author: GILBERTSON, Chief Justice.

text:
    2008 SD 69
    PROGRESSIVE HALCYON INSURANCE CO. and Carol Wellnitz, Plaintiffs and Appellees, v. Roxanne PHILIPPI, Personal Representative of the Sylvia Ruhr Estate, Deceased, Defendant and Appellant.
    No. 24596.
    Supreme Court of South Dakota.
    Argued March 26, 2008.
    Decided July 23, 2008.

      Mark J. Arndt of May & Johnson, P.C., Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.
    David R. Strait of Austin, Hinderaker, Hopper, Strait & Bratland, LLP, Water-town, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] On August 22, 2006, Carol Welln-itz (Wellnitz) and her auto insurance provider, Progressive Halcyon Insurance Co. (Progressive), filed a declaratory judgment action in the South Dakota Third Judicial Circuit seeking a determination that immunity extended to her under South Dakota’s workers’ compensation statute, SDCL 62-3-2, for an injury that she caused to Sylvia Ruhr (Ruhr). On February 8, 2007, Wellnitz and Progressive filed a motion for summary judgment under SDCL 15-6-56(c). The circuit court granted the motion. Ruhr’s estate appeals and we affirm.

FACTS AND PROCEDURE

[¶ 2.] The parties stipulated to the material facts of the case. Ruhr and Wellnitz were employed by Beverly Healthcare Center (BHC) in Milbank, South Dakota. On February 13, 2006, they were both working at BHC. Their shifts ended at approximately 10:30 p.m. As was their routine at the end of a shift, the two left the facility through the usual exit and proceeded across the adjacent BHC parking lot to their respective vehicles. Wellnitz exited the facility first, reaching her vehicle ahead of Ruhr. Wellnitz backed out of her parking space and struck and injured Ruhr as Ruhr continued to her parked vehicle. There was no showing that Wellnitz intentionally struck Ruhr.

[¶ 3.] Ruhr collected benefits from BHC’s workers’ compensation insurance provider. Ruhr then filed a claim with Progressive seeking to recover from Wellnitz’s auto insurance liability coverage. Under SDCL 62-3-2, BHC was immune from further liability due to Ruhr’s receipt of workers’ compensation benefits. Welln-itz and Progressive then filed a declaratory judgement action seeking a determination that the employer immunity provided under the statute also extended to Wellnitz as an employee of BHC. In its memorandum decision, incorporated by reference in the June 21, 2007 judgment and order, the circuit court concluded that the standard applied to establish Ruhr’s eligibility for workers’ compensation benefits under SDCL 62-3-2 also applied to Wellnitz, and established that at the time of the accident she too was an employee of BHC and thereby entitled to immunity under the statute.

[¶ 4.] On March 31, 2007, Ruhr died of causes unrelated to this accident. On July 23, 2007, Roxanne Philippi, personal representative of Ruhr’s estate (PR), was substituted in this action.

[¶ 5.] PR appeals raising the following issue:

Whether at the time of the accident, Wellnitz was an employee of BHC within the meaning of SDCL 62-3-2 so that Ruhr’s personal injury claim, filed with Wellnitz’s auto liability insurance provider, was precluded.

STANDARD OF REVIEW

In reviewing a trial court’s order granting a motion for summary judgment, [w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party.

Gakin v. City of Rapid City, 2005 SD 68, ¶ 7, 698 N.W.2d 493, 497 (internal citations omitted). “ ‘Questions of law are reviewed de novo without deference to the trial court.’ ” Thompson v. Mehlhaff, 2005 SD 69, ¶ 8, 698 N.W.2d 512, 516 (citations omitted). “Construction of workers’ compensation statutes and their application to the facts is a question of law.” Id. (citing Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 4, 620 N.W.2d 198, 200).

Statutory construction is an exercise to determine legislative intent. In analyzing statutory language we adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of statutory language.

State v. Johnson, 2004 SD 135, ¶ 5, 691 N.W.2d 319, 321 (Petition of West River Electric Assoc., 2004 SD 11, ¶ 15, 675 N.W.2d 222, 226) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 6.] Whether at the time of the accident, Wellnitz was an employee of BHC within the meaning of SDCL 62-3-2 so that Ruhr’s personal injury claim, filed with Wellnitz’s auto liability insurance provider, was precluded.

[¶ 7.] An employee’s eligibility for workers’ compensation benefits arising from an employment related injury and the employer’s immunity from liability are governed under SDCL 62-3-2. Under the statute, an employer’s immunity also extends to its officers, directors, partners and employees. SDCL 62-3-2. SDCL 62-3-2 provides:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of the employee, the employee’s personal representatives, dependents, or next of kin, on account of such injury or death against the employer or any employee, partner, officer, or director of the employer, except rights and remedies arising from intentional tort.

(Emphasis added).

[¶ 8.] PR’s appeal raises an issue of first impression — namely how one is determined to be an “employee” immune from liability under SDCL 62-3-2. PR argues that while this statute sets out a standard by which an employee’s injuries are assessed for purposes of workers’ compensation, no standard is expressly provided to assess whether a co-employee tortfeasor is an “employee” for purposes of determining if immunity under the statute applies. PR argues that by inclusion of the immunity-limiting phrase — “except rights and remedies arising from intentional tort” — the Legislature meant to imply that the re-spondeat superior standard should be applied to assess whether a co-employee tort-feasor is immune from liability. I.e., a co-employee tortfeasor is immune from liability for injury to a fellow employee only when the injurious act occurs within the scope of the tortfeasor’s employment. PR offers Saala v. McFarland, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400 (1965) in support of this argument.

a. Whether the “workers’ compensation” standard or the “respondeat superior” standard applies to the determination of whether a co-employee tortfeasor is entitled to immunity under SDCL 62-3-2.

[¶ 9.] In Saala, the California Supreme Court clarified that two standards apply in the context of workers’ compensation claims arising from employee injuries caused by a co-employee tortfeasor. 45 Cal.Rptr. 144, 403 P.2d at 403. First, the “arising out of and in the course of employment” or workers’ compensation standard is applied to determine whether an employer is liable for an employee’s injuries such that the employee is eligible for workers’ compensation benefits. Id. at 401. Second, the “scope of employment” or respondeat superior standard is applied to determine if the co-employee tortfea-sor’s injurious act occurred within the context of employment such that the co-employee too is immune from liability. Id. at 403. In other words, the co-employee tortfeasor is immune from liability for only those acts from which, under the common law, liability would have attached to his employer. Id. at 404. The court then reiterated that the standards are distinguishable:

[Tjhis court recognized ... that scope of employment defines a more restricted area of employee conduct than the customary phrase “arising out of and in the course of the employment.” We stated: “Although this court has not gone so far as to hold that every injury to an employee attending to his duties and within the course of his employment is compensable, it has, in many cases, upheld the allowance of compensation for injuries arising out of acts not strictly within the scope of the employment: returning from lunch [citation]; drinking wine because of indisposition [citation]; smoking [citation].... ”

Id. at 403 n. 3. (internal citations omitted) (first emphasis added, second emphasis original).

[¶ 10.] The dual standards discussed in Saala, however, were grounded in statute. Id. at 403. The court cited the relevant portions of the California Labor Code §§ 3600 and 3601:

Section 3600 ... states in relevant part that “Liability for the compensation provided by [the California Workers’ Compensation Code], in lieu of any other liability whatsoever to any person ... shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment ....” It is then provided in section 3601, as amended ..., that “(a) Where the conditions of compensation exist, the right to recover such compensation ... is ... the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment ....”

Id. at 401 (emphasis original). Section 3601 was amended in 1959 by the addition of the employee-immunity provision and corresponding “scope of employment” standard following a string of decisions in which the courts held that a co-employee tortfeasor was liable for injury inflicted on the job. Id. at 402-03. In holding that the California Legislature intended distinct standards to be applied in the two contexts, the court opined:

The presumption that an overall change is intended where a statute is amended following a judicial decision ... is given its full effect if section 3601 as amended is construed to change the law stated in [our prior decisions] and exempt from civil liability only a coemployee’s actions within the scope of employment, rather than those “arising out of and in the course of the employment.”

Id. at 403.

[¶ 11.] In Donnelly v. Herron, 88 Ohio St.3d 425, 727 N.E.2d 882 (2000), the Ohio Supreme Court addressed this issue. Ohio’s Revised Code § 4123.741, which codifies employer and employee tortfeasor immunity for job related injuries to co-employees, is analogous to SDCL 62-3-2 with respect to employer and employee immunity. Ohio RC 4123.741 provides:

No employee of any employer, as defined in [Ohio’s Workers’ Compensation Code], shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee’s employment, or for any death resulting from such injury or occupational disease, on the condition that such injury, occupational disease, or death is found to be compensable under [Ohio’s Workers’ Compensation Code].

(Emphasis added).

