by a party-opponent and that (2) the statements made by Mrs. Lasnetski to Kujawa are admissible as an excited utterance, or under the residual exception to the hearsay rule. We agree. Hearsay included within hearsay is not excluded from evidence if each part of the combined hearsay statements qualifies as an exception or is otherwise excluded from the hearsay rule. Minn. R. Evid. 805. First, appellant’s statement to Mrs. Lasnetski that he shot at Stehn constitutes an admission by a party-opponent to one of the elements of first-degree assault and, therefore, is not hearsay. See Minn. R. Evid. 801(d)(2)(A).

Second, the district court admitted Mrs. Lasnetski’s statements to Kujawa as excited utterances. See Minn. R. Evid. 803(2) (permitting hearsay consisting of “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” regardless of whether declarant is available to testify). The district court concluded that Mrs. Lasnetski reported her conversations with appellant during a stressful situation in which her primary concern was the safety of her husband. At.trial, Mrs. Lasnetski testified that this situation was the most stressful event of her entire life, analogizing the agony she heard in her husband’s voice to an injured animal or one of her children being tortured. Additionally, the events took place over the course of many hours, exacerbating the stressful nature of the situation. It was in the context of this exceptionally traumatic situation that she reported appellant’s statements to Kujawa. Based on these facts, we agree with the district court that Mrs. Lasnetski’s nontes-timonal hearsay statements to Kujawa qualify as excited utterances and, therefore, are independently admissible as an exception to the hearsay rule.

II.

Character Evidence

Appellant contends the district court erred in refusing to allow him to present witnesses to testify about his character for truthfulness. At a pretrial hearing, appellant's counsel made a motion requesting that character evidence pertaining to appellant’s truthfulness or honesty be admitted at trial. The district court held that appellant had a right to present general character evidence — subject to rebuttal by the state — but could not present character evidence of truthfulness or honesty, because such evidence was not a pertinent trait of the offense charged. See Minn. R. Evid. 404(a)(1) (allowing accused to present character evidence that is of a pertinent trait of accused’s character); State v. Miller, 396 N.W.2d 903, 906 (Minn.App.1986) (“Only ‘pertinent traits’ — those involved in the offense charged — are within the scope of Minn. R. Evid. 404(a)(1).”). Additionally, the district court found that appellant could not introduce evidence of truthfulness or honesty under Rule 608, because at the end of its case-in-chief the state had not yet attacked appellant’s character for truthfulness. See Minn. R. Evid. 608(a)(2) (“[E]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”). : ■

“Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.” Amos, 658 N.W.2d at 203. Appellant carries the burden of establishing that the district court abused its discretion and that the error was prejudicial. Id. We agree that appellant’s character for truthfulness is not a pertinent trait of either assault in the first or second degree. See Minn.Stat. §§ 609.221, 609.222 (2002) (listing assault factors such as great bodily harm and assault with a dangerous weapon). Additionally, the state did not put appellant’s character in issue during or after its case-in-chief, so appellant could not introduce evidence of truthfulness under Minn. R. Evid. 608(a)(2). Thus, the district court did not abuse its discretion by excluding evidence regarding appellant’s character for truthfulness.

III.

Prosecutorial Misconduct

Appellant next argues that the state deprived him of his right to a fair trial by engaging in prejudicial misconduct. A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Atkins, 543 N.W.2d 642, 648 (Minn.1996). Because appellant failed to object at trial to thé alleged misconduct and did not seek a curative instruction, we review the allegations under the plain-error rule, under which we ask whether the alleged misconduct affected substantial rights that had the effect of depriving the appellant of a fair trial. Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996).

Essentially, appellant asserts two instances of prosecutorial misconduct. First, appellant argues that the prosecutor’s questioning of appellant and Mrs. Lasnetski regarding their “severe marital problems’’ constitutes misconduct. Prior to trial, appellant made a motion in limine, which the district court granted, to exclude all references to an alleged extra-marital affair of Mrs. Lasnetski. During the state’s case no reference was made to the alleged extra-marital affair. But appellant’s counsel opened the door to questioning by asking appellant and Mrs. Lasnet-ski about marital difficulties between the two that resulted in their separation and appellant’s depression. On cross-examination, the prosecutor questioned the witnesses regarding the marital difficulties and a rumor about their relationship but made no reference to the alleged extramarital affair.

When appellant’s counsel raised the marital relations issue in his direct examination of appellant and Mrs. Lasnetski, the prosecutor was free to address the same issue on cross-examination of those witnesses. See State v. Patterson, 493 N.W.2d 577, 580 (Minn.App.1992) (“[T]he Defendant opened the door himself by his own statement. It would have been unfair to the State’s case to let that testimony that he offered, that he volunteered as a matter of fact, go unanswered[.]”). Accordingly, we. conclude that the prosecutor’s questioning of appellant and Mrs. Lasnetski did not constitute prosecutorial misconduct.

Next, appellant argues that the prosecutor committed misconduct four times during closing argument. First, the prosecutor stated: “You’ve heard a lot of stuff here in the last, third day coming up here now which probably isn’t very important. ... I believe a lot of it was really hiding the ball.” . The state contends that these statements related to the importance of the evidence presented by appellant and were not the prosecutor’s personal opinions concerning the merits of the case or the credibility of the witnesses.

During closing argument, the prosecutor is afforded considerable latitude and the law does not require that a colorless argument be. made. State v. Smith, 541 N.W.2d 584, 589 (Minn.1996). The prosecutor has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.” Id.; but see State v. Prettyman, 293 Minn. 493, 495, 198 N.W.2d 156, 158 (1972) (stating it is impermissible for prosecutor to make comments such as “I think”). Based on the strength of the evidence against appellant and the otherwise balanced nature of the case presented to the jury, it is unlikely these limited comments significantly prejudiced appellant and affected the jurors’ ultimate decision. Consequently, we conclude that the prosecutor’s comments did not rise to the level of plain error.

Second, appellant argues that the prosecutor committed misconduct by misstating the burden of proof. See State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000) (misstating burden of proof constitutes prosecutorial misconduct). The prosecutor made the following statement:

I’m before you here now in my closing arguments to explain to you what the final charges are in this matter, what the elements of those charges are, and what I believe the facts are with regard to those elements of those crimes to assist you in determining guilt or innocence of the defendant, Jeffrey Lasnet-ski.

The state argues that the burden of proof was not misstated, but that even if it was, the district court’s jury instructions were sufficient to express the proper burden. We agree. By noting the jury would be “determining guilt or innocence,” the prosecutor was not implying that there was no burden of proof as to those alternatives.

A prosecutor’s misstatement of the burden of proof will not require reversal if the district court fully instructed the jury on the correct burden of proof. State v. Trimble, 371 N.W.2d 921, 926-27 (Minn.App.1985), review denied (Minn. Oct. 11, 1985). Here, because the district court accurately and sufficiently instructed the jury on the burden of proof, we conclude that any misstatement by the prosecutor was not prejudicial.

Third, appellant challenges the prosecutor’s comments that much of the evidence presented was meant to “hid[e] the ball,” and that the jury should not be misled by appellant’s counsel’s stories and arguments. Appellant asserts that these comments constitute disparagement of appellant’s counsel and question his trustworthiness.

