author: ANDERSON, RUSSELL A., Chief Justice. ANDERSON, PAUL H., Justice GILDEA, J. PAGE, Justice.

text:
    STATE of Minnesota, Appellant, v. Douglas Alan DETTMAN, Respondent.
    No. A04-975.
    Supreme Court of Minnesota.
    Aug. 10, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmstead County Attorney, Daniel Paul Haugrud Reiff, Assistant County Attorney, Rochester, MN, for Appellant.
    John M. Stuart, State Public Defender, Benjamin J. Butler, Steven P. Russett, Richard Andrew Schmitz, Assistant Public Defenders, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Respondent Douglas Alan Dettman pleaded guilty to one count of first-degree criminal sexual conduct. The district court sentenced him to 216 months in prison, a 72-month upward departure from the presumptive sentence. See Minn.Stat. § 609.342, subd. 2(b) (2004). While his case was pending on appeal, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Based on Blakely, the court of appeals reversed Dettman’s sentence, holding that the upward sentencing departure was unconstitutional because it was based on judicial findings of fact. State v. Dettman, 696 N.W.2d 812, 813, 816 (Minn.App.2005). The court concluded that Dettman’s statements at his plea hearing could not constitutionally be used to support the departure “[bjecause Dett-man did not expressly waive his right to a jury determination of any fact supporting an upward durational departure.” Id. at 815. We affirm the court of appeals’ decision, holding that the upward departure violated Dettmaris Sixth Amendment right to a jury determination of facts supporting an upward durational departure. Because Dettmaris statements were not accompanied by an express, knowing, voluntary, and intelligent waiver of this right, they cannot be used to support the upward departure.

The facts giving rise to this appeal are relatively straightforward. In the late hours of May 12 or very early on May 13, 2003, Dettman called L.L.B. on the phone and asked her to come to his apartment to assist her boyfriend, who Dettman said was in trouble. When L.L.B. arrived at Dettman’s apartment, Dettman told her that her boyfriend had gone to purchase cigarettes, and L.L.B. entered the apartment to wait for his return. Dettman then grabbed a piece of duct tape and attempted to cover L.L.B.’s mouth with it. When L.L.B. fought back, Dettman restrained her and told her to be quiet or he would cut her throat. Dettman then instructed L.L.B. to get undressed and get on his bed, where he penetrated her vaginally with his fingers and put his mouth on her vagina. According to the criminal complaint, Dettman also told police that he ordered L.L.B. to sit on his face and urinate into his mouth. At this point, the attack was interrupted by the Rochester police, who had responded to a report of a woman screaming for help in Dettman’s apartment. The police found L.L.B. naked on Dettman’s bed with blood around her mouth. The police also found a folding knife in Dettman’s pants pocket.

Dettman was arrested and charged with three counts of first-degree criminal sexual conduct and one count of kidnapping. On January 12, 2004, Dettman pleaded guilty to one count of first-degree criminal sexual conduct in exchange for dismissal of the other charges. At the plea hearing, the district court informed Dettman of his right to a jury trial on the issue of guilt, which he waived. Dettman then admitted luring L.L.B. to his apartment by telling her that her boyfriend was in trouble, performing multiple types of sexual penetration, and causing her to fear great bodily harm by threatening to slit her throat.

On March 1, 2004, the district court sentenced Dettman to 216 months in prison, a 72-month upward departure from the 144-month presumptive sentence provided in Minn.Stat. § 609.342, subd. 2(b). The court based the departure on the particular cruelty with which the offense was committed and the lasting psychological impact on the victim. With respect to particular cruelty, the court determined that Dettman (1) exploited his knowledge of L.L.B.’s relationship with her boyfriend to lure her to Dettman’s apartment, (2) subjected L.L.B. to multiple forms of penetration, (3) planned and prepared for the assault by pre-cutting duct tape that he planned to use to silence L.L.B., and (4) ordered L.L.B. to engage in especially repulsive acts.

Dettman appealed, and while his appeal was pending before the court of appeals, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Court reiterated its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the Sixth Amendment requires that, other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed “statutory maximum” must be proved to a jury beyond a reasonable doubt. Blakely, 542 U.S. at 301-02, 124 S.Ct. 2531; Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Blakely reformulated the definition of “statutory maximum” 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. Thus, the rule established by the Apprendi line of cases is that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

At the court of appeals, Dettman argued that the upward departure in his case violated the rule announced in Blakely because the departure was based on facts found by the district court. Relying on Blakely, the court of appeals concluded that the upward departure violated Dett-man’s Sixth Amendment right to a jury determination of aggravating sentencing factors and reversed and remanded for resentencing. Dettman, 696 N.W.2d at 816. The court of appeals noted that the “findings supporting the upward durational departure were made solely by the district court,” and, under Blakely, Dettman was “entitled to a jury determination of any fact that increases the presumptive sentence.” Dettman, 696 N.W.2d at 815. The court concluded that a defendant must make an express on-the-record waiver of his right to a jury determination of aggravating sentencing factors before his statements at a plea hearing may be used to enhance his sentence. Id. “Because Dett-man did not expressly waive his right to a jury determination of any fact supporting an upward durational departure, his ‘admissions’ at the plea hearing should not be considered as such for purposes of the [admission] exception to the rule in Blakely.” Dettman, 696 N.W.2d at 815. We granted the state’s petition for review.

We have previously determined that Blakely announced a new rule of constitutional criminal procedure which applies to cases pending on direct review at the time Blakely was decided. State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005); O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004). Because Dettman’s direct appeal was pending before the court of appeals when Blakely was decided, the substantive rule of Blakely applies retroactively to Dettman’s case. See Houston, 702 N.W.2d at 270, 274.

On appeal to this court, the state argues that Dettman forfeited appellate consideration of the alleged Blakely violation by failing to preserve the error at the district court. The state contends that most district court errors, if not properly preserved for appeal, are deemed forfeited and that any appellate review of the error must be under the plain error standard. In addition, the state argues that, irrespective of the standard of review, no Blakely error occurred in this case because Dett-man admitted the facts necessary to support the sentencing departure at his plea hearing and in statements made to police, which were later incorporated into the complaint. This case thus presents two Blakely-related questions: (1) whether Dettman forfeited appellate review of his Blakely claim by failing to object on Blakely grounds at the district court; and (2) whether the upward sentencing departure may constitutionally be based on statements Dettman made at his plea hearing and statements attributed to him in the criminal complaint.

I.

We first address the state’s contention that Dettman forfeited consideration on appeal of his Blakely claim because he failed to preserve the alleged Blakely error below. The state correctly notes that Dettman did not object at the district court to his sentence on the basis of a violation of his Sixth Amendment jury-trial right. Generally, a district court error not objected to at the district court is considered forfeited for purposes of appeal. See, e.g., State v. Blanche, 696 N.W.2d 351, 375 (Minn.2005); State v. Blom, 682 N.W.2d 578, 614 (Minn.2004). But here resolution of this question is controlled by our recent holding in State v. Osborne, 715 N.W.2d 436 (Minn.2006). In Osborne, we concluded that a defendant’s failure to object on Blakely grounds at the district court does not forfeit appellate review of an alleged Blakely error. Osborne, 715 N.W.2d at 446. Accordingly, we hold that Dettman did not forfeit appellate review of the alleged Blakely error in this case.

II.

We now turn to the state’s second argument — that no Blakely error occurred because Dettman admitted the facts used to enhance his sentence. The alleged Blakely error in this case presents a constitutional question that we review de novo. See State v. Barker, 705 N.W.2d 768, 771 (Minn.2005).

Prom the Apprendi line of cases, it is clear that Dettman’s sentence could not constitutionally have been enhanced, beyond the maximum sentence authorized by the facts established by his guilty plea, based on judicial findings of fact. See Blakely, 542 U.S. at 303-05, 124 S.Ct. 2531; State v. Shattuck, 704 N.W.2d 131, 142-43 (Minn.2005). The district court’s imposition of an upward departure was permissible only if the facts authorizing the departure were either found by a jury beyond a reasonable doubt or admitted by Dettman. See Booker, 543 U.S. at 244,125 S.Ct. 738. Because it is undisputed that a jury did not find the aggravating factors used to enhance Dettman’s sentence, the narrow issue before us is whether Dett-man sufficiently admitted the facts authorizing the upward departure to satisfy the requirements of Blakely.

The state argues that Dettman admitted, both at his plea hearing and in police interrogation later incorporated into the complaint, facts supporting the upward departure, and therefore no Blakely error occurred. At his plea hearing, Dettman and his attorney had the following exchange:

Q. On May 12th or early May 13th did you place a phone call to a young woman with the initials L.L.B.?
A. Yes.
Q. And you asked her to come over to your apartment to help her boyfriend who was in trouble, is that correct?
A. Yes.
Q. She drove to your apartment and eventually came up to your apartment, is that correct?
A. Yes.
Q. When she got there her boyfriend was not at the apartment, is that correct?
A. Yes.
Q. You had told her that her boyfriend had gone out to get cigarettes, is that correct?
A. Yes.
Q. You penetrated her vaginally with your fingers, is that correct?
A. Yes.
Q. You also put your mouth in her vaginal region, it that correct?
A. Yes.

In addition, Dettman made several statements to police that could support the district court’s upward departure if they constitute admissions on which an upward departure may constitutionally be based. Dettman told police that he planned for the assault by precutting a strip of duct tape to muzzle L.L.B. and by arranging pillows on his bed where he planned to have her lie. Dettman also told police that he ordered L.L.B. to urinate into his mouth.