[¶ 12.] The court in Donnelly reflected on the comments of Professor Larson regarding the standard applied in California in light of its labor code:

The commonest question that arises in these cases is: which test of “course of employment” applies? Is it the workers’ compensation test [,i.e. arising out of and in the course of employment], or the vicarious liability test [,i.e. in the scope of employment]? The answer may be dictated by the wording of the immunity clause itself. In California, for example, under the statutory phrase “acting within the scope of his employment, ” suit is barred against the coem-ployee only if at the time of the injury he or she was actively engaged in some service for the employer. Accordingly, it can readily happen in California — indeed has happened — that in a marginal course of employment situation an employee will be held to have been sufficiently within the course of employment to receive workers’ compensation, but not sufficiently actively engaged in service for his or her employer to enjoy the immunity from suit conferred by the California Labor Code. Parking lot accidents are a familiar example of this marginal category, and in one such case, an employee who was struck by a coemployee’s automobile after work on the employer’s parking lot was held not barred from suing the coemployee, although the coemployee had actually been awarded workers’ compensation benefits as for an injury in the course of employment.

727 N.E.2d at 884 (quoting 6 Larson’s Workers’ Compensation Law (1999) 111-12 to 111.14, § 111.03[3]) (emphasis added). In holding that under Ohio RC 4123.741 the “workers’ compensation” test, or “arising out of and in the course of employment” standard, applies in the context of the co-employee tortfeasor as well as the injured employee, id. at 885, the court further considered the rationale of Professor Larson:

The more satisfactory test, unless expressly ruled out by statute, is that adopted by Illinois, New Jersey, Kentucky, Indiana, Oklahoma, and Florida, which simply use the regular workers’ compensation course of employment standard for this purpose. After all, there are troubles and complications enough administering one course of employment test under the act, without adding a second. By adopting the [workers’] compensation test, a court has at hand a ready-made body of cases with which to dispose of most borderline situations.

Id. at 884 (quoting 6 Larson’s Workers’ Compensation Law § 111.03[3]) (emphasis added).

[¶ 13.] Our workers’ compensation chapter, as originally codified, acted as an “all-inclusive” exclusion of any other rights and or remedies that an injured employee might have against “anybody and everybody” in exchange for benefits. Hagem- ann ex rel. Estate of Hagemann v. NJS Engineering, Inc., 2001 SD 102, ¶ 13, 632 N.W.2d 840, 846 (Gilbertson, J., concurring in result). However, in 1977 and 1978, the Legislature amended SDCL 62-3-2 to limit the exclusion by extending consequential employer immunity to only the employer’s other employees, partners, officers, and directors. SDSess Laws 1977, ch 422; SDSess Laws 1978, ch 370, § 2. Prior to amendment, SDCL 62-3-2 included the phrase “arising out of and in the course of employment” as the standard under which an injured employee could receive benefits. Notably, when the statute was amended no additional standard was included under which to assess whether a co-employee was entitled to immunity.

[¶ 14.] In Thompson v. Mehlhaff, we stated the purpose of South Dakota’s Workers’ Compensation Act:

is to provide an injured employee with an expeditious remedy independent of fault and to limit the liability of employers and fellow employees. There is an inherent trade-off in the worker’s compensation scheme. The employee is guaranteed compensation if injured on the job but the employer’s liability is limited in exchange for this certainty. The quid pro quo is liability for immunity. Therefore, “[w]orker’s compensation is the exclusive remedy for all on-the-job injuries to workers except those injuries intentionally inflicted by the employer.”

2005 SD 69, ¶ 11, 698 N.W.2d 512, 516-17 (internal citations omitted). SDCL 62-3-2 is devoid of express language that the respondeat superior, or “scope of employment” standard is to apply to the determination of whether one is an “employee” entitled to immunity under the statute. Had such a significant change been contemplated by the Legislature, surely it would have been specifically stated in the amended statute. To conclude otherwise would be to add omitted language to the statute in violation of our rule of statutory construction. Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994) (reiterating that the fundamental objective of statutory construction is to ascertain legislative intent from the language in the statute and that to add omitted language would be to add unlimited hazard to the inexact and uncertain business of searching for legislative intent). Therefore, we hold that under SDCL 62-3-2, the “arising from and in the course of employment” standard applies to determine both when an injured employee’s exclusive remedy is the receipt of workers’ compensation benefits and when a co-employee tortfeasor is entitled to immunity from liability.

b. Whether at the time of the injury to Ruhr, Wellnitz was an “employee” under SDCL 62-3-2 entitled to immunity from liability.

[¶ 15.] PR argues that notwithstanding the application of the less stringent workers’ compensation standard to assess Wellnitz’s actions, Wellnitz was not an “employee” of BHC at the time of Ruhr’s injury, as that term applies under SDCL 62-3-2, and therefore, could not invoke immunity under the statute.

[¶ 16.] In Fair v. Nash Finch Co., 2007 SD 16, 728 N.W.2d 623, we summarized the procedure for determining whether an injured employee is entitled to benefits under the workers’ compensation standard.

A claimant who wishes to recover under South Dakota’s Workers’ Compensation Laws must prove by a preponderance of the evidence that [s]he sustained an injury ‘arising out of and in the course of the employment. Both factors of the analysis, “arising out of employment” and “in the course of employment,” must be present in all claims for workers’ compensation. The interplay of these factors may allow the strength of one factor to make up for the deficiencies in strength of the other. These factors are construed liberally so that the application of the workers’ compensation statutes is not limited solely to the times when the employee is engaged in the work that he was hired to perform. Each of the factors is analyzed independently although they are part of the general inquiry of whether the injury or condition complained of is connected to the employment.

Id. ¶ 9 (internal citations omitted).

[¶ 17.] Wellnitz backed her vehicle into Ruhr while Ruhr walked to her vehicle, as she usually did, across the company parking lot adjacent to the BHC facility where she was employed. We have reviewed cases with comparable facts and have held that similar employee injuries arose out of and within the course of employment. See Fair, 2007 SD 16, ¶¶ 17-18, 728 N.W.2d at 631 (convenience store clerk fell while leaving the store in the usual manner after her shift following a reasonable period of time to shop for groceries); Steinberg v. S.D. Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 22, 607 N.W.2d 596, 603 (employee was injured from a fall on ice during her unpaid lunch hour while in the ordinary course of walking across a public street, between the situs of her employment and the employer provided parking lot where her car was located); Howell v. Cardinal Industries, Inc., 497 N.W.2d 709, 709 (S.D.1993) (after leaving employer-designated exit following the completion of her shift, employee was injured by falling on the ice in employer’s parking lot); see also Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶¶ 1-2, 556 N.W.2d 68, 69 (reversing summary judgment dismissing employee’s claim where employee was injured in a fall on the ice after exiting the workplace during an unpaid lunch). However, we assess whether Wellnitz’s act of backing up her vehicle arose out of and in the course of her employment within the context of Ruhr’s injury, which gave rise to the issue.

[¶ 18.] We address the first factor of the workers’ compensation standard by considering the following principles:

In order for an injury to “arise out of’ the employment, the employee must show that there is a causal connection between the injury and the employment. The employment need not be the direct or the proximate cause of the injury, rather it is sufficient if the accident had its origin in the hazard to which the employment exposed the employee while doing [her] work. The injury “arose out of’ the employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based.

Mudlin v. Hills Materials Co., 2005 SD 64, ¶ 11, 698 N.W.2d 67, 71-72 (internal citations omitted) (alteration in original).

[¶ 19.] In the instant case, Wellnitz, like Ruhr, was employed with BHC. Like Ruhr, the situs of Wellnitz’s employment was the BHC facility adjacent to the company parking lot. That Wellnitz was backing her vehicle out of her parking space to go home was a direct result of her having driven her vehicle to work earlier in the day and parking it in the company parking lot so that she could engage in her employment with BHC. Consequently, Wellnitz’s employment with BHC contributed to the injury she caused Ruhr when she backed the vehicle into her.

[¶ 20.] That Wellnitz’s act arose out of her employment is further evident by the fact that her activities at the time of the injury to Ruhr were within those which might reasonably be expected of BHC employees under the circumstances. Wellnitz like Ruhr had just ended a 10:30 p.m. shift and had just left the BHC facility through the usual exit. Both employees, as one might reasonably expect, had parked their vehicles in the company parking lot adjacent to the BHC facility. That Wellnitz would walk across the parking lot, get in her vehicle and back out of the parking spot to drive away could be reasonably foreseen under the circumstances. Welln-itz’s employment contributed to her activity that caused Ruhr’s injury and her activities immediately preceding and during the injury-causing accident were within those that one might expect a BHC employee to reasonably engage. We therefore conclude that Wellnitz’s injury causing activity arose out of her employment.

[¶ 21.] We have interpreted the second factor in the workers’ compensation analysis, “in the course of employment,” to refer to the time, place and circumstances of the injury. Mudlin, 2005 SD 64, ¶ 15, 698 N.W.2d at 73 (quoting Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979)). Moreover we recognized:

An employee is considered within his course of employment if he is doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of the employment.

Id. (citations omitted).

[¶ 22.] The injury causing accident occurred shortly after Wellnitz’s and Ruhr’s shifts ended at 10:30 p.m. The accident occurred in the company parking lot adjacent to the BHC facility where Wellnitz and Ruhr were employed. At the time of the accident both employees were in the process of leaving work to go home for the day. That Wellnitz was in the company parking lot backing her vehicle out of its parking spot at the time of the accident is both natural and incidental to her employment. Wellnitz was incidentally in the company parking lot because of her employment in the adjacent BHC facility and she naturally would get in her vehicle and back it out of her parking spot in order to go home at the end of her shift. Moreover, there is no suggestion that Wellnitz was acting without authorization when she parked in the company parking lot adjacent to the BHC facility, went to her vehicle at the end of her shift, and then began to back out of her parking spot in order to leave for home. We conclude that Welln-itz’s injury causing activity occurred in the course of her employment.