The prosecutor’s comments, however, do not rise to the level of disparaging appellant’s counsel. See State v. Brown, 368 N.W.2d 12, 13 (Minn.App.1985) (holding that prosecutor’s characterization of defense counsel’s argument as a “smoke screen” or “non-issue” was not improper), review denied (Minn. July 11, 1985). Instead, the prosecutor’s comments were an attempt to counter specific statements or arguments previously made by appellant’s counsel. We have reviewed the record and find no credible evidence that the prosecutor challenged the trustworthiness of appellant’s counsel, suggested that counsel was trying to mislead the jury, or disparaged counsel.

Fourth, appellant argues that the prosécutor minimized the importance of the trial by stating: “I know this has taken a long time already and I do also know that this is New Year’s Eve and you perhaps have some other things on your mind here as well.” Appellant argues that this statement improperly invited the jury to dispose of the case as quickly as possible. But appellant fails to provide any legal support for this claim. The prosecutor’s statement could also be interpreted as a gesture of appreciation, acknowledging that the jury’s service was being performed over the holidays and during a time when the jurors might have other things occurring in their lives. Therefore, we conclude that this comment did not constitute misconduct.-

Appellant asserts other claims of prose-cutorial misconduct, for example, that the prosecutor improperly advised the jury regarding issues of intent and mental capacity, as well as arguing that appellant would state whatever was necessary to be found not guilty. We have carefully reviewed appellant’s claims of prosecutorial misconduct during closing argument and conclude that none of the claims rise to the level of plain error.

DECISION

Because we conclude that Mrs. Lasnet-ski’s excited utterances were not “testimonial” hearsay under- Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), it was not error forthe district court to admit those statements. Additionally, when appellant called Mrs. Lasnetski to testify, he waived his right to challenge the admission of her out-of-court statements under the Sixth Amendment’s Confrontation Clause. The district court also did not abuse its discretion by excluding appellant’s offered character testimony regarding truthfulness becáuse the testimony was not pertinent to the charged crimes and the prosecutor did not attack appellant’s propensity for truthfulness. Finally, under the plain-error rule, appellant failed to establish prosecutorial misconduct that deprived him of a fair trial.

Affirmed.

      . The district court also determined that Ku-jawa could testify to Mrs. Lasnetski’s statements based on the ''catch-all” exception to the hearsay rule. Minn. R. Evid. 804(b)(5): Because we conclude that the statements are admissible as excited utterances, we do not reach this issue.


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Relator, v. COMMISSIONER OF MINNESOTA POLLUTION CONTROL AGENCY, Respondent, City of St. Cloud, Respondent.
    No. A04-1323.
    Court of Appeals of Minnesota.
    May 24, 2005.

      Janette K. Brimmer, Minnesota ■ Center for Environmental Advocacy, St. Paul, MN, for relator.
    Mike Hatch, Attorney General, Robert B. Roche, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Minnesota Pollution Control Agency.
    Christopher M. Hood, Steven W. Nyhus, Flaherty & Hood, P.A., St. Paul, MN, for respondent City of St. Cloud.
    Considered and decided by WILLIS, Presiding Judge, STÓNEBURNÉR, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

This appeal challenges administrative approval of a wastewater treatment permit by respondent Minnesota Pollution Control Agency (the agency). Relator Minnesota Center for Environmental Advocacy argues that (1) the agency changed its construction of Minn. R. 7050.0211, subp. la (2003) (phosphorus removal rule), in a manner that is arbitrary, resulting in the Coon Rapids Dam Pool not being protected as a reservoir; (2) the agency’s test for determining whether allowing the treatment plant would affect the reservoir is too narrow; and (3) the agency improperly put the burden of proof on those opposing the permit rather than on the applicant, and the applicant did not carry that burden. We affirm.

FACTS

Excessive amounts of algae can decrease water quality, and phosphorus can prompt the growth of algae. In the 1970’s, the agency adopted a rule stating that “[wjhere the discharge of effluent is directly to or affects a lake or reservoir, phosphorus removal to one milligram per liter [lmg/L] shall be required.” Minn. R. 7050.0211, subp. la (2003). The rule does not define “affect,” nor does it define “reservoir.” In its initial applications of the phosphorus rule, the agency (1) interpreted “affect” to require a measurable impact on the water in question; and (2) used a 50-mile rule of thumb, under which bodies of water more than 50 miles downstream from a wastewater discharge site were deemed not affected by the discharge.

Also in the 1970s, respondent City of St. Cloud (the city) obtained a permit to operate a water treatment plant that discharges wastewater into the Mississippi River. The discharge occurs more than 50 miles upstream from the Coon Rapids Dam Pool, a pool created by a dam on the Mississippi River at Coon Rapids. The city’s permit must be renewed every five years, and the phosphorus rule is involved in the reper-mitting process. Lake Pepin and Spring Lake, other water bodies involved in these proceedings, are downstream from Coon Rapids.

As the result of the agency’s 1996 study of the impact of phosphorus on the state’s water systems, a 1997 task force report recommended that the phosphorus rule be modified to address the impact of phosphorus on rivers. The agency board did not vote on whether to adopt, as agency policy, the task force’s recommendations. Although the agency has not formulated a policy on discharge affects on flowing river water, in March 2000, after various public meetings and comment periods, the agency promulgated a strategy that governs other specified affects (the phosphorus strategy).

The 2000 strategy (1) states that the agency will, under the phosphorus rule, require a 1 mg/L limit on phosphorus in wastewater discharge if the discharge affects a lake or reservoir and, under certain other circumstances, require a permit applicant to provide a phosphorus management plan; (2) defines “affects” and “measurable impact” in terms of the detrimental response to phosphorus in a body of water and the individual contribution of the discharge in causing any of certain defined adverse changes; (3) defines “lake” as a water body with a lake identification number supplied by the Minnesota Department of Natural Resources (DNR) in the DNR’s Bulletin 25, “with some exceptions”; (4) recommends using water residence time (the amount of time water will spend within a given geographic feature) to determine whether navigational pools would be treated as a lake, or as a river for purposes of the phosphorus rule; and (5) notes that the lake/navigational pool/residence-time aspects of the phosphorus strategy mean that the agency adopts the DNR list of lakes in'Bulletin 25, with certain exceptions.

In the 2000 proceedings to renew the city’s discharge permit, the agency made a preliminary determination to reissue the city’s permit without a lmg/L limit on the city’s phosphorus discharge, requiring, instead, that the city submit a phosphorus management plan, with its next (2005) permit-renewal application. Relator sought, and the agency granted, a contested-ease hearing on whether the city’s discharge triggered the 1 mg/L limit on phosphorus discharge by affecting a lake or reservoir under the phosphorus rule. Relator essentially argued that (1) the city’s discharge affects the Coon Rapids Dam Pool and Lake Pepin, among other downstream waters; (2) the dam pool is a reservoir under the phosphorus rule; and therefore (3) the phosphorus rule requires a lmg/L limit on the phosphorus in the water discharged by the city’s plant.

