State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0306

State of Minnesota,
Respondent,

vs.

Jameson Damarus Smith,
Appellant.

Filed January 16, 2018
Affirmed
Smith, Tracy M., Judge

Steele County District Court
File No. 74-CR-16-628

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Charles F. Clippert, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pres iding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jameson Smith argues that hi s aggravated sentence for aiding and
abetting first-degree assault must be reversed because (1) the state did not make a motion
for an aggravated departure and (2) the district court failed to give him notice that it was

2
considering an aggravated departure, violating a statute and a rule of criminal procedure.
Because we conclude that neither the statute nor the rule was violated, we affirm.
FACTS
On July 10, 2015, Smith and three of hi s acquaintances picked up the victim and
drove him to a cornfield, where he was st abbed 107 times and ab andoned. Smith was
subsequently charged with conspiracy to commit first-degree murder and aiding and
abetting first-degree assault. On September 14, 2016, Smith pleaded guilty to aiding and
abetting first-degree assault and stipulated to two aggravating sentencing factors: (1) that
he committed the assault as part of a group of three or more people and (2) that the victim
was treated with particular cruelty. In exchange, the state agreed to dismiss the conspiracy
charge. There was no agreem ent as to a sentence or whether a sentencing-guidelines
departure was appropriate. Upon accepting the plea, the district court informed Smith that,
“if you agree to the aggravating factors, it permits the state to seek a greater sentence than
would be the presumptively proper sentence under the Minnesota Sentencing Guidelines.”
A sentencing hearing was held on Novemb er 28. The state argued for a 103-month
sentence, which represented the top of th e presumptive range of 74 to 103 months’
imprisonment under the sentencing guidelines. Smith argued for a probationary sentence,
which represented a downward dispositional depa rture. After the parties concluded their
arguments, the district court rejected Sm ith’s request for a do wnward dispositional
departure and sua sponte concluded that the aggravating factors that Smith had admitted

3
warranted an upward durational departure. The court sentenced Smith to 118 months in
prison.
Smith appeals.
D E C I S I O N
Smith argues that his sentence must be reversed because it violated Minn. Stat.
§ 244.10 (2016) and Minn. R. Crim. P. 27.03. 1 We review the interpretation of statutes
and the rules of criminal procedure de novo. State v. Houx, 709 N.W.2d 280, 281 (Minn.
App. 2006).
I. The district court did not err in im posing an aggravated departure without a
motion by the state.

Smith argues that Minn. Stat. § 244.10 precluded the district court from imposing
an aggravated sentence because the state did not move for a departure. Minn. Stat. § 244.10
sets out the following procedural requirements for aggravated sentences:
Subdivision 1. Sentencing hearing. Whenever a
person is convicted of a felony, the court, upon motion of either
the defendant or the state, shall hold a sentencing hearing. . . .
At the conclusion of the sentenci ng hearing or within 20 days
thereafter, the court shall issu e written findings of fact and
conclusions of law regarding the issues submitted by the
parties, and shall enter an appropriate order.

Subd. 2. Deviation from guidelines. Whether or not a
sentencing hearing is requested pu rsuant to subdivision 1, the
district court shall make writte n findings of fact as to the
reasons for departure from the Se ntencing Guidelines in each

1 We note that Smith does not argue that he was denied due process because the state did
not give him notice that it was seeking an aggravated sentence (it was not seeking such a
sentence), and, regardless, Smith had notice at the time the district court accepted his plea
that admitting the aggravating fa ctors “permits the state to se ek a greater sentence than
would be the presumptively proper sentence under the Minnesota Sentencing Guidelines.”

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case in which the court impose s or stays a sentence that
deviates from the Sentencing Guidelines applicable to the case.

. . . .

Subd. 4. Aggravated departures. In bringing a
motion for an aggravated senten ce, the state is not limited to
factors specified in the Senten cing Guidelines provided the
state provides reasonable notice to the defendant and the
district court prior to senten cing of the factors on which the
state intends to rely.

Subd. 5. Procedures in cases where state intends to
seek an aggravated departure. (a) When the prosecutor
provides reasonable notice under subdivision 4, the district
court shall allow the state to prove beyond a reasonable doubt
to a jury of 12 members the fact ors in support of the state’s
request for an aggravated departure from the Sentencing
Guidelines or the state’s request for an aggravated sentence
under any sentencing enhancement statute or the state’s request
for a mandatory minimum under section 609.11 as provided in
paragraph (b) or (c).

. . . .

Subd. 7. Waiver of jury determination. The
defendant may waive the right to a jury determination of
whether facts exist that would ju stify an aggravated sentence.
Upon receipt of a waiver of a jury trial on this issue, the district
court shall determine beyond a reasonable doubt whether the
factors in support of the st ate’s motion for aggravated
departure or an aggravated se ntence under any sentencing
enhancement statute or a mandatory minimum sentence under
section 609.11 exist.