The state argues that these statements together constitute admissions supporting the district court’s finding of particular cruelty, which the court based on Dett-man’s exploitation of his knowledge of L.L.B.’s relationship with her boyfriend to lure her to Dettman’s apartment, his planning for the assault, his ordering L.L.B. to engage in especially repulsive acts, and the multiple forms of penetration. The state contends that Blakely does not require an express waiver of the right to a jury determination of aggravating sentencing factors before a defendant’s admissions may be used to enhance his sentence. In opposition, Dettman argues that a knowing, voluntary, and intelligent waiver of that right must precede the use of a defendant’s admissions to enhance his sentence, and, in the absence of such a waiver by Dettman, the upward departure in his case violates the Sixth Amendment. Dettman notes that he neither stipulated to the aggravating factors found nor consented to judicial fact finding on those issues.

The court of appeals concluded that a knowing, voluntary, and intelligent waiver of a defendant’s Sixth Amendment right to a jury determination of facts supporting an upward sentencing departure is required before the defendant’s statements may be used to enhance his sentence. Dettman, 696 N.W.2d at 815. Because Dettman did not expressly waive this right, the court held that his statements could not be used to enhance his sentence. Id.

In so holding, the court of appeals relied largely on an earlier court of appeals case, State v. Hagen, 690 N.W.2d 155 (Minn. App.2004). In Hagen, the court of appeals considered whether a defendant’s statements at a sentencing hearing constituted admissions that could be used to enhance his sentence. Id. at 157-58. The court reasoned that “[t]he effect of a defendant’s admission to an aggravating factor is to waive the defendant’s constitutional right to a jury trial on the sentencing issue.” Id. at 158. The court observed that a defendant’s waiver of his Sixth Amendment right to a jury trial must be knowing, intelligent, and voluntary. Hagen, 690 N.W.2d at 158-59. The court noted that although Hagen, as part of his guilty plea, had waived his right to a jury trial on the elements of the offense, he had not knowingly waived his right to a jury determination of aggravating sentencing factors because he was not informed of that right at the time of sentencing. Id. at 159. In the absence of an express, knowing waiver, the court held that Hagen’s statements could not be used to enhance his sentence. Id. at 159-60.

In addition, the court in Hagen noted that a defendant’s stipulation to an element of an offense must be supported by a waiver of the defendant’s right to a jury trial on that element. Hagen, 690 N.W.2d at 159 (citing State v. Berkelman, 355 N.W.2d 394, 397 (Minn.1984)). The court concluded that because the Blakely line of cases has “effectively dismantled the distinction between offense elements and sentencing factors,” a defendant may stipulate to a sentencing factor only after a waiver of the right to a jury trial on that factor. Hagen, 690 N.W.2d at 159.

In State v. Barker, we expressed approval of the court of appeals’ analysis and conclusion in Hagen. State v. Barker, 705 N.W.2d 768, 773 (Minn.2005). Our statements in Barker, however, were dicta, and we have not yet had occasion to dis-positively decide whether a knowing waiver is required before a defendant’s statements at his guilty-plea hearing may be used to enhance his sentence. With that issue now squarely before us, we hold 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. Because Dettman did not knowingly waive this right, his statements at his plea hearing cannot be used to enhance his sentence, and the upward sentencing departure in his case violates the dictates of Blakely,

The Apprendi line of cases establishes the principle that a defendant’s constitutional right to a jury trial extends to any fact, other than the fact of a prior conviction, that is used to sentence the defendant. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; State v. Allen, 706 N.W.2d 40, 46 (Minn.2005); see also Blakely, 542 U.S. at 304, 124 S.Ct. 2531 (recognizing that the Sixth Amendment jury-trial right extends to all facts that the law makes essential to punishment); see also Apprendi, 530 U.S. at 477, 494 n. 19, 120 S.Ct. 2348 (noting that a criminal defendant is entitled to a jury finding of each element of the offense with which he is charged and that a fact used to enhance a sentence is the functional equivalent of an element of an offense). This right is grounded in the Sixth Amendment’s guarantee of the right to a jury trial and the requirement of proof beyond a reasonable doubt. See Apprendi, 530 U.S. at 477,120 S.Ct. 2348; see also Blakely, 542 U.S. at 305-06, 124 S.Ct. 2531 (“Our commitment to Apprendi * * * reflects * * * the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”). The use of a defendant’s statements to enhance his sentence thus entails a relinquishment of his Sixth Amendment right to a jury determination of facts supporting an upward sentencing departure.

It is well established that a defendant’s waiver of his right to a jury trial on the elements of an offense must be knowing, intelligent, and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Ross, 472 N.W.2d 651, 653 (Minn.1991); State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn.1979); see also Minn. R.Crim. P. 26.01, subd. l(2)(a). We see 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. Both rights arise from the same Sixth Amendment guarantee, and the Supreme Court has said that a fact used to enhance a sentence is the “functional equivalent of an element of a greater offense.” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348; see also id. at 494, 120 S.Ct. 2348 (commenting that the distinction between elements and sentencing factors is “constitutionally novel and elusive”).

The dissent relies on language in Blakely that facts “admitted by a defendant” may be used to determine the defendant’s sentence to support its conclusion that Dettman’s plea hearing statements could constitutionally be used to enhance his sentence. This reasoning begs the question of what constitutes an “admission” for Blakely purposes. In the more familiar context of the Sixth Amendment right to a jury trial on the elements of an offense, it is clear that only a defendant’s statement made after a knowing waiver of his right to jury trial constitutes an admission that dispenses with the state’s burden of proving offense elements to a jury. See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (distinguishing between a guilty plea and a mere confession and holding that a valid guilty plea requires a knowing waiver of the right to a jury trial); Minn. R.Crim. P. 15.01 (requiring a waiver of the right to a jury trial as part of a valid guilty plea). Without such a waiver, a defendant’s admissions are merely evidence that may be considered by a jury in determining guilt. See State v. Brown, 212 Ariz. 225, 129 P.3d 947, 952 (2006) (“Under the Sixth Amendment; a defendant who takes the stand at trial and admits the- existence of one or more of the elements of an offense does not thereby surrender his right to have the jury find all of the elements of the crime.”). The Supreme Court’s equation of sentencing factors with elements of an offense compels the conclusion that, just as a defendant’s admission to an element of an offense cannot be used in lieu of a jury finding unless the defendant knowingly waives his right to a jury trial on that element, so’ too must a defendant’s admission of a fact supporting an upward sentencing departure be accompanied by a knowing waiver of his right to a jury finding on that fact before the admission may be used to enhance his sentence.

Furthermore, language in Blakely supports our conclusion that an express waiver is required before a defendant’s statements may be used to enhance his sentence. In Blakely, the Court stated,

nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.

Blakely, 542 U.S. at 310, 124 S.Ct. 2531 (citation omitted). This passage indicates that a defendant’s stipulation to aggravating sentencing factors entails a waiver of his right to a jury trial on those factors. Long-standing Sixth Amendment jurisprudence dictates that such a waiver must be knowing, voluntary, and intelligent. See Brady, 397 U.S. at 748, 90 S.Ct. 1463; Ross, 472 N.W.2d at 653.

We are aware that several federal courts of appeals have upheld upward sentencing departures based on facts admitted at a sentencing hearing, a plea hearing, or in a plea agreement, without requiring an express waiver of the right to a jury determination of aggravating sentencing factors. See, e.g., United States v. Pittman, 418 F.3d 704, 709 (7th Cir.2005); United States v. Monsalve, 388 F.3d 71, 73 (2d Cir.2004); United States v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir.2004); United States v. Lucca, 377 F.3d 927, 934 (8th Cir.2004). But these cases do not contain any reasoning supporting their conclusion that a waiver is not necessary. Instead, the cases simply cite Blakely for the proposition that facts admitted by a defendant may be used to enhance a sentence. See, e.g., Saldivar-Trujillo, 380 F.3d at 279; Lucca, 377 F.3d at 934. We believe our approach is preferable to that of the federal circuits because our approach more appropriately takes into account long-standing principles regarding a defendant’s waiver of his jury-trial rights. We agree with the Colorado Supreme Court that a waiver requirement “furthers the central goal of Blakely, which was to correct a system ‘in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum sentence balloon from as little as five years to as much as life imprisonment.’ ” People v. Isaacks, 133 P.3d 1190, 1195 (Colo.2006) (quoting Blakely, 542 U.S. at 311,124 S.Ct. 2531).

The state cites our decision in State v. Leake, 699 N.W.2d 312 (Minn.2005), in support of the argument that an express waiver is not required before a defendant’s plea hearing statements may be used to enhance his sentence. In Leake, the district court relied on a defendant’s statements during testimony to establish the factual basis for a guilty plea to an earlier offense to conclude that the earlier offense was a “heinous crime,” a fact then used to enhance the defendant’s sentence for the current offense. Id. at 319, 324-25. We held that the defendant’s plea hearing statements for the prior offense could be used to establish that the prior offense was a “heinous crime” and thus enhance the defendant’s sentence for the current offense, without requiring an express waiver of the right to a jury determination of aggravating sentencing factors. Id. at 324-25.

Leake is distinguishable from the ease at bar in two crucial ways and thus does not control resolution of the issue presented here. First, in Leake, the admission used to enhance Leake’s sentence was an admission to an essential element of a prior offense to which Leake had pleaded guilty — a “fact established by a plea of guilty.” Leake, 699 N.W.2d at 324; see Booker, 543 U.S. at 244, 125 S.Ct. 738. As part of his guilty plea to the earlier offense, Leake had knowingly waived his right to a jury trial as to the elements of that offense. Here, the statements used to support Dettman’s enhanced sentence were not admissions to essential elements of the offense to which Dettman pleaded guilty. See Minn.Stat. § 609.342, subd. 1 (2004) (setting forth the elements of first-degree criminal sexual conduct).