After discovery, the city moved for a summary determination, arguing that the phosphorus rule’s discharge limit does not apply because, under the rule, the Coon Rapids Dam Pool is not a reservoir, and relator did not show that the' city’s discharge affects downstream waters. An administrative law judge (ALJ) then proposed a summary disposition in the city’s favor. The proposed ruling assumed that the dam pool was a reservoir under the phosphorus rule for purposes of the motion but indicated that relator had not shown that the city’s discharge affects downstream waters. The agency adopted the proposed order. On relator’s initial appeal, this court ruled that (1) the agency had partially misinterpreted the phosphorus rule, and a contested-case hearing was required to determine whether, under a correct reading of the rule, the city’s discharge “affects” downstream waters; and (2) the contested-case hearing should also address whether the Coon Rapids Dam Pool is a reservoir for purposes of the phosphorus rule because that fact would impact whether the phosphorus rule is applicable to the pool. In Re City of St. Cloud Wastewater Treatment Facility, No. C3-03-75, 2003 WL 22136314, at *5 (Minn. App. Sept.12, 2003) (St. Cloud I).

On remand, the parties disagreed on who had the burden of proof. The ALJ issued a prehearing order stating relator had the burden of proof under Minn. Rules 1400.7300, subp. 5 (2003). After a hearing on the merits, the ALJ issued a proposed ruling that reaffirmed its prehearing ruling that relator had the burden of proof; ruled that, for purposes of-the phosphorus rule, Coon Rapids Dam Pool is not a reservoir; and ruled that relator, had not traced to the city’s discharge , any effects of phosphorus in downstream waters. With minor alterations, the agency adopted the proposed order.

ISSUES

1. Did the agency correctly rule that the Coon Rapids Dam Pool is not a reservoir?

2. Did the agency incorrectly place the burden of proof on relator?

3. Did the agency misapply the phosphorus rule'in determining that relator failed to show that the city’s wastewater discharge affects downstream waters?

ANALYSIS

I.

Based on its reading of the phosphorus rule to define a reservoir in terms of the residence time of the water, the agency ruled that the Coon Rapids Dam Pool is not a reservoir because the residence time of the water, which was found to be .44-1.9 days, is “too short to constitute a reservoir and [the Coon Rapids Damp Pool] does not have an adequate volume of water to support treatment of this feature as anything other than a stretch of river.” Alleging the existence of preferable alternative methods for determining whether a body of water is a reservoir or should otherwise be protected by the phosphorus rule’s limit on phosphorus discharge, relator challenges the agency’s reading of the phosphorus rule. Although word meanings are generally a matter of law, “considerable deference” is given to the agency’s construction of its own regulations; “[i]f a regulation is ambiguous, agency interpretation will generally be upheld if it is reasonable.” St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn.1989). (citations and footnote omitted).

Relator argues that the phosphorus rule should protect the Coon Rapids Dam Pool because the pool fits the general-parlance definition of reservoir, the water in the pool is used for recreation, and the phosphorus rule was intended to protect state waters used for recreation. Minn. R. 7050.0211, subp. la, the phosphorus rule, limits phosphorus discharge to 1 mg/L if the discharge at issue “is directly to or affects a lake or reservoir,” is to be given its plain meaning. In re City of Owatonna’s NPDES/SDS Proposed Permit Reissuance, 672 N.W.2d 921, 926 (Minn.App.2004). A plain reading of the rules shows that it applies to discharge affecting a lake or reservoir, but the rule does not include language making it relevant to assess the use to which the water in the body is put; we reject relator’s argument to the contrary. Cf. id. at 928 (noting that the agency erred by denying a contested-case hearing based in part on economic considerations because “the phosphorus rule does not take into account economic considerations”).

Relator also notes that, in implementing the phosphorus strategy, the agency changed the analysis it used to determine whether a water body is a reservoir or otherwise protected by- the phosphorus rule’s discharge limit to begin considering whether the “residence time” of the water in question is at least 14 days. Relator argues that this was “a change in longstanding interpretation and practice” to an arbitrary 14-day residence-time rule. We initially note that before use of the 14-day residence-time rule of thumb, the agency used the 50-mile rule-of-thumb, and that standard would have deemed the Coon Rapids Dam Pool and waters further downstream unaffected by the city’s discharge. Thus, even if we found cause to reinstate prior practice, this would not require imposition of the discharge limit that relator seeks.

In any event, much of relator’s argument that the agency’s use of a 14-day residence period is arbitrary involves evidence that algae responds positively to phosphorus, even in moving water like a river. Therefore, relator argues, this court should reject as unreasonable the agency’s new residence-time based method of identifying the waters protected by the phosphorus rule’s phosphorus discharge limit. For four reasons, we decline to do so. First, although the rule is phrased in terms of protecting “lakes” and “reservoirs” from the effects of phosphorus, relator’s argument tries to use the possible effects of phosphorus to define bodies of water to be protected. We will not expand the coverage of the rule from “lakes” and “reservoirs” to bodies of water impacted by phosphorus. Second, the 14-day residence time standard is not absolute: consistent with case law, the agency. admits that a 14-day residence-time is not a “litmus test” for determining whether a water body is reservoir and that the phosphorus strategy “is guidance only.” See id. at 926 (stating the phosphorus strategy, “by its own terms, is ‘not intended to be a rule and does not create any rights, substantive or procedural.’ ”). Third, the agency’s use of .a 14-day residence time as a nondisposi-tive factor in determining whether a body of water is a reservoir, shows that the agency’s method of deciding what constitutes a reservoir is sufficiently flexible that-it can address water bodies on a case-by-case basis. And relator does not explain how a decision can be arbitrary when the decision is made based on generally applicable guidelines that have sufficient flexibility to allow case-by-case determinations that will, even in unusual cases, achieve the goals that the rule and the strategy are meant to attain. Fourth, because the agency’s use of a 14-day-residence-time guideline is reasonable, we are required to defer to its reading of any ambiguity in the rule. St. Otto’s Home, 437 N.W.2d at 40.

Relator also challenges the agency’s refusal to classify the Coon Rapids Dam Pool as a reservoir. Relator alleges that “Finding No. 46,” which addresses the volume of the pool, is not supported by the record, and that, in any event, the record does not show that the volume of a body of water is relevant to whether that body of water should be protected by the phosphorus rule. But finding 46 addresses a phosphorus study done on Lake Pepin and does not mention the Coon Rapids Dam Pool. Also, whether a body of water is a reservoir permissibly requires consideration of the water’s residence time. And the record shows that residence time is related to the volume of water in the body of water at issue.

The use to which water is put does not bear on the applicability of the phosphorus rule. Also, because the phosphorus rule is designed to protect lakes and reservoirs, the mere fact that water is affected by phosphorus does not necessarily require imposition of the phosphorus discharge limit of the phosphorus rule. Further, the agency’s 14-day residence-time guideline for identifying affected lakes and reservoirs is not arbitrary. Therefore, we affirm the determination that the Coon Rapids Dam Pool is not a reservoir protected by the phosphorus discharge limit of the phosphorus rule.

II.

The agency ruled that “[a]s the party objecting to the action to be taken in this matter, [relator] has the burden of demonstrating that its proposed action is required by a preponderance of the evidence.” Relator objects to this ruling, arguing that because the city is seeking the permit, it is the city’s burden to show that the discharge limit in the phosphorus rule does not apply to its permit.