[¶ 23.] Having established that both elemental factors of the workers’ compensation standard were present in the context of Wellnitz’s injury-causing act, we hold that at the time of the accident she was an employee of BHC and within the immunity under SDCL 62-3-2.

[¶ 24.] Affirmed.

[¶ 25.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Relevant portions of California Labor Code §§ 3600 and 3601 remain intact.

      . PR suggests that our holding today amounts to an adoption of the “premise rule” whereby the workers' compensation standard is satisfied by an employee's mere presence on the employer’s premises prior to or after a work shift. This interpretation is too broad. Immunity under SDCL 62-3-2 necessarily ends where an intentional tort begins. Furthermore, we merely hold today that for purposes of satisfying the workers’ compensation standard, there is an inconsequential distinction between an employee who receives benefits for an injury occurring in the company parking lot while making her way home following the conclusion of a shift and the co-employee tortfeasor who caused the injury and is also on her way home, but only a few moments ahead of the injured employee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2008 SD 73
    STATE of South Dakota, Plaintiff and Appellee, v. James M. KRAMER, Defendant and Appellant.
    No. 24660.
    Supreme Court of South Dakota.
    Considered on Briefs March 26, 2008.
    Decided July 23, 2008.
    Lawrence E. Long, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Wally Eklund of Johnson, Eklund Law Office, Gregory, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] James Kramer was convicted of three separate hunting violations. In this appeal he challenges the revocation of his hunting privileges contending the revocation was for a longer period than authorized by law. We agree and reverse.

BACKGROUND

[¶ 2.] . On March 14, 2005, following a court trial before the Honorable Max Gors, Kramer was convicted of hunting with a revoked license, hunting big game on highway and public rights of way, and hunting on private land without consent. The convictions were ordered to be served consecutively and Kramer was sentenced to 160 days in the county jail. The circuit court also ordered Kramer’s hunting privileges revoked for a period of one year for each count to run consecutively, effectively revoking his hunting privileges for three years. No appeal was filed from this judgment of conviction.

[¶ 8.] On January 26, 2006, acting pursuant to a motion Kramer filed for a modification of his sentence, the circuit court (again Judge Gors) ordered that Kramer would receive credit for the time he had served and the remainder of the jail sentence would be suspended upon the condition that his hunting privileges would be revoked for life.

[¶ 4.] On May 24, 2007, Kramer filed a motion pursuant to SDCL 23A-31-1 (Rule 35) alleging that the January 26, 2006, order revoking his hunting privileges for life was an illegal sentence as it was in excess of the punishment authorized by the relevant statutory authority. Additionally, Kramer argued that a revocation could not exceed one year or be consecutive. This motion was filed with the Honorable Judge Lori Wilbur as the result of Judge Gors’ retirement from the bench.

[¶ 5.] The circuit court found that the original judgment of conviction which revoked Kramer’s hunting privileges for three years, based on the consecutive running of the one-year terms for each conviction, was permissible under SDCL 22-6-6.1. However, the court found that the lifetime revocation was unauthorized and constituted an illegal sentence. As a result, the court reinstated the original three year revocation consisting of the three consecutive one-year terms under the original judgment of conviction and the jail time remained suspended. An order to this effect was entered on September 28, 2007. Kramer appeals.

ANALYSIS

ISSUE ONE

[¶ 6.] Whether this Court has jurisdiction to act in this appeal.

[¶ 7.] The State argues that this Court is without jurisdiction to hear this appeal because Kramer failed to timely appeal from the original judgment of conviction. The State misapprehends the nature of a Rule 35 motion to correct an illegal sentence. SDCL 23A-31-1 (Rule 35) provides:

A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence. A court may reduce a sentence:
(1) Within two years after the sentence is imposed;
(2) Within one hundred twenty days after receipt by the court of a remitti-tur issued upon affirmance of the judgment or dismissal of the appeal; or
(3) Within one hundred twenty days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction;
whichever is later. A court may also reduce a sentence upon revocation of probation or suspension of sentence as provided by law. The remedies provided by this section are not a substitute for nor do they affect any remedies incident to post-conviction proceedings.

(Emphasis added). A defendant’s motion to correct an illegal sentence does not permit a challenge to the underlying conviction. See State v. Oscarson, 179 Vt. 442, 898 A.2d 123, 126 (2006); State v. Kerrigan, 143 Idaho 185, 141 P.3d 1054, 1056 (2006). Rather, “it is an attack on the sentence or the sentencing procedure.” Oscarson, 898 A.2d at 126. Kramer’s appeal in this matter relates only to the illegality of the sentence imposed and not to the underlying conviction. Therefore, his failure to timely appeal his conviction is not jurisdictionally fatal.

[¶ 8.] In State v. Tibbetts, 333 N.W.2d 440, 441 (S.D.1983), this Court specifically held that the circuit court’s denial of a request to correct an illegal sentence under SDCL 23A-31-1 was properly before this Court on appeal and rejected the State’s contention that the appeal was procedurally improper. Moreover, this Court has consistently reviewed such requests. See e.g., Application of Grosh, 415 N.W.2d 824 (S.D.1987); State v. Thomas, 499 N.W.2d 621 (S.D.1993); State v. Moon, 514 N.W.2d 705 (S.D.1994); State v. Sieler, 1996 SD 114, 554 N.W.2d 477. See also State v. Steen, 665 N.W.2d 688, 689-90 (N.D.2003)(holding a defendant has a right to appeal an order from a motion to correct an illegal sentence under Rule 35). Consequently, Kramer’s sentencing challenge is properly before the Court and we proceed to the merits.

ISSUE TWO

[¶ 9.] Whether the circuit court was authorized to revoke Kramer’s hunting privileges for three consecutive one-year terms.

[¶ 10.] Kramer was sentenced for the hunting violations pursuant to SDCL 41-6-74.1 and SDCL 41-9-8. Those statutes provide in relevant part:

41-6-74.1. Offenses causing one-year revocation of hunting, fishing, or trapping privileges.
At the time of conviction for any one of the following offenses:
(1) Violation of any game and fish law punishable as a Class 1 misdemeanor;
(2) Violation of § 41-8-37, 41-9-1.2, 41-8-17 except for a landowner, occupant, or accompanying guests of the landowner or occupant on the owner’s or occupant’s land or a person employed by the Department of Game, Fish and Parks in the performance of the person’s duty, or 41-12-12;
(3) Violation of any other statute or rule pertaining to fishing, hunting, or possessing game or game fish without a license or during a closed season; or
(4) Taking or possessing in excess of the lawful daily or possession limit:
(a) One or two paddlefish;
(b) Two or three turkeys;
(c) Four to six, inclusive, of any one game fish as regulated other than paddlefish;
(d) Four to six, inclusive, of any one small game animal as regulated;
the person’s applicable hunting, fishing, or trapping privileges in South Dakota are automatically revoked without fur ther hearing for a period of one year following date of conviction.

(Emphasis added).

41-9-8. Revocation of license on conviction-Retrieval of game excepted-Civil remedies of landowner unaffected.
Any person who knowingly enters or remains on private property for the purpose of hunting, fishing or trapping, in violation of § 41-9-1 or 41-9-2, shall lose hunting, trapping, or fishing privileges for one year following the conviction. If the person is the holder of a license to hunt, trap, or fish, the court shall require the license holder to surrender and deliver the license to the court to be returned to the Department of Game, Fish and Parks. For the purpose of this section, the term, guilty, has the same meaning as the term, conviction, in § 32-12-53.

(Emphasis added). Kramer argues that under the plain terms of these statutes his hunting privileges could only be suspended for one year following the date of his convictions and there was no authority for the circuit court to order the revocations to be served consecutive. We agree.

[¶ 11.] “Statutory interpretation is a question of law, reviewed de novo.” State v. Burdick, 2006 SD 23, ¶ 6, 712 N.W.2d 5, 7. “When the language of a statute is clear and unambiguous, our only function is to declare the meaning of the statute as clearly expressed.” Id. (citations omitted). Both of the above sentencing provisions indicate that loss of hunting privileges for a violation shall occur for a period of one year following the applicable conviction. There is no mention in the statutory framework concerning a circuit court’s authority to impose consecutive revocations of hunting privileges in the event of multiple convictions. Instead, the circuit court seized upon SDCL 22-6-6.1 to support consecutive revocations. That statute provides:

If a defendant is convicted of two or more offenses, regardless of when the offenses were committed or when the judgment or sentence is entered, the judgment or sentence may be that the imprisonment on any of the offenses or convictions may run concurrently or consecutively at the discretion of the court.