Second, unlike this case, Leake involved Blakely’s prior conviction exception, “which appears to incorporate its own admission exception.” Barker, 705 N.W.2d at 774; see Leake, 699 N.W.2d at 323-25. The United States Supreme Court has expressly held that a defendant’s statements during a plea colloquy may be used to determine the character of a prior offense for purposes of Blakely’s prior conviction exception, without requiring a knowing waiver of the right announced in Blakely. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Leake, 699 N.W.2d at 325. Language in Shepard suggests that admissions used in the context of Blakely’s prior conviction exception need not be identical to admissions used to support aggravating sentencing factors unrelated to the fact of a prior conviction. See Shepard, 544 U.S. at 24-25, 125 S.Ct. 1254 (plurality opinion); Barker, 705 N.W.2d at 775. Because Dett-man’s statements were not used to support the fact of a prior conviction, our conclusion in Leake is inapplicable here.

Dettman’s waiver of his right to a jury trial on the issue of guilt cannot be interpreted as a waiver of his right to a jury determination of aggravating sentencing factors. Dettman knowingly waived his jury-trial right as to the elements of first-degree criminal sexual conduct. However, because Dettman was sentenced before Blakely was decided, he could not have known that he had a right to a jury determination of the facts used to enhance his sentence — facts going beyond the elements of first-degree criminal sexual conduct— and thus did not knowingly waive that right. See Minn.Stat. § 609.342, subd. 1; Brown, 129 P.3d at 950-51.

In sum, in the absence of a knowing waiver of his Sixth Amendment right to a jury determination of facts supporting an upward sentencing departure, Dett-man’s statements at his plea hearing cannot be used as admissions to enhance his sentence. Additionally, Dettman’s statements to police, later incorporated into the complaint, are not admissions on which a judge may base a sentence enhancement because they were not made for purposes of dispensing with the state’s burden of proof after a knowing waiver of Dettman’s jury-trial rights. Accordingly, because the upward departure in this case was based on facts neither found by a jury nor properly admitted by Dettman, we hold that the departure violated Dettman’s Sixth Amendment rights.

III.

Having determined that the upward sentencing departure in this case violated the rule established in Blakely, we now consider whether this error was harmless. See Osborne, 715 N.W.2d at 447; see also Washington v. Recuenco, — U.S. —, 126 S.Ct. 2546, 2553, - L.Ed.2d - (2006) (concluding that Blakely errors are subject to harmless error analysis). Because the erroneous departure increased the length of Dettman’s sentence by 72 months and because we cannot say with certainty that a jury would have found the aggravating factors used to enhance Dettman’s sentence had those factors been submitted to a jury in compliance with Blakely, we conclude that the Blakely error was not harmless. See Osborne, 715 N.W.2d at 447. Accordingly, we affirm the court of appeals and remand to the district court for resentencing consistent with State v. Shattuck, 704 N.W.2d 131, 148 (Minn.2005). Because we affirm the court of appeals’ reversal of Dettman’s sentence based on the Blakely error, we do not reach Dettman’s alternative argument that the facts of this case do not present substantial and compelling circumstances justifying an upward sentencing departure.

Affirmed.

ANDERSON, PAUL H., Justice

(concurring specially).

I agree with the result reached by the majority, but disagree with the majority’s analysis for the reasons stated in my special concurrence in State v. Osborne. See State v. Osborne, 715 N.W.2d 436, 448-52 (Minn.2006) (Anderson, Paul H., J., concurring specially) (stating that “Blakely articulated a significant new rule of law, that it is still in its infancy, and ultimately, * * * it is the United States Supreme Court that is best suited to guide the continued development of this new rule.”); see also Washington v. Recuenco, — U.S. —, 126 S.Ct. 2546, 2551, 2553, - L.Ed.2d- (2006) (holding that failure to submit a sentencing factor to the jury is not structural error and that the objected-to Blakely error was subject to a harmless-error analysis, citing to Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)) for the proposition that “most constitutional errors can be harmless.”).

Unlike the majority, I would apply the plain error doctrine to the unobjected-to Blakely error in this case and conclude that there was error, it was plain because the aggravating factors were not admitted to a degree that the concerns raised in Blakely are satisfied, that the plain error affected Dettman’s substantial rights, and that the fairness and the integrity of Dett-man’s trial was affected to the extent that he is entitled to relief. Using this analytical framework, it is not necessary to reach the question of waiver.

I would affirm the court of appeals.

GILDEA, J.

(dissenting).

I respectfully dissent from the majority’s conclusion that the district court erred in imposing an upward departure sentence. The district court’s decision to depart was based on facts Dettman admitted after he executed a knowing and voluntary waiver of his trial rights. I would reverse the court of appeals and uphold the sentence imposed.

In Blakely v. Washington, the Supreme Court recognized that sentencing courts could use facts the defendant admitted in imposing sentence. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court imposed an upward departure sentence in this case based on facts Dettman admitted. The majority concludes that Dettman’s admissions were not really admissions for Blakely purposes because he did not explicitly waive any right that Blakely gave him to have a jury decide the facts he had admitted. In my view the majority’s conclusion is wrong for two independent reasons. First, Blakely did not give Dettman any rights that he needed to waive. Second, if Blakely gave Dettman any rights, well-settled precedent compels the conclusion that Dettman’s waiver of his trial rights is valid notwithstanding the change in the sentencing procedures announced in Blakely.

I.

In Blakely, the Supreme Court said that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (citing Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for “facts admitted by the defendant”); see also United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). I believe the Supreme Court meant it when it said that sentencing courts could use “facts * * * admitted by the defendant” as a basis to depart without implicating the rule announced in Apprendi. Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). In other words, if a fact has not been admitted by the defendant, the sentencing court may not use it as a basis to depart unless the fact has been found by a jury. Here, the fact was admitted and a jury finding was therefore not necessary for the sentencing court to use the fact as a basis to depart. In my view, the district court did precisely what the Supreme Court authorized.

Dettman waived his trial rights, including his right to remain silent and his right to a jury trial. Prior to accepting Dett-man’s guilty plea, the district court inquired to insure that Dettman understood these and all of his rights. Specifically, the district court asked if Dettman knew that there was no agreement regarding what his sentence would be, and

that at sentencing the actual sentence will be up to the judge who sentences you, * * * after hearing arguments from both sides and that both attorneys are free to make a motion for a downward departure from this guideline sentence and the prosecution is also free to make a motion for an upward departure?

Dettman responded that he understood. The judge then inquired to make sure that Dettman understood that “there are no guarantees about whether either of those motions would be granted and it’s possible that you could be sentenced to longer than 144 months?” Again Dettman indicated that he understood and stated that he wanted to proceed with his guilty plea.

Following the district court’s examination, Dettman admitted that he lured the victim to his apartment through a lie, restrained her, threatened to cut her throat if she was not quiet, engaged in multiple acts of sexual penetration without the victim’s consent, and that the victim feared for her safety. These admissions were beyond the elements of the offense to which Dettman pleaded guilty and accordingly, could be used to support an aggravated departure as long as the departure complied with the rule in Blakely.

Before Blakely, trial courts in Minnesota based upward departures upon three types of facts: 1) a fact admitted by the defendant, 2) a fact reflected in the jury ver-diet, and 8) a fact found by a judge without first obtaining the defendant’s waiver of a jury trial. In Blakely, the Supreme Court ruled that, under sentencing guidelines similar to Minnesota’s, the use of the third type of fact (a fact found by a judge without first obtaining the defendant’s waiver of a jury trial) violated the defendant’s Sixth Amendment right to a jury trial. See 542 U.S. at 303, 124 S.Ct. 2531. Blakely did not change the law regarding the first two types of facts. An examination of Blakely confirms this result.

In Blakely, the defendant entered an Alford plea; he did not make factual admissions but merely admitted that the evidence the state had was sufficient to convict him. See State v. Blakely, 111 Wash. App. 851, 47 P.3d 149, 153 (2002), rev’d, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Supreme Court thought it important to note that the defendant had admitted only to the elements of the crime to which he pleaded guilty — “but no other relevant facts.” Blakely, 542 U.S. at 299, 124 S.Ct. 2531.

After the plea, the sentencing court imposed an upward departure, and not the sentence recommended in the plea agreement. The sentencing judge imposed an upward departure based not on any facts admitted by the defendant, but on the victim’s description of the crime. 542 U.S. at 300, 124 S.Ct. 2531 (“Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. After hearing [the victim’s] description of the kidnapping, however, the judge rejected the State’s recommendation and imposed an exceptional sentence of 90 months * * Blakely objected and the court scheduled a sentencing hearing. Many witnesses testified during the three-day hearing, id., including Blakely who “took the opportunity to explain to the court his version of the events and the motivations of the witnesses against him.” 47 P.3d at 160. At the conclusion of the hearing, the judge denied Blakely’s objection and “adhered to [the judge’s] .initial determination of deliberate cruelty.” 542 U.S. at 301, 124 S.Ct. 2531. The Supreme Court reversed the departure in Blakely because “[t]he facts supporting [the sentencing court’s] finding [of deliberate cruelty] were neither admitted by [defendant] nor found by a jury.” Id. at 303, 124 S.Ct. 2531.