The rules regarding administrative proceedings state that “[t]he party proposing that certain action be taken must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard.” Minn. R. 1400.7300, subp. 5 (2003). Here, the original discharge permit was issued in the 1970s, and the agency’s proposed draft of the permit that would be (re)issued in these proceedings required the city to develop a phosphorus management plan but did not impose the limit established by the phosphorus rule; relator requested a contested-case hearing to determine, among other things, whether the phosphorus rule applied because discharge affected a lake or reservoir. St. Cloud I, No. C3-03-75, 2003 WL 22136314 at *2. Because it is relator rather than the city or the agency that is seeking to have the limit added to the permit, and because it is the imposition of that limit that is at issue in these proceedings, under Minn. R. 1400.7300,.subp. 5, relator is the party proposing action and has the burden of proof.

Relator also argues that the city failed to submit any evidence regarding the effects of its water discharge in support of its application to reissue its permit. But the rules require the agency, after a permit application is complete, to make a preliminary determination regarding whether a permit will be issued. Minn. R. 7001.0100 (2003). And here, the agency’s original preliminary determination was to reissue St. Cloud’s permit, and relator was challenging the terms of that permit.

III.

In addressing whether phosphorus “affects” a body'of water, the agency determines whether phosphorus creates a “measurable impact” in the adverse reactions to phosphorus by the lake or reservoir being considered and whether those adverse effects can be traced to a particular source of phosphorus. Relator argues that the agency’s application’of “affects” is too narrow and is contrary to the agency’s recognition that algae can form in rivers before it reaches a lake or reservoir and “affect” the lake or reservoir when the river deposits the algae there. Because we affirm the decision that the Coon Rapids Dam Pool is not a reservoir for phosphorus-rule purposes, we do not address relator’s argument on this point regarding the pool.

The agency is aware that algae can. grow in a river, that its current phosphorus rule and phosphorus strategy do not adequately address the impact of phosphorus on rivers, and that questions still exist on that topic: the agency admits that the 1996 phosphorus study generated recommendations that the phosphorus rule be modified to address the impact of phosphorus on rivers. But these recommendations have not been adopted as policy by the agency. That the unmodified rule did not adequately address rivers is consistent with the discussion in the phosphorus strategy stating that

[when the phosphorus rule was] crafted in the 1970s little or no attention was paid to the impact of nutrients on flowing waters (i.e., rivers) because it was believed that the very short residence time or high turnover rates did not allow algae to fully utilize available nutrients and produce nuisance blooms. In recent years, other researchers (and we) have begun to take a closer look at nutrient impacts on flowing waters and have recognized that excess nutrients will contribute to algae growth in rivers. However, questions remain on [listing various questions].

To invoke the discharge limitation of the phosphorus rule because algae that grows in the Mississippi River between St. Cloud and Lake Pepin affects Lake Pepin would be to (1) require the agency to apply the phosphorus rule to a situation (river-grown algae) for which the rule was not designed; (2) impose the discharge limit when, despite not just an opportunity but a recommendation to apply the rule, the agency did not do so and did not do so because, among other things, the agency believes that there are significant unanswered questions about how phosphorus can and should be managed in rivers; and. (3) ignore the fact that between St. Cloud’s wastewater discharge and Lake Pepin, a substantial amount of phosphorus is discharged into the Mississippi River by the cities of Minneapolis and St. Paul. Under these circumstances, we will not require the agency to impose the phosphorus rule’s discharge limit for lakes and reservoirs to St. Cloud’s discharge into the Mississippi River simply because the effect the phosphorus has on the river (the river-grown algae) allegedly has an effect on downstream water bodies.

In addressing whether St. Cloud’s discharge “affects” Lake Pepin, the agency required both that the St. Cloud’s phosphorus discharge measurably affect the lake and that the effect be traceable to that discharge. Arguing that a mere phosphorus-related contribution to an algae problem is a sufficient effect to invoke the rule’s discharge limit, relator challenges the requirement of tracing the effects of the phosphorus to a particular source before invoking the discharge limit. Relator also cites various sources for the proposition that the phosphorus rule was intended to be applied broadly, even in cases involving discharges that are de minimis. Therefore, relator concludes, the agency should have applied the discharge limit of the phosphorus rule here. But St. Cloud I has already rejected the idea that a nont-raceable (or nontraced) contribution to an existing algae problem is sufficient to invoke the phosphorus rule here:

We agree with the [agency’s] arguments that the Statement of Need and Reasonableness requires a measurement of individual impact prior to application of the phosphorus rule and the phosphorus rule'cannot be triggered merely by measuring--the cumulative impact of several discharge sources upon a lake or reservoir or by presuming a soured that discharges phosphorus has a measurable effect on a lake or reservoir.

St. Cloud I, 2003 WL 22136314 at *5.

A similar analysis addresses relator’s arguments that the tracing requirement is “unrealistic” because certain modeling tools are not sophisticated enough to distinguish the effects of one source of phosphorus from another. St. Cloud I does not mandate the use of a specific modeling tool to show the effects alleged. A similar analysis also addresses relator’s arguments that by requiring a showing of “a statistically significant modeled numeric quantification of [the city’s] individual impact on Lake Pepin before [the agency] will take any action to limit [St. Cloud’s] phosphorus [discharge], the [agency] has gutted the [phosphorus rule] in its ability to protect waters like Lake Pepin.”

DECISION

The Minnesota Pollution Control Agency’s method of identifying lakes and reservoirs for purposes- of Minn. R. 7050.0211, subp.- la (2003), and the phosphorus strategy are not arbitrary, and the agency correctly refused to classify the Coon Rapids Dam Pool as a reservoir under those authorities. Also, because the agency correctly placed the burden of proof on remand on relator and relator did not trace the impact of phosphorus in lakes or reservoirs downstream from the wastewater treatment plant operated by the City of St. Cloud, the agency was not required to impose the phosphorus discharge limitation of Minn. R. 7050.0211, subp. la, on the city’s wastewater treatment plant.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Relator further argues that finding 43's statement that the residence time for Lake Pepin is 19 days is incorrect and that it should be 9 days. But the finding is consistent with the statement in the phosphorus strategy that Lake Pepin "exhibits residence times of about, 19 days on average but may range from a low qf 5-r6 days at high flow to over 60 days at very low flows.” To the extent that relator argues that finding 43 was only addressing the Lake Pepin residence time to emphasize the arbitrariness of the agency’s use of a 14-day residence time for reservoirs, that argument is addressed by the agency’s admission that a 14-day residence time is not a litmus test for reservoirs.

      . This analysis also addresses relator's request that the matter be remanded for the agency to do a phosphorus-rule workup based on the impact of the city’s discharge on Spring Lake and Spring Lake’s impact on Lake Pepin.


author: WRIGHT,-Judge.

text:
    STATE of Minnesota, Respondent, v. Anthony J. BEATY, Appellant.
    No. A04-1798.
    Court of Appeals of Minnesota.
    May 24, 2005.

      John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Michael K. Riley, Nicollet County Attorney, St. Peter, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and MINGE, Judge.
   OPINION

WRIGHT,-Judge.

Appellant challénges the duration of his sentence first imposed at a probation-revocation hearing, arguing that the district court, by vacating the stay of imposition and imposing and executing a sentence that is an upward durational departure from the Minnesota Sentencing Guidelines, violated appellant’s Sixth Amendment right to a jury trial as recognized in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We reverse appellant’s sentence and remand this matter to the district court for reconsideration of the sentence in light of the new rule announced in Blakely.