SDCL 22-6-6.1 (emphasis added). While this statute provides authority for the circuit court to order consecutive terms of imprisonment, which we note the court ordered here and is not disputed, it cannot be interpreted to support an order of consecutive revocations of hunting privileges. See State v. Flittie, 318 N.W.2d 346, 349 (S.D.1982); State v. Arguello, 1996 SD 57, ¶ 7, 548 N.W.2d 463, 464 (recognizing the purpose of SDCL 22-6-6.1 is to limit a court’s power to impose consecutive sentences to situations described in the statute). By its plain terms, SDCL 22-6-6.1 only authorizes consecutive sentences for terms of “imprisonment” and a revocation of hunting privileges does not constitute “imprisonment” under its plain and ordinary meaning. “This Court will not enlarge a statute beyond its face where the statutory terms are clear and unambiguous in meaning.” Arguello, 1996 SD 57, ¶ 7, 548 N.W.2d at 464.

[¶ 12.] “Illegal sentences are essentially only those which exceed the relevant statutory maximum limits or violate double jeopardy or are ambiguous or internally inconsistent.” Sieler, 1996 SD 114, ¶ 7, 554 N.W.2d at 480; see also State v. Schwebach, 2000 SD 50, 609 N.W.2d 130 (holding the circuit court exceeded the statutory authority in revoking defendant’s driving privileges for life when the maximum statutory period for revocation was two years). The portion of Kramer’s sentence that revoked his hunting privileges for three years based on consecutive One-year terms was unauthorized under the statutory framework. No matter what purpose or public benefit the circuit court considered in revoking Kramer’s hunting privileges for three years, the court cannot exceed the sentence authorized by law. Revocation of hunting privileges in this matter should have been for one year from the date of convictions as provided by SDCL 41-6-74.1 and SDCL 41-9-8.

[¶ 13.] Accordingly, we reverse the circuit court’s denial of the Rule 35 motion to correct an illegal sentence and remand with instructions for the court to modify the sentence consistent with this opinion.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.


author: /s/Eric J. Magnuson Chief Justice

text:
    Wallace J. LAWRENCE, Respondent, v. WILLMAN TRUCKING, INC., and SFM Insurance Company, Relators, and Minneapolis Clinic of Neurology, Healthpartners, Unity Hospital, and Orthopaedic Partners, P.A., Intervenors.
    No. A08-815.
    Supreme Court of Minnesota.
    Aug. 19, 2008.
    Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Minneapolis, MN, for respondent.
    Steven T. Scharfenberg, Lynn, Schar-fenberg & Associates, Minneapolis, MN, for relators.
   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 April 14, 2008, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[sjummary affirmances 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/Eric J. Magnuson Chief Justice

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


author: ANDERSON, G. BARRY, Justice.

text:
    Troels BOTLER, Relator, v. WAGNER GREENHOUSES and One Beacon Insurance Company, Respondents.
    No. A08-55.
    Supreme Court of Minnesota.
    Aug. 21, 2008.

      Donald W. Kohler, St. Paul, Minnesota, for Relator.
    James S. Pikala, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, Minnesota, for Respondents.
   OPINION

ANDERSON, G. BARRY, Justice.

We review on certiorari a decision of the Workers’ Compensation Court, of Appeals (WCCA) vacating a decision issued by a workers’ compensation judge for lack of jurisdiction. The workers’, compensation judge awarded employee Troels Botler costs and fees for the court appointment of a successor guardian and conservator but denied his claim for payment of the additional costs associated with the successor guardian’s and conservator’s services. Concluding that the compensation judge had jurisdiction to award the costs and fees for the appointment of the successor guardian and conservator and that the Workers’ Compensation Act does not provide for the additional relief sought, we reverse and reinstate the compensation judge’s decision.

On January 4, 2002, Troels Botler, an employee of Wagner Greenhouses, sustained serious injuries, including a closed-head injury, in a workplace accident. Wagner Greenhouses and its workers’ compensation liability insurer, One Beacon Insurance Company (collectively Wagner), admitted liability and paid benefits. On April 16, 2002, by district court order, Botler’s spouse was appointed general conservator. Botler has resided in a nursing home since 2004, and Wagner has paid the costs for the nursing home as a medical expense.

On December 12, 2005, Botler filed a claim petition, seeking additional workers’ compensation benefits, including permanent total disability benefits, as well as attorney fees and costs associated with his conservator. In September 2006, after Botler and his spouse divorced, Lutheran Social Services (LSS) was appointed successor general guardian and conservator by district court order. The LSS guardian provided services including monthly visits with Botler, working with nursing home personnel, attending quarterly care conferences, conferring with health care providers, making placement decisions, and taking responsibility for Botler’s personal items. As conservator, LSS was responsible for gathering and managing Botler’s assets.

By the time Botler’s claim was heard, the parties had settled claims related to additional compensation, and Wagner agreed to pay the costs and fees for the initial conservator appointment. The remaining issues identified by the workers’ compensation judge for resolution were: (1) whether Minn.Stat. § 176.092 (2006) requires the insurer or self-insured employer to pay the costs and fees for the appointment of successor guardians or conservators; and (2) whether the insurer or self-insured employer is obligated under the Workers’ Compensation Act to pay (a) “reasonable compensation to an individual or corporate fiduciary for providing guardianship or conservatorship services” and (b) “the costs of an annual accounting to Probate Court.”

The workers’ compensation judge concluded that the Workers’ Compensation Act requires an insurer or self-insured employer to pay the court costs and fees related to the appointment of successor guardians or conservators and ordered Wagner to pay the costs and attorney fees for the appointment of LSS. The compensation judge denied Botler’s claim for LSS’s additional charges, however, finding that the Act “does not set out that a workers’ compensation insurer or self-insured employer in Minnesota is responsible for paying the reasonable charges of guardians and conservators and the costs of preparing and filing the annual accounting required by Probate Court.”

Botler appealed the denial of his claim for additional guardian and conservator costs. The WCCA vacated the compensation judge’s findings and order and dismissed the appeal, concluding that “jurisdiction of the workers’ compensation courts does not extend to interpreting or applying Minn.Stat. § 524.5-501(c) [the probate statute dealing with appointment of guardians or conservators on referral under section 176.092]” and finding “nothing in the Workers’ Compensation Act authorizing the relief requested.” Botler v. Wagner Greenhouses, 67 Minn. Workers’ Comp. Dec. 450, 454-55 (WCCA 2007).

This case presents two issues for review: (1) whether the compensation judge had jurisdiction to award costs and fees for the court appointment of successor guardian and conservator LSS; and (2) when a guardian or conservator is mandated under the Act, whether the insurer or self-insured employer is responsible for the additional costs associated with guardian or conservator services. Both issues present questions of law, which we review de novo. See Roemhildt v. Gresser Cos., Inc., 729 N.W.2d 289, 292 (Minn.2007).

I.

Generally, the jurisdiction of the workers’ compensation courts is limited to construction and application of the Workers’ Compensation Act. See, e.g., Taft v. Advance United Expressways, 464 N.W.2d 725, 727 (Minn.1991) (holding that the WCCA did not have jurisdiction to interpret or apply statutes governing claims against insolvent insurance companies); Cooper v. Younkin, 339 N.W.2d 552, 554 (Minn.1983) (stating that the jurisdiction of the [WCCA] is limited to the construction and application of the Workers’ Compensation Act and holding that the WCCA did not have authority to create a remedy based on equitable principles). The courts’ jurisdiction “does not extend to interpreting or applying legislation designed specially for the handling of claims outside the workers’ compensation system.” Sundby v. City of St. Peter, 693 N.W.2d 206, 215 (Minn.2005). Workers’ compensation courts may, however, look to laws outside the system for instruction. Id. at 215-16 (concluding that the WCCA did not exceed its authority when it looked to federal law for instruction in the calculation of the workers’ compensation offset for social security disability benefits).

“An injured employee or a dependent ... who is a minor or an incapacitated person as that term is defined in section 524.5-102, subdivision 6, shall have a guardian or conservator to represent the interests of the employee or dependent in obtaining compensation according to the provisions of this chapter.” Minn.Stat. § 176.092, subd. 1. This provision applies to employees who receive or are entitled to receive permanent total disability benefits, supplementary benefits, or permanent partial disability benefits exceeding $3,000; dependents entitled to receive dependency benefits; and employees or dependents who receive or are offered a lump sum exceeding five times the statewide average weekly wage. Id.

If an injured employee or dependent does not have a guardian or conservator and his or her attorney knows or has reason to believe the employee or dependent is a minor or an incapacitated person, the attorney must seek a district court order appointing a guardian or conservator. Id., subd. 2. If the employer, insurer, or Special Compensation Fund (if applicable) knows or has reason to believe the employee or dependent is a minor or an incapacitated person, the employer, insurer, or Special Compensation Fund must notify the employee’s or dependent’s attorney. Id. If the employee or dependent has no attorney or the attorney fails to act, the employer or insurer must seek the appointment of a guardian or conservator and the Special Compensation Fund must notify the Commissioner of Labor and Industry or a compensation judge for referral of the matter to district court. Id., subds. 2-8.

When a workers’ compensation matter is referred to the district court under Minn. Stat. § 176.092, subd. 3, the court determines the status of an employee or dependent as a minor or an incapacitated person, appoints a guardian or conservator if required, and returns the “matter to the source of referral.” MinmStat. § 524.5-501(a) (2006). “Subject to the approval of the court, the insurer or self-insured employer shall pay the costs and guardian, conservator, and attorney fees of the employee or dependent associated with the appointment of a guardian or conservator and as required under section 176.092.” MinmStat. § 524.5-501(c) (2006).