In my view, the error in the majority’s reasoning is its contention that “[t]he use of a defendant’s statements to enhance his sentence thus entails a relinquishment of his Sixth Amendment right to a jury determination of facts supporting an upward sentencing departure.” A defendant did not have the right to a jury determination of admitted sentencing factors before Blakely and neither Blakely nor its progeny have created such a right. Instead, in determining upward departures, defendants now have a right to. a jury determination of facts other than the two types of facts the Blakely court specifically said do not require a jury determination (i.e. facts admitted by the defendant or facts reflected in a jury verdict). Blakely did not change precedent that allowed a sentencing court to impose an aggravated departure based on facts the defendant has admitted.

The majority argues that the Blakely admission exception “begs the question of what constitutes an ‘admission’ for Blakely purposes.” The Supreme Court, however, has provided the answer to the majority’s question. In articulating the admission exception in Blakely, 'the Supreme Court cited to its opinion in Apprendi. Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (citing Apprendi, 530 U.S. at 488, 120 S.Ct. 2348). In discussing admissions in Apprendi, the Supreme Court referred to its earlier case in Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See Apprendi, 530 U.S. at 487-88,120 S.Ct. 2348. In describing its decision in Almendarez-Torres, the Supreme Court emphasized that because Almendarez-Torres had admitted a fact during his plea hearing, that fact could be used to increase Almendarez-Torres’ sentence without violating the rule announced in Apprendi. Apprendi 530 U.S. at 487-88, 120 S.Ct. 2348. Most importantly (for purposes of our analysis), the fact admitted during Almendarez-Torres’ plea was not an element of the crime to which he pleaded guilty. Thus, to answer the majority’s question, at the very least, the Blakely admission exception applies to a fact admitted during a defendant’s plea hearing that is not an element of the crime to which the defendant pleaded guilty. This, of course, is exactly the circumstance of Dettman’s case.

Every federal circuit court of appeals has indicated that sentencing courts do not run afoul of Blakely or the Sixth Amendment when they rely on a defendant’s admissions of fact in sentencing. See, e.g., United States v. Saldivar-Trujillo, 380 F.3d 274, 279 (6th Cir.2004) (“The sentence in the present case was based solely upon the facts admitted by [the defendant] as part of his guilty plea. Blakely therefore does not affect the validity of his sentence.”). Even though Dettman is arguing that a “right” based on the U.S. Constitution has been violated, the majority dismisses the federal cases without discussion, and relies instead on certain state cases. While it seems to me that the federal cases are more useful to an interpretation of what is purportedly a federal constitutional “right,” we need not even look outside our own jurisprudence to resolve this case.

In Shattuck, this court implicitly recognized that when the “guilty plea alone” supports an enhanced sentence, the rule in Blakely is not implicated. 704 N.W.2d at 131, 141-42 (Minn.2005); see also id. at 142 (“Blakely expressly permits a defendant to either stipulate to relevant facts or consent to judicial factfinding regarding sentencing factors.”). In State v. Barker, we specifically recognized “the Blakely admission exception.” 705 N.W.2d 768, 773 (Minn.2005).

Finally, we relied on the “admission exception” in upholding an enhanced sentence in State v. Leake, 699 N.W.2d 312 (Minn.2005). We expressly said that the defendant’s admissions could be used by the sentencing court in Leake. We began our analysis in Leake by discussing “the prior conviction exception recognized in Apprendi” Leake, 699 N.W.2d at 323. The question presented in Leake however could not be resolved merely by applying the prior conviction exception. The district court also reviewed the factual basis the defendant provided in pleading guilty to the prior criminal sexual conduct charge in determining that the crime was a “heinous crime.” We upheld this judicial determination under the Apprendi/Blakely rule because it was based on admissions made by the defendant. Leake, 699 N.W.2d at 324.

The majority attempts to distinguish Leake, arguing that the use of the defendant’s admissions was constitutional because those admissions were made within the context of the prior conviction exception to the Apprendi/Blakely rule. Nothing in Leake supports this limitation. We unqualifiedly said in Leake: “Under both Apprendi and Blakely, a defendant’s admissions can be used to determine sentencing enhancements.” Leake, 699 N.W.2d at 324. We also cited with approval the decisions from the federal circuits, including some of the federal cases cited supra, that hold that sentencing courts may rely on defendants’ factual admissions. See Leake, 699 N.W.2d at 325 (citing federal cases). Finally, the admissions in Leake were made as part of a guilty plea — -just as in this case. We did not condition the sentencing court’s reliance on these factual admissions on a finding that the defendant had waived a separate right to have a sentencing jury determine these facts. The defendant admitted to the facts as part of a guilty plea and the sentencing court in the later case was permitted to rely on those facts as the basis for imposing an enhanced sentence. The same result is warranted in this case. I would hold that Dettman’s admissions at his plea hearing were properly considered by the district court in determining whether to impose an upward sentencing departure.

II.

Even if Blakely gave Dettman a right to jury trial on sentencing factors, I would conclude that his waiver of his trial rights included this Blakely right. The majority bases its conclusion that the district court erred in imposing an upward departure on the assertion that “Dettman’s waiver of his right to a jury trial on the issue of guilt cannot be interpreted as a waiver of his right to a jury determination of aggravating sentencing factors.” The majority cites to our rule that waivers of the right to jury trial must be knowing and voluntary and articulated on the record. There is no dispute that Dettman made such a waiver in this case. In his Petition to Enter a Plea of Guilty and independently on the record, Dettman gave up his trial rights, including his right to “trial by jury.” The dispute here is only about whether Dettman’s waiver was “knowing” as to any Blakely rights.

Because Dettman did not explicitly waive a jury finding of aggravating factors, the majority concludes that his waiver of his trial rights was unknowing and therefore ineffective as to any rights created by Blakely. Of course, Dettman could not have articulated a waiver of any Blakely rights since the “new rule” in Blakely would not be announced until six months after the district court accepted Dettman’s guilty plea. See State v. Houston, 702 N.W.2d 268, 273 (Minn.2005). I believe the majority errs when it finds that Dett-man’s waiver cannot be viewed as knowing because he did not anticipate the rule announced in Blakely. The Supreme Court and lower federal courts uniformly recognize that a subsequent change in sentencing law does not render a defendant’s guilty plea invalid or make it “unknowing.” I would apply that principle here and conclude that Dettman’s waiver satisfies our rule requiring knowing and voluntary waivers of the right to jury trial.

The leading case from the Supreme Court on the question of whether changes in the law invalidate a guilty plea is Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Brady, the Supreme Court held that “absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Id. at 757, 90 S.Ct. 1463 (emphasis added and citation omitted). In a related opinion issued the same day, the Court stated:

It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.

McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

More recently, the Court has confirmed its holding in Brady, stating “that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.” United States v. Ruiz, 536 U.S. 622, 630, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Specifically referenced as a “form of misapprehension” was the circumstance where a “defendant failed to anticipate a change in the law regarding relevant punishments.” Id. (citing Brady, 397 U.S. at 757, 90 S.Ct. 1463) (internal quotation marks omitted).

Given this clear and long-established precedent, it should be no surprise that every federal circuit court of appeals that has addressed the issue has concluded that the defendant’s guilty plea was knowing, voluntary, and intelligent notwithstanding a subsequent change in the applicable sentencing law. For example, in United States v. Parsons, the defendant pleaded guilty to mail fraud and money laundering. 408 F.3d 519, 520 (8th Cir.2005). The defendant claimed “that the district court committed Sixth Amendment error by enhancing his sentence under the [Federal Sentencing] Guidelines based on the amount of loss” attributable to his crimes. Parsons, 408 F.3d at 521. In addition to concluding that there was no error because Parsons had admitted to the amount of the loss, the Eighth Circuit also concluded that “the development in the law announced by Booker subsequent to Parsons’s guilty plea does not invalidate his plea.” Parsons, 408 F.3d at 521 (citing Brady, 397 U.S. at 757, 90 S.Ct. 1463).

These federal appellate cases recognize that the failure to anticipate a change in the law regarding sentencing does not, as a constitutional matter, undermine the validity of the defendant’s guilty plea. As the Sixth Circuit succinctly stated after reviewing the Supreme Court’s precedent,

the Court has explained that where developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. A valid plea agreement, after all, requires knowledge of existing rights, not clairvoyance.

United States v. Bradley, 400 F.3d 459, 463 (6th Cir.2005), cert. denied, — U.S. —, 126 S.Ct. 145, 163 L.Ed.2d 144 (2005).

Dettman made his guilty plea fully aware of the charges against him, after advice from his counsel, and with a full understanding of the range of consequences he faced as a result of pleading guilty. The analysis in the federal cases compels the conclusion that Dettman’s guilty plea was voluntary, knowing, and intelligent.

In the face of Brady and its progeny, the only way for the majority to conclude that Dettman’s waiver was not valid as to any Blakely rights would be to conclude that Dettman had two separate jury trial rights, one on the question of guilt and a separate one on sentencing factors. The majority cites no case that stands for that proposition.

I would hold that Dettman’s plea does not become unknowing because of the new rule in Blakely.

III.

A final issue remains unaddressed by the majority. Dettman alternatively argues that the facts admitted by him do not present substantial and compelling circumstances justifying an upward sentencing. This argument is without merit. Dettman’s express, knowing, and voluntary admission to multiple forms of sexually penetrating the victim amply supports the district court’s decision to depart. State v. Van Gorden, 326 N.W.2d 633, 635 (Minn.1982); State v. Martinez, 319 N.W.2d 699, 700-01 (Minn.1982).

I would reverse the court of appeals and uphold the sentence originally imposed.