FACTS

In January 2000, L.B. obtained an order for protection against appellant Anthony Beaty. Three months later, L.B. reported to law enforcement that Beaty sent a letter to her-home, -in violation of the order for protection. In the letter, Beaty called L.B. derogatory names and threatened L.B.’s life. Beaty was subsequently charged with violation of an order for protection, - in violation of Minn.Stat. § 518B.01, subd. 14(d)(1) (1998), and ter-roristic threats, in violation of Minn.Stat. § 609.713, subd. 1 (1998).

Beaty pleaded guilty to both offenses. At the sentencing hearing on October 2, 2000, the district court imposed the presumptive guidelines sentence of 18 months’ imprisonment with a stay of execution for the terroristic-threats offense. For the conviction of violation of an order for protection, the district court stayed the imposition of a sentence and placed Beaty on supervised probation for five years.

Several years later, Beaty was alleged to be in violation of the conditions of his probation. At the probation-revocation hearing on June 23, 2004, Beaty admitted the violations. The district court revoked Beaty’s probation and executed the 18-month sentence previously imposed on the terroristic-threats conviction. The district court then vacated the stay of imposition on the conviction of violation of" an order for protection and imposed a 36-month executed sentence, to be served concurrently. This sentence was an upward du-rational departure from the presumptive guidelines sentence. The district court’s reasons for imposing the upward departure were that (1) Beaty repeatedly violated the order for protection; (2) L.B. suffered extreme advérse effects; and (3) probation did not deter Beaty from violating the order for protection. The next day, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This appeal followed.

ISSUE

Does Blakely v. Washington apply retroactively to a pending appeal arising from a probation-revocation proceeding in which the district court vacated a stay of imposition and imposed a sentence that is an upward durational departure from the Minnesota Sentencing Guidelines?

ANALYSIS

Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Beaty argues that the upward du-rational departure imposed following the vacation of a stay of imposition violates his Sixth Amendment right to a jury trial. In Blakely, the United States Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). The Blakely 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 jury verdict or admitted by the defendant.” Id. at 2537. Accordingly, 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. Blakely announced a new constitutional rule that was not dictated by the holding of Apprendi. State v. Houston, 689 N.W.2d 556, 559 (Minn.App.2004), review granted (Minn. Jan. 20, 2005).

I.

Because the Blakely decision was released the day after Beaty’s sentence was imposed, we must first determine whether the new rule of constitutional procedure announced in Blakely applies retroactively to Beaty’s sentence imposed at the probation-revocation hearing. The determination of whether a decision applies retroactively is a legal question, which we review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002).

A new rule for the conduct of criminal prosecutions applies retroactively to all cases “pending on direct review or not yet final.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)). A case is considered final when a “judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.” Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6; O’Meara, 679 N.W.2d at 339. Conversely, a case is “pending” and, therefore, subject to the new rule if the defendant’s judgment of conviction has been rendered but all rights to appeal and certiorari have not been exhausted. Id.

In assessing when a case is “pending on direct review or not yet final,” we have generally used the date the defendant’s conviction became final without addressing the effect of a stay of imposition without a sentence duration. For instance, in State v. Petschl, 692 N.W.2d 463, 470-72 (Minn. App.2004), review denied (Minn. Jan. 20, 2005), we reasoned that Blakely does not apply retroactively on collateral review of a conviction that was final before Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. In State v. Houston, 689 N.W.2d 556, 560 (Minn.App.2004), revieiv granted (Minn. Jan. 20, 2005), we held that Blakely does not apply retroactively on collateral review of a conviction that was final after Apprendi And in State v. Losh, 694 N.W.2d 98, 101 (Minn. App.2005), we held that Blakely does not apply retroactively to a pending probation-revocation appeal from an order executing a sentence previously imposed because the defendant’s conviction had become final.

In all of these cases, however, the district court pronounced the sentence — in the form of an upward durational departure — at the sentencing hearing when the judgment of conviction was entered. Because the sentence had been imposed, the defendant was able to challenge the upward durational departure during the 90-day-direct-appeal period, but failed to do so.

Because the district court stayed the imposition of Beaty’s sentence, Beaty’s circumstances differ significantly. Not until the day before Blakely was released did the district court vacate Beaty’s stay of imposition and impose a sentence that was an upward durational departure from the sentencing guidelines. Because' Beaty could not have known the duration of his sentence before the stay of imposition was vacated, the date the sentence was imposed marked the first opportunity for Beaty to appeal an upward departure imposed in violation of the Sixth Amendment.

In United States v. Martin, a case addressing the retroactivity of a modification to the standard of review for sentencing departures, the First, Circuit concluded that Griffith compels courts to “apply procedural changes retroactively to all sentences that are not final, even if such application might result in disadvantage to one of the parties.” 363 F.3d 25, 46 (1st Cir. 2004). The Martin court later determined, “[bjeeause [the] sentence is still subject to appeal, it is not ‘final’ for retro-activity purposes.” Id. at 46 n. 35. The Martin court’s reasoning is persuasive here.

In applying Griffith’s, retroactivity standard — that a new rule for the conduct of criminal prosecutions applies retroactively to all “cases ... not yet final” — we consider the context of the new rule being announced. Griffith addressed the retro-activity of the rule announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a rule pertaining to the validity of the conviction, not the severity of the sentence. 479 U.S. at 318, 107 S.Ct. at 710-11; see also Richardson v. Gramley, 998 F.2d 463, 466 (7th Cir.1993). As such, the date the conviction became final was the material date from which to assess retroactivity in Griffith. The Blakely decision, however, created a new rule governing sentencing departures. Thus, as in Martin, the date the duration of the sentence becomes final is the lodestar for determining retroactivity.

When the district court stays the imposition of a sentence, no sentence is pronounced and imposition of a sentence is stayed on the condition that the defendant satisfies the terms of probation. Minn. Sent. Guidelines cmt. II.C.04; see also State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (stating that when district court stays imposition of sentence, the duration of the sentence is not pronounced); State v. Stafford, 368 N.W.2d 364, 366 (Minn. App.1985) (noting court that vacated stay of imposition was the “first court to actually sentence appellant”). Upon vacation of the stay of imposition, the district court has the discretion to “impose any lawful sentence.” State v. Schwab, 404 N.W.2d 284, 285 (Minn.App.1987) (quotation omitted), review denied (Minn. June 9, 1987). Thus, the point at which the district court vacates the stay and imposes the sentence is the first opportunity to appeal the duration of the sentence. See id. (appealing from sentence imposed at probation-revocation hearing more than two years after defendant entered guilty plea); see also State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987) (allowing defendant to challenge sentence when stay of execution was revoked at probation-violation hearing).