Wagner initially denied responsibility for costs related to the court appointment of a successor guardian or conservator. The compensation judge analyzed Minn. Stat. §§ 176.092 and 524.5-501(c) together and concluded that an insurer or self-insured employer is responsible for the costs for the appointment of successor guardians or conservators. The compensation judge reasoned that the statutory mandate for the appointment of a guardian or conservator informed this conclusion. Accordingly, the compensation judge ordered Wagner to pay the $252 filing fee and $592 fee for legal services for the appointment of LSS.

The WCCA apparently concluded that the jurisdiction of the workers’ compensation courts does not extend to making such awards. Botler concedes that the workers’ compensation courts do not have jurisdiction to determine the reasonableness of the costs and fees for the appointment of a guardian or conservator. In reliance on Freeman v. Armour Food Co., 380 N.W.2d 816 (Minn.1986), however, he argues that the workers’ compensation courts do have the authority to determine that an insurer or self-insured employer is responsible for those costs. Wagner agrees.

In Freeman, the WCCA had jurisdiction over a workers’ compensation award and, incident to that jurisdiction, we said that the WCCA could order a no-fault auto carrier to be reimbursed out of that award:

Here reimbursement has already been granted by the legislature. The fact that the right of reimbursement appears in Chapter 65B rather than Chapter 176 makes it no less a remedy which the WCCA should recognize. Of course, the WCCA has “no jurisdiction in any case that does not arise under the workers’ compensation laws.” Minn.Stat. § 175A.01, subd. 2. See also Hagen v. Venem, 366 N.W.2d 280, 283 (Minn.1985) (the WCCA is limited to “the construction and application of the Workers’ Compensation Act”). This means that the WCCA lacks jurisdiction to determine a no-fault carrier’s liability to pay no-fault benefits, but this need not conflict with the WCCA’s jurisdiction to decide workers’ compensation liability.

Id. at 820. We noted policy reasons for having the WCCA award reimbursement, including avoiding multiple litigation and involvement of another forum to enforce the remedy. Id. at 820 n. 5.

Here, an argument can be made that the compensation judge engaged in impermissible interpretation and application of the Probate Code in concluding that Wagner was responsible for the costs and fees in this case and then making the award. On the other hand, the Probate Code does provide that the insurer or self-insured employer “shall pay” those costs and fees “as required under section 176.092”:

Subject to the approval of the court, the insurer or self-insured employer shall pay the costs and guardian, conservator, and attorney fees of the employee or dependent associated with the appointment of a guardian or conservator and as required under section 176.092.

Minn.Stat. § 524.5-501(c). By analogy to Freeman, we agree that the obligation for payment is a requirement that the Act recognizes in a proceeding on an employee’s claim petition when the appointment of a guardian or conservator is mandated under section 176.092 and, as in this case, the amount and reasonableness of the costs and fees for the appointment are not in dispute. We therefore conclude that the compensation judge had jurisdiction to award costs and fees for the court appointment of LSS as guardian and conservator.

II.

The next issue is whether the Act obligates the insurer or self-insured employer to pay “reasonable compensation to an individual or corporate fiduciary for providing guardianship or conservatorship services” and “the costs of an annual accounting to Probate Court” when a guardian or conservator is required under Minn. Stat. § 176.092. In considering Botler’s claim, the compensation judge surveyed the Act, noting that it does not expressly obligate the insurer or self-insured employer to pay the ongoing guardian or conservator costs. The compensation judge also listened to the tapes of the subcommittee and full committee hearings on proposed legislation that led to the enactment of Minn.Stat. § 176.092 and companion provision Minn.Stat. § 524.5-501 (originally codified at Minn.Stat. § 525.6199 (Supp.1993); see Act of May 14, 1993, ch. 194, §§ 4, 9, 1993 Minn. Laws 786, 787-88, 790). The compensation judge noted that the focus of concern at the hearings was to ensure “that guardians and conservators would be available to enter into lump sum settlements for minors and legally incompetent adults after work injuries” and that there was no discussion about who would be responsible for the ongoing guardian or conservator costs. The compensation judge then looked to the Probate Code for instruction in construing the Workers’ Compensation Act. In denying Botler’s claim, the compensation judge explained that the Act contains no authority for an award of ongoing guardian or conservator costs.

Minnesota Statutes § 176.092, subd. 1, provides that an injured employee or dependent who is a minor or an incapacitated person “shall have a guardian or conservator to represent the interests of the employee or dependent in obtaining compensation according to the provisions of this chapter.” The guardian’s or conservator’s duties include, but are not limited to: “(1) representing the interests of the employee or dependent in obtaining compensation according to the provisions of this chapter; (2) receiving monetary compensation benefits, including the amount of any award, settlement, or judgment; and (3) acting as a fiduciary in distributing, managing, and investing monetary workers’ compensation benefits.” Id., subd. 4. Pursuant to Minn. Stat. § 524.5-501(c), the insurer or self-insured employer “shall pay” the costs and fees “associated with the appointment of a guardian or conservator and as required under section 176.092.”

“Workers’ compensation ... is social legislation, providing a measure of security to workers injured on the job, with the burden of that expense considered a proportionate part of the expense of production.” Franke v. Fabcon, Inc., 509 N.W.2d 373, 376 (Minn.1993). Botler argues that in keeping with the underlying aim of the Act, the ongoing costs of a statutorily mandated guardian or conservator should be the responsibility of the insurer or self-insured employer. Certainly, Botler has sustained damages by reason of his incapacity as a result of his work injury. “Workers’ compensation, however, is a statutory scheme estranged from common law liability and damages, and it affords benefits only pursuant to specific statutory provisions.” Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 38 (Minn.1992). As the compensation judge concluded, the Act does not provide for the payment of the costs associated with the ongoing services of a guardian or conservator, including an annual accounting. “When a question of statutory construction involves a failure of expression rather than an ambiguity of expression, courts are not free to substitute amendment for construction and thereby supply the omissions of the legislature.” Genin v.1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn.2001) (internal quotation marks omitted). Even accepting for the sake of argument, a proposition we do not reach here, that the Act contemplates that the insurer or self-insured employer is responsible for guardian or conservator costs and fees beyond those related to court appointment, Botler has never identified with any precision the additional costs and fees “associated with the appointment of [LSS] and as required under section 176.092.” Minn.Stat. § 524.5-501(c) (emphasis added).

In summary, we hold that the compensation judge had jurisdiction to award costs and fees for the court appointment of LSS but that the Act does not provide for the additional relief sought by the employee. We therefore reverse the decision of the WCCA and reinstate the compensation judge’s findings and order. Because our disposition reinstates the award of costs and fees for the court appointment of LSS, we allow attorney fees to the employee. Minn.Stat. § 176.511, subd. 5 (2006) (“Where upon a review by the Supreme Court upon certiorari, an award of compensation is affirmed, or modified and affirmed, or an order disallowing compensation is reversed, the court may allow a reasonable attorney’s fee incident to the review.”).

Reversed and reinstated.

Employee is awarded $1,600 in attorney fees.

MAGNUSON, C. J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . The compensation judge cited Minn.Stat. § 525.6199 (2002), which was repealed in 2003 and replaced with Minn.Stat. § 524.5-501(c) (2006). See Act. Of Apr. 11, 2003, ch. 12, art. 1, § 72, art. 2, § 8, 2003 Minn. Laws 116, 164, 170. Section 524.5-501(c) (2006) is nearly identical to section 525.6199. (2002), and we cite to the current statute throughout this opinion.


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

text:
    STATE of Minnesota, Respondent, v. Pedro Maldono RODRIGUEZ, Jr., Appellant.
    No. A06-974.
    Supreme Court of Minnesota.
    Aug. 21, 2008.

      Lori Swanson, Attorney General, St. Paul, MN, Scott A. Buhler, Assistant Polk County Attorney, Crookston, MN, for respondent.
    Lawrence Hammerling, Chief State Appellate Public Defender, Davi Elstan Forte Axelson, Assistant State Public Defender, St. Paul, MN, for appellant.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Pedro Maldono Rodriguez, Jr., pleaded guilty to a number of drug-related offenses, including conspiracy to commit controlled substance crime. On appeal, appellant asks us to reverse his sentence and remand for resentencing on the grounds that the district court erred in concluding that the Confrontation Clause and Minnesota Rules of Evidence do not apply in jury sentencing trials, that the district court declined to provide the sentencing jury an accomplice corroboration instruction, and that the district court’s upward sentencing departure on the basis of appellant’s possession of a handgun was invalid. We affirm appellant’s sentence.

On March 4, 2004, the Crookston Police Department learned from the Drug Task Force that appellant and A.W., appellant’s stepdaughter, were traveling from Texas to Crookston in a Ford Explorer with a large amount of cocaine and a handgun. In the early morning hours of March 5, a Crookston police officer observed the vehicle entering Crookston from the south on Highway 75 and followed the vehicle to Glen McGee’s residence on the south side of town. The officer observed McGee léave the vehicle carrying a small duffel bag with a jacket draped over it. After dropping McGee off at his residence, appellant and A.W. were pulled over on West Sixth Street in Crookston. A drug detection dog alerted to the presence or close association of controlled substances in the interior and exterior of the vehicle, and appellant was arrested.