PAGE, Justice.

I join in part II of Justice Gildea’s dissent.

      . The presumptive 144-month sentence in Minn.Stat. § 609.342, subd. 2(b), is the maximum sentence authorized by the facts established by Dettman’s guilty plea — that is, the facts necessary to establish the elements of the offense to which he pleaded guilty. Minn. Stat. § 609.342, subd. 2(b) (establishing a presumptive sentence of 144 months for first-degree criminal sexual conduct); State v. Shattuck, 704 N.W.2d 131, 141 (Minn.2005) (concluding that the presumptive sentence is the "statutory maximum” for Blakely purposes); see also People v. Isaacks, 133 P.3d 1190, 1193 (Colo.2006) (noting that, in cases involving a guilty plea, the right announced in Blakely extends "to all facts beyond those that establish the elements of the charged offense”).

      . Our holding is in line with several other state courts that have held that a knowing, voluntary, and intelligent waiver is required before a defendant’s statements may be used to enhance his sentence. See, e.g., State v. Brown, 212 Ariz. 225, 129 P.3d 947, 951 (2006); Isaacks, 133 P.3d at 1195; State v. Meynardie, 172 N.C.App. 127, 616 S.E.2d 21, 24 (2005); State v. Curtis, 126 Wash.App. 459, 108 P.3d 1233, 1236 (2005).

      . Our recent holding in Osborne that failure to raise a Blakely claim at the district court does not forfeit appellate review of that claim is similarly premised on the jury trial waiver requirement firmly embedded in our jurisprudence and reflected in Minn. R.Crim. P. 26.01. See Osborne, 715 N.W.2d at 442-46.

      . The dissent cites Almendarez-Tones v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), for the proposition that an admission for Blakely purposes includes a fact admitted by a defendant during a plea hearing. But Almendarez-Tones involved an entirely different exception to the rule announced in the Apprendi line of cases, the prior conviction exception, which is not implicated in the case at bar. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other 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.” (emphasis added)); Almendarez-Tones, 523 U.S. at 227, 118 S.Ct. 1219. That is, the fact admitted by the defendant in Al-mendarez-Tones, which the Supreme Court held could be used to enhance his sentence, was the fact of a prior conviction. Almendarez-Tones, 523 U.S. at 227, 118 S.Ct. 1219; see Apprendi, 530 U.S. at 488, 120 S.Ct. 2348 ("[0]ur conclusion in Almendarez-Tones turned heavily upon the fact that the additional sentence to which the defendant was subject was the prior commission of a serious crime.” (quotation omitted)). Had Dettman admitted to a prior criminal conviction, we do not dispute that the conviction could have been used to enhance his sentence under the prior conviction exception, if otherwise permitted under a particular enhancement statute.

      . The Oregon Supreme Court has likewise concluded that an "admission” for Blakely purposes must be a judicial admission — that is, a "statement[ ] 'made by a party * * * for the purpose of dispensing with proof of a fact in issue.’ " State v. Harris, 339 Or. 157, 118 P.3d 236, 244 (2005) (quoting Foxton v. Woodmansee, 236 Or. 271, 386 P.2d 659, 662 (1963)). The court in Harris distinguished such an admission from the broader eviden-tiary concept of an admission by a party opponent. Id. at 244 n. 10.

      . Outside of the Blakely context, we have recognized that a defendant's stipulation to an element of an offense entails a waiver of his right to a jury finding on that element. See Berkelman, 355 N.W.2d at 397 (noting that the defendant "in effect” offered to waive his right to a jury trial on an element of the crime charged by agreeing to stipulate to that element).

      . At the plea hearing, the district court informed Dettman only of his right to a jury trial on the issue of guilt. As the dissent notes, the district court told Dettman that his sentence could be enhanced beyond the 144-month presumptive sentence. But the court never informed Dettman that he had a right to a jury determination of the facts supporting such an enhancement, information crucial to a knowing waiver.

      . Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and its progeny, cited by the dissent, are inapposite here. Brady involved an attempt by a defendant to invalidate his guilty plea due to a subsequent change in the law, which the defendant argued altered the calculus involved in his decision to plead guilty. Brady, 397 U.S. at 756-57, 90 S.Ct. 1463. The Supreme Court rejected Brady’s contention that his decision to plead guilty was unintelligently made because later case law revealed that his decision was based on a faulty legal premise. Id. at 757, 90 S.Ct. 1463. In a later decision, the Court concluded that the possibility that Brady’s plea "might have been influenced by an erroneous assessment of the sentencing consequences if he had proceeded to trial did not render his plea invalid.” United States v. Broce, 488 U.S. 563, 572, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); see Brady, 397 U.S. at 757, 90 S.Ct. 1463; see also McMann v. Richardson, 397 U.S. 759, 772-74, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (holding that a guilty plea is not rendered invalid because subsequent developments in the law reveal that the defendant may have misjudged the admissibility of his confession). Unlike the defendants in Brady and McMann, however, Dettman does not argue, and we do not hold, that his guilty plea was involuntary, unintelligent, or otherwise invalid as a result of his imperfect knowledge of his Sixth Amendment rights at the time of his plea. Instead, we merely conclude that the upward sentencing departure was unconstitutional because Dettman did not knowingly waive his Sixth Amendment right to a jury determination of the facts supporting the departure, and thus his plea hearing statements could not be used to enhance his sentence.

      . Contrary to the dissent's assertion, our interpretation of "admissions” for Blakely purposes does not render the Blakely "admission exception” a nullity. When a defendant properly waives his right to a jury determination of aggravating sentencing factors, his admissions may be used to enhance his sentence.

      . Dettman pleaded guilty to violation of Minn.Stat. § 609.342, subd. 1(c) (2004), which requires sexual penetration under circumstances that “cause the complainant to have a reasonable fear of imminent great bodily harm.”

      . See, e.g., Rairdon v. State, 557 N.W.2d 318, 321, 327 (Minn.1996) (upward departure based on defendant's admission during jury trial of beginning sexual abuse of daughter when she was eight and continuing abuse for five years); State v. Garcia, 302 N.W.2d 643, 645-47 (Minn.1981) (upward departure based on defendant's admissions made during guilty plea), overruled on other grounds by State v. Givens, 544 N.W.2d 774, 777 n. 4 (Minn.1996).

      . The defendant in Apprendi similarly had not admitted the fact the sentencing court used to enhance his sentence. See 530 U.S. at 471, 120 S.Ct. 2348 (noting that defendant "took the stand himself [during the sentencing hearing], explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans.").

      . The majority purports to rely on a portion of Blakely to support its conclusion "that an express waiver is required before a defendant’s admissions may be used to enhance his sentence.” The quotation from Blakely is:
      When a defendant pleads guilty, the State is free to seek judicial enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding. If appropriate waivers are procured, States may continue to offer judicial fact finding as a matter of course to all defendants who plead guilty.

        Blakely, 542 U.S. at 310, 124 S.Ct. 2531 (emphasis added) (citation omitted). The majority emphasizes the Court's use of the word "waivers" in the second sentence, but ignores the Court’s use of the disjunctives "either” and "or” in the first sentence, and it further ignores the Court’s recognition that "appropriate waivers” are required only for "judicial factfinding” — not when a defendant "stipulates to the relevant facts.” Dettman's admissions during his guilty plea are precisely the type of stipulation at issue in this discussion from Blakely.

      . See also United States v. Jimenez-Beltre, 440 F.3d 514, 520 (1st Cir.2006); United States v. Burke, 431 F.3d 883, 889 (5th Cir.2005); United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir.2005); United States v. Lechuga-Ponce, 407 F.3d 895, 896 (7th Cir.2005); United States v. Bartram, 407 F.3d 307, 314 (4th Cir.2005) ("The district court did not err in its fact finding because the facts were based on the defendant’s own admissions [made at the sentencing hearing]. Therefore, we are of the opinion and hold the defendant’s argument under Blakely to be without merit.”), cert. denied, — U.S. —, 126 S.Ct. 1374, 164 L.Ed.2d 82 (2006); United States v. Davis, 407 F.3d 162, 164 (3d Cir.2005); United States v. Coles, 403 F.3d 764, 767 (D.C.Cir.2005); United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.2005) ("Because Shelton admitted to the facts that enhanced his sentence [during the plea colloquy and at the sentencing hearing], there is no Sixth Amendment violation under Booker in this case.”); United States v. Murdock, 398 F.3d 491, 502 (6th Cir.2005) ("Because facts sufficient to support the sentence were admitted by the defendant [during the plea colloquy], his Sixth Amendment rights were not violated in this case.”); United States v. Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir.2005); United States v. Monsalve, 388 F.3d 71, 73 (2d Cir.2004) ("Defendant was sentenced solely on the basis of the drug quantity and type she freely and knowingly admitted in her plea agreement. * * * Thus, the constitutional requirement of a sentence based solely on facts admitted by the defendant set forth in Blakely has been satisfied.”), cert. denied, 543 U.S. 1175, 125 S.Ct. 1387, 161 L.Ed.2d 157 (2005); United States v. Lucca, 377 F.3d 927, 934 (8th Cir.2004) (“No additional finding [beyond the facts defendant admitted as part of guilty plea] was required by the district court to justify the sentence of imprisonment * * *. Accordingly, Lucca's sentence was consistent with the Sixth Amendment as interpreted by Blakely and Ap-prendi.”).