Beaty could not have known of the upward durational departure before the stay of imposition was vacated. June 23, 2004, the date of the probation-revocation hearing at which the sentence constituting an upward durational departure was imposed, marked the first opportunity for Beaty to appeal the sentence. For all practical purposes, the 90-day period to file a “direct appeal” of Beaty’s upward durational departure had just begun. See Fields, 416 N.W.2d at 736 (reasoning that because defendant lacks motivation to appeal upward durational departure when its- execution has been stayed, probation-revocation appeal should be treated like direct appeal). Because Beaty’s sentence was still subject to appeal when Blakely was released- on June 24, 2004, Beaty’s sentence was “not final for retroactivity purposes.” Martin, 363 F.3d at 46 n. 35 (quotation omitted).-

Accordingly, we hold that, when a district court stays the imposition of a sentence, thereby precluding a challenge to the sentence duration on direct review, and later vacates the stay and imposes a sentence that is an upward durational departure, Blakely applies retroactively to a defendant’s pending appeal of the sentence imposed because the sentence was not final when Blakely was released.

Our conclusion comports with the principles underlying the Griffith decision. Griffith’s retroactivity analysis reflects the judiciary’s constitutional obligation to avoid treating similarly situated defendants differently. 479 U.S. at 323, 107 S.Ct. at 713. The Griffith court reasoned that any retroactivity analysis must foreclose “the actual inequity that results when the Court chooses which- of many similarly situated defendants should be the ‘chance beneficiary’ of a new rule.” Id. (quotation omitted). If Beaty were deprived of the benefit of Blakely, Beaty would be treated differently from other defendants whose sentence duration was pronounced on the same day that Beaty’s sentence duration was pronounced. Thus, every other defendant who received an executed sentence on June 23, 2004 — the date in which Beaty also received an executed sentence — could benefit from the Blakely decision because that defendant’s direct-appeal period would not have expired when Blakely was released. The Blakely decision pertains to the defendant’s constitutional rights as they relate to sentencing, not to the accuracy of the conviction. Disparate treatment of similarly situated defendants would result if we held that, even though Beaty’s sentence was not imposed until June 2004, the date of conviction in 2000 controls whether the Blakely decision applies to Beaty’s sentence.

II.

Having concluded that Blakely applies retroactively to Beaty’s appeal, we next address Beaty’s central contention— that the imposition of the upward dura-tional departure based on judicial findings of fact violates his right to a jury trial announced in Blakely.

The Minnesota Supreme Court has held that an upward durational departure from the Minnesota Sentencing Guidelines based on judicial findings violates a defendant’s right to a jury trial under Blakely. State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004) (per curiam); see also State v. Conger, 687 N.W.2d 639, 644-45 (Minn.App.2004) (applying Blakely to upward du-rational departures imposed under Minnesota Sentencing Guidelines and holding that, when sentence is imposed pursuant to a guilty plea, reasons for departing du-rationally must be based solely on facts admitted by the defendant), review granted (Minn. Dec. 22, 2004); State v. Saue, 688 N.W.2d 337, 344 (Minn.App.2004) (applying Blakely to upward durational departures imposed after jury trial), review granted (Minn. Jan. 20, 2005). A defendant’s admission of facts that support an upward departure is not sufficient to withstand a constitutional challenge under Blakely unless the defendant makes a knowing, voluntary, and intelligent waiver of the right to a jury trial on the aggravating factors. State v. Hagen, 690 N.W.2d 155, 158-59 (Minn.App.2004); see State v. Ross, 472 N.W.2d 651, 653 (Minn.1991) (defendant’s waiver of jury-trial rights must be knowing, intelligent, and voluntary).

Beaty pleaded guilty to violating an order for protection. The findings supporting the upward durational departure were not found by a jury. Although in the course of entering his guilty plea Beaty was informed in general terms of his right to a jury trial, he was not specifically advised that he had a right to have a jury determine any fact used to support an upward departure from the sentencing guidelines. Because Beaty did not knowingly waive his right to a jury trial on the aggravating factors, his admissions may not provide a factual basis to support the aggravating factors. Thus, the upward durational departure based on judicial findings violated Beaty’s Sixth Amendment right to a jury trial. We, therefore, reverse Beaty’s sentence and remand this matter to the district court for reconsideration of the sentence in light of the new rule announced in Blakely,

DECISION

Because the district court stayed the imposition of appellant’s sentence and appellant could not challenge the duration of his sentence until the sentence was imposed at the probation-revocation hearing, Blakely applies retroactively to appellant’s pending appeal of the sentence imposed. When the district court imposed a sentence that was an upward durational der parture from the Minnesota Sentencing Guidelines based on judicial findings, appellant’s Sixth Amendment right to a jury trial was violated.

Reversed and remanded.

      . Violation of an order for protection is a severity-level IV offense. Minn. Sent. Guidelines V. With a criminal-history score of 3, the presumptive guidelines sentence is 21 months. Minn. Sent. Guidelines IV.

      . Our holding is not in conflict with our decision in State v. Losh, 694 N.W.2d 98 (Minn.App.2005), where we concluded that Blakely does not apply retroactively to a pending probation-revocation appeal arising from the vacation of a stay of execution of a sentence. In sentencing Losh, the district court imposed the sentence but stayed its execution. Id. at 99-100. Thus, the defendant was aware of the sentence duration- — and the upward departure — at the sentencing hearing when the judgment of conviction was entered. Under the facts in Losh, the defendant could have appealed his sentence during the 90-day-di-rect-appeal period. Applying Blakely retroactively in the Losh scenario would give the defendant a "second bite at the apple.” But to fail to apply Blakely in the instant case would deprive the defendant of any bite at the apple. Beaty had no opportunity to appeal his sentence until the district court vacated the stay of imposition on June 23, 2004. For the purpose of determining Blakely's retroactive application, the difference between a stay of execution and a stay of imposition is a marked one.

      . The Shattuck court rendered its decision in an order, indicating that a full opinion would follow. 689 N.W.2d at 786. It also directed supplemental briefing to address the appropriate remedy. Id.

      . The Minnesota Supreme Court granted review in Conger but stayed further processing of that matter pending its final decision in State v. Shattuck, No. C6-03-362 (argued Nov. 30, 2004).

      . Although not raised on appeal, we note that, even without the benefit of Blakely, Beaty’s upward durational departure is unwarranted. "If the reasons given [for an upward departure] are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002). An upward departure is justified when the defendant’s conduct is "significantly more ... serious than that typically involved in the commission of the crime in question.” State v. Back, 341 N.W.2d 273, 276 (Minn.1983).
      The district court cited three reasons for the upward departure: (1) Beaty repeatedly violated the order for protection; (2) [L.B.] suffered extreme adverse effects; and (3) probation did not deter Beaty from violating the order for protection. Because the third factor reasonably supports the revocation, which Beaty does not contest, we examine only the first two factors.
      The first reason cited here is inadequate to support an upward durational departure because a departure must be based on conduct involved in the offense for which the sentence is imposed, not based on the facts of another offense or for a general course of conduct. See Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003) (holding that upward departure may not be based on uncharged offenses of which defendant was not convicted). Although Beaty sent several letters to L.B., he was charged with only two counts of violation of an order for protection. The other violations referred to by the district court either served as the basis for a separate felony conviction and thus were already considered in calculating Beaty’s sentence by increasing his criminal-history score or formed the basis for separate uncharged offenses.
      The second reason also fails to support an upward durational departure. L.B.'s reaction to Beaty's conduct does not demonstrate that Beaty’s conduct was "significantly more ... serious” than conduct typically involved in a violation of an order-for-protection offense. Beaty violated the order for protection by sending a threatening letter to L.B.’s home. Such conduct is, unfortunately, quite typical for this offense. And the district court did not base its decision on the particular vulnerability of the victim, which can be a valid basis for an upward departure.


author: HALBROOKS, Judge.

text:
    Clara L. SCHMIDT, as mother and natural guardian of Angelia R. Schmidt and Melissa L. Schmidt, minors, and Clara L. Schmidt, individually, Respondents, v. CITY OF COLUMBIA HEIGHTS, Appellant.
    No. A04-2321.
    Court of Appeals of Minnesota.
    May 24, 2005.