Polk County Deputy Sheriff Randy Son-drol bypassed the traffic stop and met Deputy Brad Johnson near McGee’s residence. Sondrol and Johnson spoke with McGee, who éxplained that he had traveled to Texas with appellant and A.W. When the officers told McGee that they had information that he had transported cocaine from Texas, McGee retrieved a bag containing 60 smaller baggies of cocaine from his bedroom closet. (Sondrol later submitted the cocaine to the Minnesota Bureau of Criminal Apprehension Laboratory, which detected 88.6 grams of cocaine in the 15 baggies it analyzed.) McGee also showed the officers where a .45 semi-automatic handgun, ammunition, and empty magazines were hidden in his bedroom, and the officers found a Hershey’s syrup jug, which had been glued shut and cut below the spout, in McGee’s kitchen.

After being advised of and waiving his rights, McGee admitted to the officers that he, appellant, and A.W. had traveled to Big Wells, Texas, with the intention of purchasing drugs for resale. McGee explained that he gave appellant $12,000 to purchase the drugs when they were in Texas and that appellant returned about 9 hours later with the sealed Hershey’s jug containing cocaine. McGee said that although A.W. accompanied him and appellant on the trip, he did not think that A.W. knew about the cocaine. McGee also stated that the handgun belonged to appellant and that he had been to Texas with appellant on two prior occasions. McGee indicated that appellant made arrangements to purchase 30 pounds of marijuana on their first trip to Texas. McGee was arrested following his interview with the police.

Following their interview with McGee on the morning of March 5, Sondrol and Johnson interviewed appellant. After being advised of and waiving his rights, appellant admitted that he and McGee had returned from buying cocaine in Big Wells, Texas. He explained that he bought about 16 ounces of cocaine from some friends in Texas with McGee’s money and that McGee was going to sell the drugs and share the profit with him. Appellant said that his 17-year-old stepdaughter, A.W., had accompanied them on the trip and that he brought the gun back from Texas because McGee said he would buy it with some of the proceeds from the sale of the cocaine. According to appellant, he and McGee traveled to Texas to pick up drugs on one prior occasion. Finally, appellant admitted that he had probably given cocaine to minors at parties and that he had given cocaine to A.W. “[o]nce in a while.” Appellant and his wife consented to a search of their residence, and the officers recovered marijuana paraphernalia and ammunition.

On July 6, 2004, appellant pleaded guilty to four counts of controlled substance crime, one count of failing to affix a tax stamp, and one count of being a felon in possession of a firearm. Count I, the relevant crime in this appeal, was conspiracy to commit controlled substance crime in violation of Minn.Stat. § 152.096, subd. 1 (2006), Minn.Stat. § 152.021, subds. 1(1), 2(1), 3(b) (2002), Minn.Stat. § 152.0261, subds. 1, 3 (2006), and Minn.Stat. § 609.11, subd. 5a (2006). On August 23, 2004, the Polk County District Court sentenced appellant to 278 months imprisonment for the conspiracy conviction, reflecting an upward departure based on the court’s findings that the offense was a major controlled substance offense, that there were three or more active participants, and that a juvenile was present during the commission of the offense; 158 months imprisonment for first-degree possession of a controlled substance with intent to sell, to be served concurrently with the conspiracy sentence; and 60 months imprisonment for being a felon in possession of a firearm, to be served consecutively to the conspiracy sentence.

On appeal, the court of appeals concluded that appellant’s Sixth Amendment rights were violated “[bjecause the district court imposed a sentence that is an upward durational departure from the presumptive sentence based solely on judicially found facts.” State v. Rodriguez, No. A04-2192, 2005 WL 1669493, at *1 (Minn.App. July 19, 2005), rev. denied (Minn. Sept. 28, 2005). The court of appeals reversed and remanded for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Id.

On remand, a jury sentencing trial was held to determine the existence of aggravating factors supporting an upward sentencing departure. At the State’s request, the district court ruled that the Sixth Amendment right of confrontation and the Minnesota Rules of Evidence do not apply in jury sentencing trials and that McGee’s statements to the police were admissible. Deputy Sondrol was the sole witness, and the sentencing jury was informed of the six counts to which appellant pleaded guilty. Appellant objected to the admission of his own recorded police statement as irrelevant; McGee’s first recorded police statement on foundation, hearsay, and relevance grounds; and McGee’s second recorded police statement on hearsay, relevance, and confrontation grounds. The district court overruled appellant’s objections, and the recordings were received into evidence. Finally, the district court denied appellant’s request that it give the sentencing jury an accomplice corroboration instruction.

The sentencing jury found four aggravating factors for appellant’s conspiracy to commit controlled substance crime conviction. The first aggravating factor found by the sentencing jury was that appellant’s conspiracy was a major controlled substance offense, which was supported by the following findings: the offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; appellant knowingly possessed a firearm during the commission of the offense; and the offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement. The other aggravating factors found by the sentencing jury were that appellant sold cocaine to juveniles during the course of the offense, that the offense was committed as part of a group of three or more persons who all actively participated in the crime, and that appellant was the parent, legal guardian, or caretaker of a juvenile who was present during the commission of the offense. The district court adopted the sentencing jury’s findings and reinstated the sentence it had previously imposed.

Appellant appealed the district court’s judgment. The court of appeals affirmed, concluding that (1) the admission of hearsay evidence was harmless in light of appellant’s statement to the police and admissions at his guilty plea hearing, (2) the Confrontation Clauses of the United States and Minnesota Constitutions do not apply in jury sentencing trials, (3) the Minnesota Rules of Evidence do not apply in jury sentencing trials, (4) any error in failing to give the sentencing jury an accomplice corroboration instruction was harmless, and (5) the imposition of consecutive sentences did not violate appellant’s Sixth Amendment jury-trial right. State v. Rodriguez, 738 N.W.2d 422, 428, 431-33 (Minn.App.2007). We granted appellant’s petition for review.

I.

The first issue presented in this case is whether the right of confrontation guaranteed by the Sixth Amendment applies in jury sentencing trials. Appellant contends that his rights under the Confrontation Clause were violated by the admission at his jury sentencing trial of McGee’s recorded police statements. Whether a defendant’s confrontation rights have been violated “is a question of law that we review de novo.” State v. Warsame, 735 N.W.2d 684, 689 (Minn.2007).

The Sixth Amendment of the United States Constitution provides as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const. amend. VI. The Confrontation Clause of the Sixth Amendment guarantees a defendant “the right ... to be confronted with the witnesses against him.” Id.

A.

Our Confrontation Clause analysis is guided by the United States Supreme Court’s recognition of the fundamental and historical importance of the right to trial by jury and the right of cross-examination in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, these cases establish not only that the facts on which certain sentence enhancements are based must be found by a jury, but also that the right of cross-examination guaranteed by the Confrontation Clause is a core component of the right to a jury trial.

The defendant in Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. 530 U.S. at 469-70, 120 S.Ct. 2348. Pursuant to a New Jersey statute allowing a trial court to sentence a defendant “to an extended term of imprisonment” where the trial court finds that the crime was committed for the purpose of intimidation on the basis “of race, color, gender, handicap, religion, sexual orientation or ethnicity,” N.J. Stat. Ann. § 2C:44-3(e) (West 2000), the trial court made the requisite finding and enhanced the defendant’s sentence. 530 U.S. at 468-71, 120 S.Ct. 2348.

The Supreme Court reversed the defendant’s sentence and struck down the New Jersey statute as unconstitutional, concluding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490-92, 497, 120 S.Ct. 2348. Noting that “the historical foundation for our recognition of these principles extends down centuries into the common law,” the Court explained that “trial by jury has been understood to require that ‘the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours.’” Id. at 477, 120 S.Ct. 2348 (quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)). The Court observed that the trial-by-jury requirement “ ‘guard[s] against a spirit of oppression and tyranny on the part of rulers’ ” and serves “ ‘as the great bulwark of [our] civil and political liberties.’ ” Id. (quoting 2 J. Story, Commentaries on the Constitution of the United States 540-41 (4th ed. 1873)). (first alteration added).

The Supreme Court applied the Apprendi rule in Blakely v. Washington, in which the defendant had pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm. 542 U.S. at 298-99, 124 S.Ct. 2531. The trial court departed upward from the presumptive sentence pursuant to a Washington statute providing that “[t]he court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence,” Wash.Rev.Code § 9.94A.120(2) (2000). 542 U.S. at 299-301, 124 S.Ct. 2531. The trial court found that the defendant had acted with “deliberate cruelty,” a statutorily delineated “aggravating circumstance” in domestic violence cases, Wash.Rev.Code § 9.94A.390(2)(h)(iii) (2000). 542 U.S. at 300, 124 S.Ct. 2531.

The Supreme Court reversed the defendant’s sentence, noting that the facts supporting the trial court’s finding of deliberate cruelty “were neither admitted by [the defendant] nor found by a jury.” Id. at 303, 305, 124 S.Ct. 2531. The Court applied the rule it had announced in Apprendi that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Id. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). The Court described the historical bases of the Apprendi rule as follows:

This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common, law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872).