      . At least one state explicitly agrees with the conclusion of the Federal circuits, with others impliedly agreeing. See, e.g., Morgan v. State, 829 N.E.2d 12, 17 (Ind.2005) ("We do not see how the Sixth Amendment is implicated or endangered by permitting judges to use aggravators to enhance sentences so long as the underlying facts supporting the aggra-vator are found by a jury or admitted by a defendant.”); see also State v. Allen, 359 N.C. 425, 615 S.E.2d 256, 265 (N.C.2005), abrogated on other grounds by Washington v. Recuenco, — U.S. —, 126 S.Ct. 2546, — L.Ed.2d — (2006); State v. Ose, 156 Wash.2d 140, 124 P.3d 635, 639 (2005); cf. Lopez v. People, 113 P.3d 713, 719, 723 (Colo.2005) (concluding that "facts admitted by the defendant” may be used as aggravating factors and describing such facts as ''Blakely-compliant”), cert. denied, — U.S. —, 126 S.Ct. 654, 163 L.Ed.2d 529 (2005). In my view, the state cases the majority cites are not helpful to the question presented here. The majority relies on the split opinion from the Colorado Supreme Court in People v. Isaacks, 133 P.3d 1190 (Colo.2006). Isaacks is so factually distinguishable from this case as to make its reasoning inapposite. In Isaacks the sentencing court, in imposing an upward departure, did not rely on statements the defendant made during a guilty plea. Rather, the court used statements in a presentence report and the defendant's failure to object to these statements to find aggravating facts. The court held that reliance on such statements conflicted with Blakely and the Colorado Supreme Court's earlier decision in Lopez, 113 P.3d at 723, which recognized that admissions by a defendant could provide the basis for judicial fact finding on aggravating factors. Isaacks, 133 P.3d at 1192. ("[W]e hold that a defendant’s failure to object to facts in a presentence report does not constitute an admission for purposes of Blakely and Lopez unless the defendant makes a constitutionally sufficient waiver of his right to a jury trial on the facts contained in the report.”). The majority also cites a decision from the Oregon Supreme Court, State v. Harris, 339 Or. 157, 118 P.3d 236 (2005). While the defendant in Harris admitted that he had prior juvenile adjudications, he specifically objected to the use of the juvenile adjudications as a basis to enhance his sentence. Id. at 245. "As a result” of the defendant’s objection, the Harris court could "not say, based upon the record before us, that defendant’s acknowledgement of a prior juvenile adjudication in filling out his guilty plea amounted to either an admission or a knowing waiver of his jury trial right for sentencing purposes.” Id. As the Oregon intermediate appellate court recognized, the rationale of Harris does not apply where a defendant has "admitted all of the facts necessary to justify” an enhanced sentence. State v. Herrera-Lopez, 204 Or.App. 188, 129 P.3d 238, 242 (2006) (distinguishing Harris and noting that "[d]efendant’s guilty plea and his colloquy with the court amount to admissions of that fact. Thus, under a straightforward application of the Blakely rule as restated in Booker, the trial court’s sentence was not unconstitutional.”).

      . As the majority acknowledges, Barker’s agreement "in concept” with the approach the court of appeals adopted in State v. Hagen, 690 N.W.2d 155 (Minn.App.2004), was dicta. See State v. Barker, 705 N.W.2d 768, 773 (Minn.2005).

      . To the extent the district court relied on the victim's testimony as a basis to enhance, we held this "was error as it does not meet the requirements of Blakely.” Leake, 699 N.W.2d at 325 n. 9.

      . The majority also contends that Leake is distinguishable because the admissions relied on were simply admissions to the elements of the offense and Leake had properly waived his right to a jury trial on the question of his guilt or innocence as to that charge. The majority's reading of the Blakely admission exception seems to be that it covers only a defendant’s admissions to elements of the crime. Such a reading would render the exception a nullity in Minnesota because “[t]he reasons used for departing must not themselves be elements of the underlying crime.” State v. Blanche, 696 N.W.2d 351, 378-79 (Minn.2005). This reading would also have rendered the exception a nullity in Blakely itself, because as the Supreme Court mentioned, Washington also disallowed departures to be based on elements of the underlying crime. Blakely, 542 U.S. at 299, 124 S.Ct. 2531 (citing State v. Gore, 143 Wash.2d 288, 21 P.3d 262, 277 (2001), overruled on other grounds by State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005)). I do not believe that the Supreme Court’s careful discussion of admissions was surplusage.

      . The Court later characterized the defendant’s plea in Brady as:
      intelligent because, although later judicial decisions indicated that at the time of his plea he did not correctly assess every relevant factor entering into his decision, he was advised by competent counsel, was in control of his mental faculties, and was made aware of the nature of the charge against him.

        Bousley v. United States, 523 U.S. 614, 619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks and citation omitted).

      . See also United States v. Roque, 421 F.3d 118, 119 (2d Cir.2005) (citing Brady and holding that the defendant could "not withdraw his plea as unintelligent, involuntary, or otherwise illegal, based solely on changes in federal law effected by the United States Supreme Court’s decision in [United States v. Booker].”), cert. denied, — U.S. —, 126 S.Ct. 1094, 163 L.Ed.2d 908 (2006); United States v. Johnson, 410 F.3d 137, 151-53 (4th Cir.2005) ("the issuance of Booker after the plea agreement was reached does not render Johnson's plea unknowing or involuntary”), cert. denied, — U.S. —, 126 S.Ct. 461, 163 L.Ed.2d 350 (2005); United States v. Lockett, 406 F.3d 207, 213 (3d Cir.2005) ("The Supreme Court has explained that where subsequent developments in the law expand a right that a defendant has waived in a plea agreement, that change does not make the plea involuntary or unknowing or otherwise undo its binding nature.”); United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.2005) ("Supreme Court precedent is quite explicit that as part of a plea agreement, criminal defendants may waive both rights in existence and those that result from unanticipated later judicial determinations.”), cert. denied, — U.S. —, 126 S.Ct. 550, 163 L.Ed.2d 466 (2005); United States v. Sahlin, 399 F.3d 27, 31 n. 3 (1st Cir.2005) (“Brady also makes clear that a subsequent judicial decision changing the relevant sentencing law does not permit an attack on whether the plea was knowing.”).

      . The majority cites nothing from our own jurisprudence that supports a conclusion that our understanding of the scope of a guilty plea varies from the Supreme Court’s rule articulated in Brady and McMann. Moreover, while we do not appear to have addressed the issue in the context of sentencing, we have followed the Supreme Court's formulation of the rule in other contexts. See, e.g., State v. Danaher, 293 Minn. 435, 436, 197 N.W.2d 425, 426 n. 2 (1972) ("Waiving trial involves a risk that an attorney’s assessment of the law or facts might later prove to be erroneous.”) (citing McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)); McLaughlin v. State, 291 Minn. 277, 280, 190 N.W.2d 867, 870 (1971) (noting that “[t]he logic advanced in McMann is compelling.”).

      . Blakely itself seems to recognize that the constitution guarantees the defendant one right to a jury trial. My reading is based on the exchange between Justice Scalia (for the majority) and Justice Breyer (in dissent), where the majority agreed with Justice Breyer that the “States are not required to give defendants the option of waiving jury trial on some elements but not others.” 542 U.S. at 310 n. 12, 124 S.Ct. 2531. Blakely also does not prevent a state from giving defendants a separate jury trial on sentencing factors, and I note that as a matter of public policy, I think it preferable post-Apprendi and Blakely for defendants who desire to forego their trial rights to execute separate waivers of a jury finding on guilt and a jury finding on sentencing factors. I do not believe, however, that my public policy preferences shed any light on the constitutional question raised by Dett-man.

      . To conclude otherwise effectively withdraws Dettman’s guilty plea or rewrites the plea agreement the parties reached. I do not believe this court should do either. As the Tenth Circuit said, "The essence of plea agreements * * * is that they represent a bargained-for understanding between the government and criminal defendants in which each side foregoes certain rights and assumes certain risks in exchange for a degree of certainty as to the outcome of criminal matters.” Porter, 405 F.3d at 1145. One of the risks that Dettman assumed was the risk that the Supreme Court would announce what we have described as a "new rule.” Houston, 702 N.W.2d at 273. Because Dettman assumed that risk, his right to a trial by jury is validly foregone and his guilty plea should be upheld as negotiated by the parties and accepted by the district court.


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. James Michael GREEN, Appellant.
    No. A05-336.
    Supreme Court of Minnesota.
    Aug. 10, 2006.

      Mike Hatch, Minnesota Attorney General, Susan Gaertner, Jeanne L. Schleh, Assistant Ramsey County Attorneys, Saint Paul, MN, for Respondent.
    Suzanne M. Senecal-Hill, Assistant State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Appellant James Green appeals from his first and second-degree murder and attempted murder convictions arising out of the shooting of three people during the course of a robbery. Green argues that the district court’s submission of two pattern jury instructions — CRIMJIG 4.01 (accomplice liability) and CRIMJIG 4.04 (flight raising a permissive inference of guilt) — denied him a fair trial. Green raises several other pro se arguments. We affirm.

Relationships and Roles of the Participants

On January 11, 2004, Green was spending the day with his friend, Daniel Valtier-ra, who was visiting from Seattle, Washington. While they were sleeping early in the morning of the 12th, an acquaintance of Green’s, Michael Medal-Mendoza, called Green asking to buy an ounce of methamphetamine and some ecstasy for a group of unknown women who were from out of town. Green was acquainted with Medal-Mendoza through several prior drug deals. Valtierra and Medal-Mendoza did not know each other.