      Cort C. Holten, Janet Waller, Jeffrey D. Bores, Chestnut & Cambronne, P.A., Minneapolis, MN, for Respondents.
    Brian H. Gaviglio, League of Minnesota Cities, St. Paul, MN, for Appellant.
    Considered and decided by LANSING, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

HALBROOKS, Judge.

Richard Schmidt retired from the Columbia Heights police department after suffering a disabling injury in the line of duty. When Officer Schmidt later died of causes unrelated to his injury, appellant City of Columbia Heights (city) notified his family that it would no longer pay its contribution toward their health-care benefits. Respondents Clara L: Schmidt and her minor children, Angelia and Melissa (collectively, the Schmidts) sued, arguing that MinmStat. § 299A.465, subd. 1 (2004), which requires the employer of a police officer or firefighter who is disabled in the line of duty to continue to contribute to the health-care coverage for the officer’s or firefighter’s dependents “until the officer or firefighter reaches the age of 65,” obligated the city to pay its contribution until the date on which Officer Schmidt would have turned 65. The district court granted respondents’ motion for summary judgment.

The city challenges the district court’s grant of summary judgment, arguing that the plain meaning of the phrase “reaches the age of 65” conditions the payment on the officer still being alive. Because we conclude that such a reading would produce an unreasonable result and thwart the intent of the legislature, we affirm.

FACTS

The material facts in this case were stipulated to by the parties and are not in dispute. Richard Schmidt began employment with the Columbia Heights police department in 1969 and was continuously employed full time as a police officer until March 24, 2000. During the course of his employment with the city, Officer Schmidt suffered a disabling injury on May 15, 1999." As a result of that injury, Schmidt applied to the Public Employees Retirement Association of Minnesota (PERA) for early retirement and disability benefits pursuant to Minn.Stat. § 353.656, subd. 1 (2004). His application was approved, and Officer Schmidt notified the city that he would be retiring.

After receiving notice of Officer Schmidt’s retirement, the city notified him that it would continue paying its contribution for his family health coverage, which included Officer Schmidt’s wife and two minor daughters, pursuant to Minn.Stat. § 299A.465, subd. 1 (2002). The city paid its contribution for the health benefits provided to Officer Schmidt and his dependents through September 30, 2003.

On September 16, 2003, Officer Schmidt died from causes unrelated to his disability retirement. On September 24, the city notified the Schmidts that due to Officer Schmidt’s death, the city’s contribution toward their health benefits would terminate and that if the Schmidts wanted to continue coverage pursuant to Minn.Stat. § 62A.146 (2004) and the Consolidated Budget Reconciliation Act (COBRA), they would be required to pay the premium for family coverage.

The Schmidts subsequently filed a declaratory-judgment action, alleging that the city had violated Minn.Stat. § 299A.465, subd. 1, by failing to continue its contribution toward their health-care coverage. The parties stipulated to the facts, and both the city and the Schmidts moved for summary judgment. The district court filed an order granting the Schmidts’ motion and denying that of the city on August 24, 2004. Summary judgment in favor of the Schmidts was entered on August 30. An amended order, was filed on September ■ 1 to correct clerical errors and an amended summary judgment was entered on Septehiber 13. In its order, the district court reserved the issue of arrearages. The parties subsequently stipulated ■ to, the amount of arrearages, and the district court filed an order on October 13,. 2004, awarding the Schmidts the stipulated amount of $5,781.25. Final judgment was entered on November .2, 2004. This appeal follows.

ISSUE

Does Minn.Stat. § 299A.465, subd. 1 (2004), require the employer of a public safety officer who is disabled in the line of duty to continue to pay health-care benefits for the dependents of that officer when the officer dies of causes unrelated to his or her disability prior to reaching the age of 65?

ANALYSIS

The parties have stipulated to the facts in this case. The only issue before us is the proper interpretation and application of Minn.Stat. § 299A.465 (2004). “On an appeal from summary judgment, when the facts are stipulated, [this court] review[s] de novo whether the [district] court erred in its application of the law.” Sprint Spectrum LP v. Comm’r of Revenue, 676 N.W.2d 656, 658 (Minn. 2004). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). This action presents an issue of first impression: whether Minn.Stat. § 299A.465, subd. 1(c), requires the employer of a public-safety officer who is disabled in the line of duty to continue to pay health-care benefits for the dependents of that officer when the officer dies of causes unrelated to his or her disability prior to reaching the age of 65.

Our primary objective in interpreting a statute is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). When interpreting a statute, we first determine whether the statutory language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute is ambiguous when its language is “subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted). If the legislative intent “is clearly discernible from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning.” Am. Tower, 636 N.W.2d at 312; see also Minn.Stat. § 645.16. But if a statute is reasonably susceptible of more than one meaning, we apply principles of statutory construction to determine the legislature’s intent. Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002). In construing a statute, we are guided by the premise that “[t]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable” and “intends the entire statute to be effective and certain.” Minn.Stat. § 645.17(l)-(2) (2004).

The statute at issue here provides:

The employer is responsible for the continued payment of the employer’s contribution for coverage of the officer or firefighter and, if applicable, the officer’s or firefighter’s dependents. Coverage must continue for the officer or firefighter and, if applicable, the officer’s or firefighter’s dependents until the officer or firefighter reaches the age of 65. However, coverage for dependents does not have to be continued after the person is no longer a dependent.

MinmStat. § 299A.465, subd. 1(c) (emphasis added).

At oral argument, the city contended that language in other, related statutes demonstrates that if the legislature had intended the city’s contribution to continue after the officer or firefighter’s death, it could have explicitly so required. We first note that this argument was mentioned only in passing to the district court with a general reference to chapter 353 in the city’s reply brief. The city did not cite to any specific statutory language, nor is there any indication in the record that this argument was developed for the district court. Therefore, the argument might reasonably be considered to be waived. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts will generally not consider matters not argued and considered by the district court). But even if the argument is not deemed to be waived, the statutes cited by the city equally support the counterargument: if the legislature had intended the contribution requirement to expire upon the death of an officer, it could have explicitly stated so. See Minn.Stat. § 471.61, subd. 2b(e) (2004) (providing that voluntary continuation of group health insurance to a former employee’s dependents need not be extended “after the death of the former employee”). But because no such language was included by the legislature, we are left to discern the legislative intent expressed in the phrase “reaches the age of 65.”

As the district court noted:

The statute lists only two circumstances that reheve the employer of its duty to provide coverage to dependents. One circumstance is the loss of dependency status under Minn.Stat. § 62L.02, [subd.] 11 [(2004)], which is inapplicable under the facts of this case. The other circumstance that relieves the employer of its duty to cover an officer’s dependents occurs when the officer reaches the age of 65. The statute is silent regarding whether the employer’s responsibility to continue payment for the dependent’s coverage ceases following an officer’s death prior to reaching the age of 65.