542 U.S. at 301-02, 124 S.Ct. 2531.

Prior to the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the admissibility of a statement by an unavailable hearsay declarant satisfied the Confrontation Clause if the statement bore “adequate ‘indicia of reliability,’ ” and an out-of-court statement was deemed sufficiently reliable if it fell “within a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.”- Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct, 2531, 65 L.Ed.2d 597 (1980). The Court in Crawford rejected the reliability standard and disentangled the right of confrontation from the hearsay rules, explaining that “[w]here testimonial statements are involved, we do hot think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” 541 U.S. at 61, 124 S.Ct. 1354. According to the Court, the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. As in Apprendi and Blakely, the Court turned to the historical understanding of the Sixth Amendment, quoting Blackstone’s observation that the “ ‘open examination of witnesses ... is much more conducive to the clearing up of truth.’ ” Id. at 61-62, 124 S.Ct. 1354 (quoting 3 Blackstone, Commentaries on the Laws of England 373 (1768)).

Accordingly, the Supreme Court held that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54, 124 S.Ct. 1354. The Court explained that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused,” and stated that “[t]he Sixth Amendment must be interpreted with this focus in mind.” Id. at 50, 124 S.Ct. 1354.

In Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (quoting 4 Blackstone, Commentaries, at 343), and Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting 4 Blackstone, Commentaries, at 343), the Supreme Court emphasized the right to have a jury find “ ‘the truth of every accusation’ ” beyond a reasonable doubt. This trial-by-jury requirement, the Court explained in Apprendi, is “ ‘the great bulwark of [our] civil and political liberties.’ ” 530 U.S. at 477, 120 S.Ct. 2348 (quoting 2 Story, Commentaries, at 54(M1). Furthermore, the Court emphasized in Crawford that the Confrontation Clause requires that the reliability of testimonial statements be assessed “by testing in the crucible of cross-examination.” 541 U.S. at 61, 124 S.Ct. 1354. The admission at a jury sentencing trial of testimonial statements of a witness who did not testify and who has not previously been subject to cross-examination surely constitutes the “use of ex paHe examinations as evidence against the accused,” which is “the principal evil at which the Confrontation Clause was directed.” Id. at 50, 124 S.Ct. 1354. Because cross-examination is a core component of a defendant’s right to a jury trial, we hold that the right of confrontation guaranteed by the Sixth Amendment applies in jury sentencing trials.

Our interpretation of Apprendi, Blakely, and Crawford is supported by our own case law and rules of criminal procedure. In State v. Adams, we stated that due process guarantees a defendant the right of confrontation in certain sentencing proceedings:

It is well recognized that a trial judge is not bound by the same rules of evidence in sentencing as in the trial in which a defendant is convicted. However, due process guarantees the defendant notice, an opportunity to be heard, confrontation and cross-examination of witnesses in extended sentence hearings.

295 N.W.2d 527, 535 (Minn.1980) (internal citations omitted). We recognize that Adams involved a due process challenge rather than a confrontation challenge and that the sentencing proceeding in Adams was conducted pursuant to a statute that has since been repealed. See id. at 535-36. But Adams is instructive insofar as it demonstrates that even before Apprendi, Blakely, and Crawford altered the sentencing and Confrontation Clause landscapes, we were sensitive to the confrontation rights of defendants at sentencing.

Furthermore, we held in State v. Dettman “that a defendant must expressly, knowingly, voluntarily, and intelligently waive his right to a jury determination of facts supporting an upward sentencing departure before his statements at his guilty-plea hearing may be used to enhance his sentence.” 719 N.W.2d 644, 650-51 (Minn.2006). Noting “that a defendant’s waiver of his right to a jury trial on the elements of an offense must be knowing, intelligent, and voluntary,” we concluded that there is “no principled basis for differentiating between a waiver of the right to a jury trial on the elements of an offense and a waiver of the right to a jury determination of aggravating sentencing factors.” Id. at 651. “Both rights,” we observed, “arise from the same Sixth Amendment guarantee.” Id. The rationale behind our holding in Dettman supports our conclusion that the right of confrontation applies in jury sentencing trials — if the Sixth Amendment right to a jury trial applies in jury sentencing trials, then the right of cross-examination, which is a core component of the jury trial right, applies in jury sentencing trials.

The relationship between the right to a jury trial and the right of confrontation is also reflected in Minn. R.Crim. P. 15.01, subd. 2, which provides as follows:

Before the court accepts an admission of facts in support of an aggravated sentence, the defendant shall be sworn and questioned by the court with the assistance of counsel ... as to the following:
7. a. Whether the defendant has been told by defense counsel and understands that if the defendant wishes to deny the facts alleged in support of an aggravated sentence and have a trial by a jury or a judge, the prosecutor will be required to have the prosecution witnesses testily in open court in the defendant’s presence, and that the defendant will have the right, through defense counsel, to question these witnesses.
b. Whether the defendant waives the right to have these witnesses testify in the defendant’s presence and be questioned by defense counsel.

In the absence of a right of confrontation in jury sentencing trials, there would be no reason for Minn. R.Crim. P. 15.01, subd. 2, to require that a defendant waive “the right ” to question the witnesses and “the right to have these witnesses testify in the defendant’s presence and be questioned by defense counsel.” Id. (emphasis added). Despite the fact that the current version of Minn. R.Crim. P. 15.01, subd. 2, was not in effect when the sentencing jury found appellant guilty of the four aggravating factors, the rule informs our conclusion that the Sixth Amendment right of confrontation applies in jury sentencing trials.

B.

Having held that the right of confrontation guaranteed by the Sixth Amendment applies in jury sentencing trials, we must next determine whether appellant’s confrontation rights were violated by the admission at his jury sentencing trial of McGee’s recorded police statements. Under Crawford, the Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354.

The Supreme Court stated in Crawford that “[statements taken by police officers in the course of interrogations are ... testimonial under even a narrow standard.” Id. at 52, 124 S.Ct. 1354. The Court expounded on its definition of “testimonial” in Davis v. Washington, explaining that “[statements ... made in the course of police interrogation ... are testimonial when the circumstances objectively indicate that there is no ... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). McGee’s statements to the police on March 5, 2004, and May 10, 2004, are clearly “testimonial” under this standard. Additionally, McGee did not testify at appellant’s jury sentencing trial (despite his availability), and appellant had no prior opportunity to cross-examine him. Therefore, we hold that the admission at appellant’s jury sentencing trial of McGee’s recorded police statements violated appellant’s confrontation rights under the Sixth Amendment.

C.

Our holding that appellant’s confrontation rights under the Sixth Amendment were violated by the admission of McGee’s recorded police statements does not end our inquiry, for such violations “are subject to harmless error analysis.” State v. Ferguson, 742 N.W.2d 651, 656-57 (Minn.2007). We have stated that for a Confrontation Clause “violation to be deemed harmless, it must be harmless beyond a reasonable doubt.” State v. Courtney, 696 N.W.2d 73, 79 (Minn.2005). “An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered was ‘surely unattributable’ to the error.” Id. at 80 (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). Therefore, if the sentencing jury’s findings of the aggravating factors in this case were surely unattributable to the admission of McGee’s statements, then the district court’s error in admitting the statements was harmless and appellant’s sentence is not reversible on Confrontation Clause grounds.

The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating factors justifying upward sentencing departures. Minn. Sent. Guidelines II.D.2. The first aggravating factor found by the sentencing jury was that appellant’s conspiracy was a “major controlled substance offense,” which is defined “as an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense.” Minn. Sent. Guidelines II.D.2.b(5). The presence of two or more of seven delineated aggravating circumstances renders an offense a major controlled substance offense. Id. The sentencing jury found that appellant’s conspiracy to commit controlled substance crime constituted a major controlled substance offense based on the presence of the following aggravating circumstances: the offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; appellant knowingly possessed a firearm during the commission of the offense; and the offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement. Appellant admitted in his statement to the police that he purchased approximately 16 ounces of cocaine for McGee to sell, and the jury could infer from Deputy Sondrol’s testimony regarding typical drug users that this quantity is substantially larger than for ordinary personal use. Furthermore, appellant admitted at his guilty plea hearing that the conspiracy was committed from on or about January 2003 to on or about March 2004, which is a lengthy period of time, and that he imported the cocaine into Minnesota from Texas, which is a broad geographic area of disbursement. Accordingly, the sentencing jury’s finding that appellant’s conspiracy to commit controlled substance crime constituted a major controlled substance offense was surely unattributable to the admission of McGee’s statements at appellant’s jury sentencing trial.

The sentencing jury’s findings of the other aggravating factors were also surely unattributable to the admission of McGee’s statements. The second aggravating factor found by the sentencing jury was that appellant sold cocaine to juveniles during the course of the conspiracy. Appellant admitted in his statement to the police that he had “probably” given cocaine to minors and that he had given drugs to A.W. “[o]nce in a while,” and McGee did not provide the police any information regarding appellant’s provision of cocaine to juveniles. The third aggravating factor found by the sentencing jury was that the conspiracy was committed as part of a group of three or more persons who all actively participated in the crime, and appellant disclosed at his guilty plea hearing and in his police statement that McGee and the seller of the cocaine in Texas were involved in the crime. Finally, the sentencing jury found that appellant was the parent, legal guardian, or caretaker of a juvenile who was present during the commission of the conspiracy, and appellant admitted in his statement to the police that A.W., his 17-year-old stepdaughter, accompanied appellant and McGee on their trip to Texas.