Green had the ecstasy but not enough methamphetamine to fill the order so he decided to connect Medal-Mendoza with another drug dealer to make some money for himself. Green called Wayne Costilla and asked if he had an ounce of methamphetamine to sell. Costilla did not have that amount, but he was with friends, And-ria Crosby and Ron Glasgow, who did. Glasgow agreed to sell the methamphetamine to Costilla, who would sell it to Green, who would sell it to Medal-Mendoza, who would sell it to the out-of-town women.

The Drug Deal

Green and Costilla remained as the contact persons for the two groups and arranged to meet at a gas station in Saint Paul to complete the transaction. Crosby, Glasgow, and Costilla drove to the gas station and waited for a few minutes. Green called them back and told them that he, Valtierra, and Medal-Mendoza were delayed at a Perkins restaurant. Costilla changed the plan and told Green to meet them at Costilla’s house in Saint Paul.

Crosby, Glasgow, and Costilla arrived at Costilla’s house between 3:00 and 3:30 a.m. After about twenty minutes, Green arrived at Costilla’s house and went inside alone. Valtierra and Medal-Mendoza stayed in the car. Glasgow gave Green a sample of the methamphetamine and he brought it out to Medal-Mendoza. Medal-Mendoza confirmed its quality. Costilla came outside shortly thereafter and invited all three in.

While inside, Medal-Mendoza began talking on the phone to the out-of-town women and Valtierra sat on the couch next to Glasgow. Green testified that he overheard Medal-Mendoza’s conversation and realized that the out-of-town women were hesitant about the price and seemed to have found another source. Medal-Mendoza ended the conversation by telling the women that he would get them a lower price.

Green testified that he, Medal-Mendoza, and Valtierra went back out to the car and Medal-Mendoza called the women back. The women cancelled their order and Medal-Mendoza became upset. Green testified that Medal-Mendoza said he was going to buy the drugs anyway and asked Green if he would request that Glasgow either drop the price or loan him the drugs. Green acknowledged that it would be “very rare” for a drug seller to loan a stranger such a large quantity of drugs.

The Shooting

In the trial testimony, there were three versions of how the shooting took place. Crosby testified that after about thirty minutes Medal-Mendoza, Valtierra, and Green kicked open the door and “rushed through the doors like Charlie’s Angels with their guns flying.” She said she saw a gun in each person’s hand and specifically identified Green as having a black gun. She said Medal-Mendoza was the leader and that Green and Valtierra stood behind him. Crosby testified that the following conversation took place while Medal-Mendoza pointed a gun at Glasgow:

Medal-Mendoza: “Motherf* * * * *. I am going to rob you.”
Glasgow: “Motherf* * * * *, you are not going to rob me.”
Medal-Mendoza: “I will shoot you.”
Glasgow: “It looks like you are going to have to shoot me then because you sure aren’t robbing me.”

Crosby testified that Medal-Mendoza then shot Glasgow and Costilla in the head and Crosby in the leg. The three men then fled the house. Crosby testified that after being shot she fell to the floor and pretended that she was dead. A short time later someone came back inside, “nudged” her in the ribs, took her purse, and fled again.

Valtierra testified that he decided to go inside with Green and Medal-Mendoza but went in a few seconds behind them. He said, “[a]s soon as I come in, only thing I remember was, ‘shoot me.’ It was boom. I just remember Ron getting hit one time in his chest.” Valtierra said that Green brushed past him as he fled from the house as soon as the first shot was fired. Valtierra then fled as well. Valtierra also testified that neither he nor Green had a gun and that Medal-Mendoza did not tell them that he was going to rob or kill anyone.

Green testified that after going back inside, Medal-Mendoza started an argument with Glasgow. Glasgow asked Medal-Mendoza if he was crazy for asking him to loan the drugs to him and Medal-Mendoza took offense at that. Green testified that Medal-Mendoza “tried to pull a gun out on him and said, T will take your drugs.’ ” Glasgow said to Medal-Mendoza, “Shoot me. You ain’t going to rob me.” Green said Glasgow began taunting Medal-Mendoza which prompted Medal-Mendoza to start shooting. Green said he did not see if Medal-Mendoza hit anything because he immediately turned and ran out of the house after the first shot was fired. Green denied having a gun and said that he was holding a cell phone in his hands. Green said Medal-Mendoza took the drugs with him when he fled.

Police Response/Investigation

Crosby testified that after the shooters had left, she screamed for help, deadbolted the door, and called 911. When the police arrived at around 4:20 a.m. Crosby could not unlock the door so they kicked it in. An officer asked Crosby who did the shooting and she said “Two Mexicans and one mulatto.” Crosby told the police that she thought she recognized one of the suspects and she later identified Green from a picture out of her high school yearbook. Police also retrieved the surveillance tape from Perkins and observed Green, Valtierra, and Medal-Mendoza leaving about the same time that Crosby said the suspects reported that they were delayed at the restaurant.

Police determined that a total of six shots were fired in the apartment. Each of the three victims was shot twice at close range. Crosby was hit in the leg and in the chest. Glasgow was shot in the head and in the chest and died at the scene. Costilla was shot in the head and in the neck and died later at the hospital. Police later found $560 in cash in Glasgow’s pocket. Police recovered fragments from four of the six bullets that were fired in the apartment, but no bullet casings. Later forensic testing revealed that all four fragments were fired from the same .38 caliber handgun. There was no evidence or suggestion that anyone other than Medal-Mendoza fired any of the shots. The firearm was never recovered.

Green’s Flight

Green and Valtierra testified that after the shooting, they fled on foot to Green’s girlfriend’s house a few miles away. Green said he got into an argument with Medal-Mendoza over the phone about why he “messed up everything” and said he did not want to talk to Medal-Mendoza. Medal-Mendoza showed up at Green’s girlfriend’s house a short time later. Green testified that he was not sure how Medal-Mendoza found out where he was.

Valtierra went to the airport that morning, as previously planned, but there was a problem with his ticket and he could not get on the plane. The three then agreed to leave town together that morning with the intent to go to Florida or New York. Green testified that he only went along because he was afraid of Medal-Mendoza, and that he wanted Medal-Mendoza to think that he was not going to turn him in. After driving several hours the three stopped in Milwaukee and stayed in a motel. Green testified that he learned for the first time that people died in the shooting so he called a Saint Paul police officer to turn himself in because he felt he did nothing wrong. Green arranged to meet with the officer and the officer wired him some money so he could get home.

Green and Valtierra also provided testimony suggesting an alternate reason for wanting to go back to Saint Paul. They testified that they became concerned that Medal-Mendoza was going to kill them so they agreed to try to convince him to take them back. Green said that Medal-Mendoza agreed to drive back to Saint Paul after Green told him he needed to pick up some money and drugs that people owed him.

The Return Trip to Saint Paul

On the drive back, Medal-Mendoza drove at speeds of around 130 miles per hour while under the influence of alcohol and methamphetamine. He caused an accident in Elk Mound, Wisconsin, that Green thought was either a suicide attempt or an attempt at killing Green and Valtierra. The three flagged down help from the driver of a pickup, but the driver sensed that something was wrong and waved down a police officer. The officer testified that upon his arrival Green was trying to hide behind the pickup. Green denied hiding from the officer but said he was only bending over because his back hurt. Green also hid his wallet in the pickup and gave the officer his cousin’s name and date of birth as his own. Green said he did this because he wanted to turn himself in on his own and not make it look like he was caught.

Green requested medical attention, was treated, and released from the hospital a short time later. Green then called a friend who picked him up and brought him to another friend’s house in Saint Paul. Green was arrested there at around 1:00 a.m. after someone at the house tipped off the police. Green testified that his intention was to turn himself in at the prearranged time and location — 4:00 a.m. at the Saint Paul Cathedral — but that the police arrested him before he could do so. An officer acknowledged that this was the initial plan but said they decided to arrest him when they received the tip because Green had missed other appointments to turn himself in.

Jailhouse Admission

In addition to presenting this evidence at trial, the state presented testimony from Leroy DeMeules, who met Green while they were in jail together. De-Meules testified that Green asked De-Meules if he was in the same cellblock as Medal-Mendoza. DeMeules said he was and Green asked him to relay a message. DeMeules testified:

He [Green] wanted Michael to take the case, because he hadn’t been charged with any felony before. He wanted me to relay that if Michael did take it, that he would be tooken (sic) care of up in prison, if he didn’t, he would also be tooken (sic) care of.

DeMeules took this to mean that Medal-Mendoza would be rewarded if he took the blame for the murders or punished if he did not.

DeMeules also testified that Green bragged to him about the murders. He said Green seemed excited about it and told him that his role was to check the woman (Crosby) to make sure she was dead. Green told DeMeules that he kicked her in the ribs and as Green said this he made a motion with his hand like he was holding a pistol.

DeMeules relayed the message to Medal-Mendoza, who told his attorney. His attorney in turn told the prosecutor who subpoenaed DeMeules to testify. De-Meules did not receive any benefit for testifying against Green. Green denied saying this to DeMeules and speculated that DeMeules fabricated the story after reading Green’s police reports, which he kept unsecured in his jail cell.

The jury found Green guilty as charged and he was sentenced to consecutive life terms for aiding and abetting the first-degree intentional felony murder of two victims and a concurrent term of 240 months for aiding and abetting attempted murder of the third victim. Valtierra was tried separately and also convicted. In Valtierra’s appeal we rejected his arguments that he was denied a fair trial by the submission of pattern jury instructions on accomplice liability and flight. State v. Valtierra, 718 N.W.2d 425, 2006 WL 2075194 at *5-6 (Minn. July 27, 2006). Green’s first two arguments are virtually identical to those made in Valtierra.