(Citation omitted.)

The city argues that the statutory language is “clear and unambiguous,” and that “[t]he word ‘reaches’ means the officer must still be living.” The district court disagreed and concluded that the statutory language may be read to “require coverage until the 65th anniversary of an officer’s [birth].” Accordingly, the district court held that the city was obligated to pay benefits until “Officer Schmidt would have turned 65.” (Emphasis'added.)

Accepting the city’s interpretation would lead to an unreasonable result. If an officer must be living in order to “reach” age 65, such an event can never occur whenever an officer who has been disabled in the line of duty dies before turning 65. As the district court correctly observed,, pursuant to the statute, an employer’s obligation to pay for benefits ends only when the officer reaches age 65 or the beneficiary loses dependency status. Consequently, an employer of a disabled officer who died before turning 65 would be required to pay for the health coverage of the officer’s dependents until such time as those individuals no longer have dependent status, regardless of the officer’s age at the time of disability or death because the officer could never “reach” age 65.

But there is another reasonable interpretation of the statutory language — that espoused by the district court. One reaches the, age of 65 on the 65th anniversary of one’s birth. Accordingly, it is reasonable to interpret the statute as requiring employers to pay for health benefits until the 65th anniversary of the officer’s birth — when the officer “would have” turned 65. This interpretation has the added advantage of certainty for both the employer and the officer’s family. An officer’s birth-date remains constant and provides a clear and definite point of reference regardless of his or her age at death.

This interpretation would also effectuate the intent of the legislature. Police officers and firefighters work in hazardous conditions to protect the property and safety of the: public. The special nature of their sacrifice and contribution has been elsewhere recognized by the legislature. See Minn.Stat. § 353.63 (2004) (noting that police officers and firefighters deserve special consideration due to the hazardous character of their work). One purpose of Minn.Stat. § 299A.465, subd. 1, is to provide continued health coverage for the dependents of officers who are disabled in the line of duty. To rescind such coverage because the officer dies prior to his or her 65th birthday would frustrate this purpose and create an additional burden for those who have just lost a family member.

The statute mandates continued coverage for “the officer ... and, if applicable, the officer’s ... dependents.” Minn.Stat. § 299A.465, subd. 1(c) (emphasis added). The city argues that “[b]ecause the statute requires an employer contribution for both the officer and dependents, the provision is conjunctive. Accordingly, the [c]ity is not required to continue paying the employer’s portion just for [the Schmidts], if the disabled officer is no longer living.” (Emphasis in original.) The city thus focuses on the word “and,” suggesting that if it is no longer required to pay for both Officer Schmidt and his dependents (because the officer is no longer alive), it is not required to pay for just his dependents’ coverage.

Despite the city’s contention to the contrary, “and” and “or” are often ambiguous and open to multiple interpretations. See Am. Family, 616 N.W.2d at 281 n. 4 (noting the risk inherent in the use of conjunctions). The city reads the statute as requiring joint coverage or no coverage. But as the supreme court has noted, “and” can be read either jointly or severally. Id. Here, the intent of the legislature is best carried out by applying the several meaning of the term.

The city also contends that interpreting the statute to require payment of health benefits to an injured officer’s dependents under this subdivision until the officer would have turned 65 erases the statutory distinction between “dependents of an officer disabled in the line of duty [and] dependents of an officer killed in the line of duty.” The city correctly points out that the legislature has chosen to distinguish between these two groups in the provision of health benefits. Employers are required to provide health benefits for the dependents of officers disabled in the Une of duty until “the officer ... reaches the age of 65.” Minn.Stat. § 299A.465, subd. 1(c) (emphasis added). In contrast, for dependents of officers killed in the line of duty, “[e]overage must continue ... for the period of time that the person is a dependent up to the age of 65.” Minn. Stat. § 299A.465, subd. 2(c) (emphasis added). Thus, the benchmark for a member of the first group is the age of the officer, but the benchmark for a member of the second group is the age of the dependent. Contrary to the city’s assertion, interpreting subdivision 1(c) to require payment until the 65th anniversary of the officer’s birth would not conflate these distinct points of reference.

The city further argues that such a reading of the statute “contravenes the legislative intent to balance the need to provide health benefits for disabled officers and dependents with the need to protect the thinly-stretched budgets of the state’s political subdivisions against rapidly rising health insurance costs.” We note that the statute is silent regarding budgetary impacts on political subdivisions. Moreover, requiring the city to pay dependent health-care benefits until Officer Schmidt would have turned 65 does not impose on the city any obligations it would not have had if Officer Schmidt had not died. In fact, because the city no longer needs to pay benefits for Officer Schmidt, it has less financial responsibility than it would have if he had lived.

Minn.Stat. § 299A.465, subd. 1(c), requires that employers continue to contribute to the health coverage of the dependents of an officer who is disabled in the line of duty until that officer “reaches the age of 65.” The intention of the legislature is best effectuated by reading this language to require contribution until the 65th anniversary of the officer’s birth.

DECISION

Because holding otherwise would produce an unreasonable result and thwart the intent of the legislature, we conclude that when an officer who is disabled in the line of duty dies prior to attaining age 65, Minn.Stat. § 299A.465, subd. 1(c) (2004), requires the officer’s employer to continue to contribute to the health coverage of the officer’s dependents until the 65th anniversary of the officer’s birth. We therefore affirm the decision of the district court.

Affirmed.

      . This child's actual name is unclear. The title of appellant’s brief refers to her as "Angelia,” as does the original summons and complaint. Respondents’ motion for summary judgment refers to her as "Angela.” The title of respondents’ brief refers to her as "Angeline.”

      . The 2004 version of the statute is the same in all relevant aspects. Accordingly, the remainder of this opinion will cite to the 2004 statute.

      . .The city initially appealed from the August 30, 2004 summary judgment. By order, this court dismissed the appeal as taken from a nonappealable partial adjudication because the August judgment reserved the issue of arrearages. Schmidt v. City of Columbia Heights, No. A04-1795 (Minn.App. Oct. 29, 2004) (order). The current appeal is from the judgment entered November 2, 2004.

      . The city does not dispute the fact that respondents meet the statutory definition of dependents. See Minn.Stat. § 62L.02, subd. 11 (2004) (defining "dependent” for the purposes of Minn.Stat. § 299A.465).

      . In support of this argument, the city relies on two statutes: Minn.Stat. § 353.656 (2004) and Minn.Stat. § 471.61 (2004). Minn.Stat. § 363.656, subd. 6a(a), states that "[i]f a member who is receiving a disability benefit ... dies before attaining age 65 ..the surviving spouse shall receive a survivor benefit....” Minn.Stat. §471.61, subd. 2b(c), provides that employers are not required to extend voluntary continuation of group insurance to a former employee’s dependents "after the death of the former employee.”

      .In its reply brief, the city simply stated that "under the PERA statute [Minn.Stat. ch 353], the rights of the surviving spouse and dependent children are expressly articulated.”

      . It is, of course, possible that the officer's date of birth may be subject to dispute and thus uncertain. But in such a case, the date on which the officer turned 65 would be in contention even if the officer was still living.