The sentencing jury’s findings of the four aggravating factors in this case were surely unattributable to the admission of McGee’s recorded police statements, which were largely cumulative to appellant’s admissions in his police interview and at his guilty plea hearing. Therefore, the admission of McGee’s statements in violation of appellant’s right of confrontation guaranteed by the Sixth Amendment was harmless beyond a reasonable doubt.

II.

Having concluded that the Confrontation Clause applies in jury sentencing trials, we next consider whether the Minnesota Rules of Evidence apply in jury sentencing trials. Appellant objected at his jury sentencing trial to the admission of McGee’s first recorded police statement on foundation, hearsay, and relevance grounds and to the admission of McGee’s second recorded police statement on hearsay and relevance grounds. Appellant argues that the district court erred in refusing to apply the rules of evidence at his jury sentencing trial.

Minnesota Rule of Evidence 1101(a) provides that “[ejxcept as otherwise provided” in Minn. R. Evid. 1101(b), the rules of evidence “apply to all actions and proceedings in the courts of this state.” Although Minn. R. Evid. 1101(b)(3) states that the rules of evidence do not apply in “[p]roceedings for ... sentencing,” it makes no reference to jury sentencing trials. Under the plain language of Minn. R. Evid. 1101(a), the rules of evidence apply in jury sentencing trials, which are not listed as an exception in Minn. R. Evid. 1101(b). We, therefore, hold that the Minnesota Rules of Evidence apply in jury sentencing trials and that the district court erred in ruling to the contrary.

The “[e]rroneous admission of evidence that does not have constitutional implications is harmless if there is no ‘reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.’ ” State v. Robinson, 718 N.W.2d 400, 407 (Minn.2006) (quoting State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994)). For the same reasons we deem the Confrontation Clause violation harmless, we also conclude that there is no reasonable possibility that McGee’s statements significantly affected the sentencing jury’s findings of the four aggravating factors in this case. We hold, therefore, that any error on the part of the district court in admitting McGee’s recorded police statements in contravention of the Minnesota Rules of Evidence was harmless.

III.

Appellant also argues that his due process rights were violated when the district court declined to give the sentencing jury an accomplice corroboration instruction at his jury sentencing trial. Under MinmStat. § 634.04 (2006), “[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.” Because an accomplice’s credibility is inherently untrustworthy, “[a]n accomplice instruction ‘must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.’ ” State v. Lee, 683 N.W.2d 309, 316 (Minn.2004) (quoting State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989)).

The accomplice corroboration requirement, MinmStat. § 634.04, is a statutory protection created by the legislature, and we cannot disregard the unambiguous language of a statute “under the pretext of pursuing [its] spirit,” Minn.Stat. § 645.16 (2006). “Conviction” is defined as “[t]he act or process of judicially finding someone guilty of a crime” and “[t]he judgment (as by a jury verdict) that a person is guilty of a crime.” Black’s Law Dictionary 358 (8th ed.2004). Minnesota Statutes § 634.04 and the corresponding accomplice corroboration instruction requirement do not apply in a jury sentencing trial, which occurs after a defendant has been convicted. We recognize that the principles underlying Minn.Stat. § 634.04 are applicable to a sentencing jury’s findings of aggravating factors, but it is the prerogative of the legislature, not this court, to extend the statute accordingly. We hold that the accomplice corroboration instruction requirement does not apply in jury sentencing trials and that the district court thus did not err in denying appellant’s request for an accomplice corroboration instruction.

IV.

The final issue before us is whether the district court erred in relying, in part, on appellant’s possession of the handgun to support its upward sentencing departure. We review a district court’s departure from the presumptive sentence under the Minnesota Sentencing Guidelines for an abuse of discretion. State v. Losh, 721 N.W.2d 886, 895 (Minn.2006).

“We have ... held that conduct underlying one conviction for which a defendant was sentenced cannot be used to support an upward sentencing departure for a separate conviction.” State v. Osborne, 715 N.W.2d 436, 446 (Minn.2006) (citing State v. McIntosh, 641 N.W.2d 3, 9 (Minn.2002)). The district court indicated that it relied, in part, on appellant’s possession of the handgun for its upward sentencing departure, explaining that it “believe[d] that [appellant’s] provision (or sale) of cocaine to juveniles, including his own 17-year-old step-daughter, and his importation of approximately 13 ounces of cocaine into Minnesota with a possibly stolen semiautomatic pistol, while his step-daughter was present, justifie[d] the double upward durational departure imposed.” (Emphasis added.) Because appellant’s possession of the handgun constituted conduct underlying his felon in possession conviction, the district court erred in relying on appellant’s possession of the handgun to support the upward sentencing departure for his conspiracy to commit controlled substance crime offense.

“If the reasons given [for departure] are improper or inadequate, but there is sufficient evidence in the record to justify the departure, the departure will be affirmed.” Losh, 721 N.W.2d at 896 (quoting McIntosh, 641 N.W.2d at 8); see also State v. Thompson, 720 N.W.2d 820, 829-31 (Minn.2006). The sentencing jury’s findings that appellant’s conspiracy involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use and that it involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement support the finding of the major controlled substance offense aggravating factor under Minn. Sent. Guidelines II.D.2.b(5). Because the record contains sufficient evidence to justify the departure, we affirm appellant’s sentence.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, PAUL H., Justice

(concurring).

I join the majority opinion with one exception. I would remand for resentenc-ing in light of our opinion rather than simply affirm on the ground that the record contains sufficient evidence to justify the district court’s significant upward sentencing departure.

The appellant, Pedro Maldono Rodriguez, Jr., has committed some very bad acts and made some unwise choices for which the district court has sentenced him to serve 338 months (28.17 years) in prison. This sentence is a significant upward departure from what the sentencing guidelines require. We have now held that the sentencing fact-finding jury properly found that there were aggravating factors that support an upward departure in Rodriguez’s sentence. But, we have also concluded that there were errors, albeit harmless errors, that were part of the process used in reaching this result. It is possible that upon remand the district court may still impose the same sentence notwithstanding these errors, and I conclude that if it did so such a sentence would be legal under our decision. Nevertheless, I am not convinced that upon remand, the district court would reimpose the same sentence or should do so. Therefore, in light of the district court’s substantial upward departure and the errors that occurred during sentencing, I would remand for re-sentencing in light of our holding, rather than affirm the court’s sentence.

PAGE, Justice

(concurring).

I join in the concurrence of Justice Paul H. Anderson.

      . In a subsequent interview with Deputy Son-drol on May 10, 2004, McGee said that he had given appellant only $6,000 and that appellant provided the other $6,000 to purchase the drugs. McGee also stated that his two prior trips to Texas with appellant occurred in January and September of 2003. According to McGee, appellant claimed to have picked up 30 pounds of marijuana on the January trip and appellant returned from the September trip with almost 5 ounces of cocaine and a gun.

      . Only two of these findings were necessary for the conspiracy to constitute "a major controlled substance offense” under Minn. Sent. Guidelines II.D.2.b(5).

      . We previously granted respondent’s motion to strike section III of appellant’s brief and deferred respondent’s motion to strike section II pending consideration of the appeal on the merits. Respondent’s motion to strike section II of appellant’s brief is granted.

      . The Court defined " 'statutory maximum’ for Apprendi purposes” as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531.

      . Because we interpret the Confrontation Clause of the Minnesota Constitution identically to the Confrontation Clause of the United States Constitution, State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996), the Confrontation Clause of the Minnesota Constitution applies in jury sentencing trials as well.

      . The sentencing proceeding at issue in Adams was an "extended sentence hearing" under Minn.Stat. § 609.16 (1978) (repealed 1978, effective May 1, 1980), which provided for the imposition of an "extended term of imprisonment” for a defendant who had previously been convicted of a felony.

      . Appellant also objected to the admission of his own recorded police statement as irrelevant, but he now acknowledges that his statement was properly admitted.

      . We also note that Minn. R. Evid. 1101 was adopted in 1977, long before the Supreme Court rendered its decisions in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Accordingly, a jury sentencing trial is not a sentencing proceeding as contemplated when Minn. R. Evid. 1101 was adopted.

      . Minnesota Statutes § 634.04 and the accompanying accomplice corroboration instruction requirement provide defendants greater protection than did the common law requirement that courts give "a cautionary instruction concerning the weight of [accomplice] testimony.” State v. Armstrong, 257 Minn. 295, 307, 101 N.W.2d 398, 406 (1960). The applicability of the common law rule in jury sentencing trials is an issue that is not properly before us.

      . The 120-month upward durational departure imposed in this case is substantially greater than the upward durational departures imposed by other district courts in cases involving the major controlled substance crime aggravating sentencing factor. See State v. Osborne, 715 N.W.2d 436, 439 (Minn.2006) (imposing a 225-month sentence, which was a 67-month upward departure from the presumptive 158-month sentence); State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002) (imposing a 122-month sentence, which was a 24-month upward departure from the presumptive 98-month sentence).