Smith argues that these sentencing provisio ns limit a district court’s authority to
impose an aggravated sentence to cases where the state has moved fo r such a sentence.
This is so, according to Smith, because Minn. Stat. § 244.10, subd. 1, requires a sentencing
hearing “upon motion of . . . the state,” and because Minn. Stat. § 244.10, subd. 7, requires

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the district court to “determine beyond a reasonable doubt whether the factors in support
of the state’s motion for aggravated departure exist.” (Emphasis added.) Smith also
analogizes to mandatory-minimum sentencing laws, arguing that, just as the legislature has
limited district courts’ authority to impose a mitigated departure, Minn. Stat. § 244.10
limits district courts’ ability to impose an aggravated departure.
We reject Smith’s argument. Nothing in Minn. Stat. § 244.10 limits the district
court’s ability to impose an aggravated sent ence, even though the state did not move for
one, when the aggravated sent ence was supported by factual findings that were admitted
by Smith and found by the distri ct court at the plea hearing. Subdivision 1 of the statute
requires a district court to hold a sentenci ng hearing upon a motion by the state or
defendant, but there is nothing indicating the court cannot choose to hold a sentencing
hearing, even when none is requested by the parties. And although subdivisions 4, 5, and
7 address procedural requirements when the state does seek an aggravated sentence, they
do not indicate in any way that courts ar e prohibited from considering aggravated
departures sua sponte when the defendant has admitted to, and the district court has found,
aggravating factors. We therefore conclude that the district court did not err in imposing
an aggravated sentence despite the lack of a motion on the part of the state to do so.
II. The district court did not err in imposi ng an aggravated departure despite not
providing Smith notice afte r the plea hearing that it was considering such a
departure.

Smith also argues that the Minnesota Rule s of Criminal Procedure required the
district court to give him no tice that the court was consider ing an aggravat ed sentence

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before imposing such a sentence. Minn R. Crim. P. 27.03, subd. 1(B), sets out procedural
requirements for felony sentencing:
(2) Within the same three days [of a plea . . . of guilty], the
court must:
(a) order completion of a sentencing guidelines
worksheet;
(b) set a date for sentencing;

. . . .

(3) If the court intends to cons ider a mitigated departure from
the sentencing guidelines, the cour t must advise the parties.
This notice may be given when the presentence investigation
is completed or when the pr esentence investigation is
forwarded to the parties.

Additionally, “If the court is considering a departure from the sentencing guidelines, and
no contested sentencing hearing was held, and no notice was gi ven to the parties that the
court was considering a departure, the court must allow either party to request a sentencing
hearing.” Id., subd. 4(D).
Smith argues that rule 27.03 “requires both a sentencing hearing and notice.”
Additionally, Smith notes that this court has prev iously held that “[t] he rules of criminal
procedure are clear; the court must give no tice when considering a departure from the
sentencing guidelines. Minn. R. Crim . P. 27.03, subd. 1(A)(4), (C).” State v. Brennan ,
674 N.W.2d 200, 208 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004).
We are unpersuaded by Smith’s arguments. With respect to whether Minn. R. Crim.
P. 27.03 requires a hearing and notice, subdivis ion 4 of that rule requires a court to allow
the parties to request a sentencing hearing only when (1) the court is considering an upward
departure, (2) no contested sentencing hearing was held, and (3) the court had not

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previously given the parties notice that it was considering an upward departure. Minn. R.
Crim. P. 27.03, subd. 4(D). In this case, Smith concedes that there was a sentencing
hearing. Therefore Minn. R. Crim. P. 27.03 cannot serve as a basis for relief.
Brennan does not compel a contrary result. At the time Brennan was decided, the
Minnesota Rules of Criminal Procedure required a district court to notify the parties if the
court was considering an aggravated departure. See Minn. R. Crim. P. 27.03, subd.
1(A)(4), (C) (2002) (requiring notice when the district court considers any sentencing
guidelines departure). This was before the United States Supreme Court decided Blakely
v. Washington, holding that defendants are entitled to a jury trial to determine whether the
state has proved beyond a reasonable doubt the existence of aggravating factors. 542 U.S.
296, 313-14, 124 S. Ct. 2531, 2542-43 (2004). Minn. R. Crim. P. 27.03 has since been
amended to remove the notice requirement fo r aggravated departures, and now requires
notice only for mitigated departures. See Minn. R. Crim. P. 27.03, subd. 1(B)(3) (2016)
(requiring notice when the district court considers a downward sentencing guidelines
departure). The district court therefore di d not err in imposing an aggravated sentence
without first providing Smith notice that it was considerin g doing so after Smith had
waived his right to a Blakely trial and admitted to two aggravating factors.
Affirmed.