I.

Green first argues that the district court erred in giving an unmodified version of the pattern jury instruction on accomplice liability for crimes of another. Minn.Stat. § 609.05, subd. 2 (2004); 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guidelines, Criminal, CRIMJIG 4.01 (4th ed. 1999) (amended in 2006 supplement to read “reasonably foreseeable to the defendant.”). He argues that it was error to not add the words “to appellant” after the phrase “the defendant is also guilty of any other crime the person commits while trying to commit the intended crime if that other crime was reasonably foreseeable.” The state points out that Green not only failed to object to CRIMJIG 4.01, he specifically requested it. We need not decide whether plain error applies or whether Green’s request increased his burden or constituted a waiver because we have already held on several occasions that CRIMJIG 4.01 is not erroneous. See State v. Earl, 702 N.W.2d 711, 721 (Minn.2005); State v. White, 684 N.W.2d 500, 509 (Minn.2004); State v. Peirce, 364 N.W.2d 801, 809-10 (Minn.1985). We confirmed these holdings in Valtierra.

Green argues that because in Earl we suggested that all future jury instructions include the entire statutory phrase “reasonably foreseeable to the person,” this court was implying that there may be other cases that would lead us to conclude that the instruction is erroneous. Green argues that his is that type of case because the language from the instruction was repeated to the jury three times. Green emphasizes the centrality of the instruction to his conviction and the heightened importance of correctly responding to the jury’s question during deliberations.

In Earl we suggested a modification of CRIMJIG 4.01 “[t]o avoid the necessity of dealing with this issue in the future.” 702 N.W.2d at 722. In Valtierra, we concluded that

“Earl’s suggestion to use the entire statutory phrase does not apply to this case since Valtierra’s trial was conducted before our decision in Earl, and was not, therefore, a ‘future instruction! ] on accomplice liability.’ The result here is identical to the result in Earl, which held that giving the standard instruction was not error.”

718 N.W.2d at 434, 2006 WL 2075194, at *6 (emphasis in original) (citations omitted). We continue to adhere to the position taken in Valtierra and Earl.

II.

Green also argues that the district court erred in submitting the permissive-inference instruction on flight, CRIMJIG 4.04. Over Green’s objection, the district court instructed the jury:

[I]t is for you alone to decide whether or not the defendant fled after the alleged crimes. If you determine that he did flee, then you may take such flight into consideration as an inference of guilty intention at the time of the incident giving rise to these charges. Flight, in itself, is not conclusive evidence of a guilty intent; but if you find that such flight existed, then you may consider it, along with all of the other pertinent evidence in this case, in determining whether or not the State has established that the defendant possessed the requisite intent at the time and place of the alleged crimes.

Although we approved of this instruction in State v. McLaughlin, 250 Minn. 309, 319, 84 N.W.2d 664, 671-72 (1957), in Val-tierra we concluded:

Flight instructions are a species of permissive-inference instruction, and the factors leading us to reject such instructions in [State v.] Litzau, 650 N.W.2d 177 (Minn.2002)] and [State v.] Olson[, 482 N.W.2d 212 (Minn.1992)] apply with full force to flight instructions. Cf. Litzau, 650 N.W.2d at 186 & n. 7, 187; Olson, 482 N.W.2d at 215-16. See also State v. Oates, 611 N.W.2d 580, 584 (Minn.App.2000) (“There is no need to instruct the jury that a [suspect] fleeing the scene is displaying a ‘consciousness of guilt.’ ”). Therefore, we hold that the district court erred by instructing the jury on the permissive inference that may be drawn from evidence of flight.

718 N.W.2d at 433, 2006 WL 2075194, at *5.

Thus, the only issue is whether the error in giving the permissive inference instruction was harmless. In Valtierra we held the error in giving the instruction was harmless because, unlike Olson, the flight was only peripheral to the state’s case, which was otherwise supported by Crosby’s testimony that Valtierra had a gun and by Crosby’s prior consistent statement to that effect. 718 N.W.2d at 433, 2006 WL 2075194, at *6. The state’s case against Green was even stronger. Green organized the drug deal and was the common link between the suspects and the victims. After the shooting the three met at Green’s girlfriend’s house — where Green said he lived — to discuss their getaway plans. Finally, there is evidence from the jailhouse informer that Green admitted that, after the shooting, he returned to the scene and nudged Crosby to make sure she was dead.

In Valtierra we noted that any potential harm that could have resulted from the jury unduly focusing on his flight was mitigated by the fact that Valtierra reversed his flight and returned home. Id. The potential harm caused by the instruction in Green’s trial was even further mitigated because a police officer testified that Green, on his own accord, contacted the police and made arrangements to turn himself in, and that Green was arrested in Saint Paul shortly before the prearranged meeting time.

Finally, we note that, as in Valtierra, the error in giving the flight instruction is that it is argumentative, not that it inaccurately conveys the law or improperly suggests that the jury was compelled to make the inference. For these reasons we conclude that the erroneous jury instruction was harmless.

III.

By pro se supplemental brief, Green asserts reversible error in the denial of a Batson challenge, nonsequestration of the jury during deliberations, and juror misconduct. He also challenges the sufficiency of the evidence and the credibility of a witness. Finally, he argues he was denied effective assistance of counsel.

Batson Violation

Green requests “a Batson challenge because there was racial profiling committed by the prosecutors” and the judge. Green does not provide any specifics. We interpret Green’s argument to focus on the state’s use of a peremptory challenge to remove the only black venire-member. In Burkett v. Elem, the Supreme Court summarized the Batson analysis as follows:

[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.

514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (citations omitted). “[T]he mere fact that the veniremember subject to the strike is a racial minority does not establish a prima facie case of discrimination.” Angus v. State, 695 N.W.2d 109, 117 (Minn.2005). The burden is on the moving party to identify circumstances raising an inference that the exclusion was based on race. Id. Although Green made a timely objection to the preemptory challenge, he failed to identify any circumstances raising an inference that the exclusion was based on race and he has also failed to identify such circumstances on appeal.

Jury Nonsequestration

Green argues that he is entitled to a new trial because the district court allowed the jurors to go home during deliberations. He argues his case was highly publicized and the jurors could have been swayed by their friends and family or by the media.

The record reflects that on a Friday evening, when it became apparent that the jury would need more time to deliberate, the district court asked a bailiff to secure hotel accommodations in anticipation of sequestration. Extensive efforts were made to find rooms throughout the entire metropolitan area, but nothing was available. Both the state and the defense said they preferred sequestration but neither could propose a means of accomplishing it. Before allowing the jurors to go home the court instructed them not to discuss the case with anyone and not to read newspapers, watch television, or listen to the radio. They returned the following morning and reached a verdict that day.

In State v. Anderson we said:

[M]ere separation of the jury in violation of Minn. R.Crim. P. 26.03, subd. 5, without more, does not raise a presumption of prejudice. State v. Sanders, 376 N.W.2d 196 (Minn.1985). Prejudice in such a case will be presumed only upon a showing of any private communication or contact or any other circumstance suggestive of improper influence or jury tampering, direct or indirect.

379 N.W.2d 70, 81 (Minn.1985). Green fails to identify any evidence of private communication or improper influence of the jury. Absent this evidence, and considering the district court’s exhaustive efforts to sequester the jury, we hold the court did not err in allowing the jury to return home overnight.

Juror Misconduct

Green mentions the possibility that one of the jurors could have been intoxicated during deliberations but does not explain how this affected the verdict. On the morning that the jury reached their verdict, the judge did disclose that the foreperson had conveyed to the bailiff that one of the jurors “thought she smelled alcohol” on another juror. Green requested a Schtoartz hearing based on this information but the district court denied this request.

A juror’s consumption of alcohol is not a ground for a new trial unless it is shown that the juror was thereby incapacitated or rendered unfit to discharge his duties intelligently. State v. King, 88 Minn. 175, 185, 92 N.W. 965, 969 (1903). The decision to grant or deny a Schwartz hearing to make this determination is within the discretion of the district court. Id.; State v. Durfee, 322 N.W.2d 778, 786 (Minn.1982).

The district court noted that the juror who reported the incident was not concerned about the juror being under the influence but just thought that the juror had something to drink the night before. The judge noted that she made several personal observations of the juror in question,- including her ability to walk a long distance, and had no reason to believe that she was impaired. Under these facts we conclude' the district court did not abuse its discretion.

Sufficiency of the Evidence of Underlying Felony: Robbery

Green argues that there was insufficient evidence to prove that a robbery occurred because one of the victims had $500 in his pocket when police arrived. But the evidence must be taken in the light most favorable to the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). And there was evidence that drugs were stolen from the scene and that Medal-Mendoza announced, “I am going to rob you.” This constitutes sufficient evidence that at least an attempted aggravated robbery had been committed, and this is sufficient to be guilty of first-degree intentional felony murder. :

Witness Credibility

Green argues that he is entitled to a new trial because Crosby lied in her testimony and that she was not credible because at the time of the incident she was under extreme stress and impaired by drugs and alcohol. This argument has no merit because it is within the jury’s exclusive province to assess the credibility of a witness. State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998).

Ineffective Assistance of Counsel

Finally, Green argues that he was denied effective assistance of counsel because his lawyer was afraid of the judge, did not address matters that Green asked him to address, did not adequately prepare Green for testifying, did not properly research and investigate the case, and did not properly develop Green as a human in the eyes of the jury. Because these allegations cannot be reviewed on the basis of the trial record, we decline to address them here. They are more properly raised in a petition for post conviction relief. See Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997).

Affirmed.