State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1755

State of Minnesota,
Respondent,

vs.

Christopher Rayshawn Calloway,
Appellant.

Filed March 4, 2019
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62-CR-16-6907

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorne y , T h o m a s R . R a g a t z , A s s i s t a n t County Attorney,
St. Paul, Minnesota (for respondent)

Bradford Colbert, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Christopher Rayshawn Calloway appeals from his convi ctions for first-
degree aggravated robbery and se cond-degree felony murder, argu ing that the upward-

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durational sentencing departure on the felony-murder conviction must be vacated because
he did not validly waive his right to a jury determination of f acts supporting the upward
sentencing departure as required by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), and because the district court failed to state on the record at the time of sentencing
the factors supporting the upward sentencing departure. We affirm.
FACTS
Appellant shot and killed S.B. after making an agreement with h is ex-girlfriend to
rob S.B. The state charged app ellant with aiding and abetting second-degree intentional
murder, aiding and abetting second-degree felony murder (charged as causing the death of
a person while committing an unspecified felony), and aiding an d abetting first-degree
aggravated robbery. The state separately charged appellant wit h criminal damage to
property for an offense alleged to have occurred while appellant was in jail.
Appellant reached a plea agreement with the state that called for appellant to plead
guilty to the second-degree felony murder and aggravated robbery charges in exchange for
the state’s dismissal of the cha rges of second-degree intention al murder and criminal
damage to property. The plea agreement also contained a joint sentencing recommendation
of a 129-month sentence for aggravated robbery and a 231-month sentence for second-
degree murder—which included an upward durational departure of 51 months.1 Appellant
agreed that the sentences would be consecutive.

1 The plea agreement called for appellant to be sentenced first on the aggravated-robbery
offense and then on the second-degree felony-murder offense.

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At the guilty-plea hearing, appellant acknowledged that he understood the terms of
the plea agreement, and that he would receive a total sentence of 360 months. He waived
his right to a Blakely trial on aggravating factors. D uring his plea testimony, appe llant
admitted to facts to support the upward departure. Appellant p leaded guilty to both
offenses. The district court accepted his guilty pleas and found him guilty of both offenses.
At sentencing, and before the district court imposed sentence, t h e p r o s e c u t o r
expressed a desire to make “the record . . . very clear” concerning the plea agreement. The
prosecutor clarified that the rea sons for the upward departure were S.B.’s young age, the
fact that there were three or more people who participated in committing the offense, S.B.’s
particular vulnerability because she had been sleeping, and Min n. Stat. § 609.1095, subd.
4 (2016). 2 The district court heard multip le victim-impact statements an d argument
concerning sentencing from both attorneys. It then imposed sentence.
The district court stated that it was sentencing in conformity with the plea agreement
and departing upward “pursuant to the plea agreement and based on the factors set forth in
law.” For the aggravated robbery offense, the district court i mposed a 132-month prison
term, adding a 3-month enhancement because appellant was on sup ervised release at the

2 Minn. Stat. § 609.1095, subd. 4, allows for increased sentences for certain dangerous and
repeat felony offenders. The statute provides that when a pers on is convicted of a felony
and the judge is imposing an execu ted sentence based on a presu mptive guidelines
sentence, “the judge may impose an aggravated durational departure from the presumptive
sentence up to the statutory maximum sentence if the factfinder determines that the
offender has five or more prior felony convictions and that the present offense is a felony
that was committed as part of a pattern of criminal conduct.” Minn. Stat. § 609.1095, subd.
4.

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time of the offense. For the se cond-degree murder offense, the district court imposed a
180-month sentence, which include d an upward durational departu re of 48 months, a
3-month reduction from the agreed-upon 51-month departure, to a ccount for the
enhancement that had been added to the aggravated-robbery sente nce. The overall
sentence was as the parties had agreed.
Following the sentencing hearing, the district court filed a ti mely departure report,
indicating its reasons for departing as: “[v]ictim was a minor at the time of offense; victim
was particularly vulnerable, being asleep and enclosed in a car ; crime was committed as
part of a group of three or more persons actively participating.” The departure report also
referred to Minn. Stat. § 609.1095, subd. 4, noting that appell ant “has eight prior felony
convictions.” These were the f actors identified by the prosecu tor at the beginning of the
sentencing hearing as the reasons for the agreed-upon departure.
This appeal followed.
D E C I S I O N
I. Appellant validly waived his Blakely right to a jury determination of facts
supporting an upward sentencing departure by acknowledging that h e
understood the rights he was waiving and admitting sufficient facts to support
the departure.

Appellant argues that his Blakely waiver was invalid because he did not “expressly,
knowingly, voluntarily, and in telligently waive his right to a jury determination of facts
supporting an upward sentencing departure.” Appellate courts r eview the validity of a
Blakely-hearing waiver de novo. State v. Dettman, 719 N.W.2d 644, 648-49 (Minn. 2006).

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Both the United States and Minnesota Constitutions guarantee criminal defendants
the right to a trial by jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. “Other than the
fact of a prior conviction, any f act that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)).
“Blakely reformulated the definition of ‘statutory maximum’ as the maxim um
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant .” Dettman, 719 N.W.2d at 647 (quotation omitted). The
presumptive sentence under the Mi nnesota Sentencing Guidelines is the “statutory
maximum” for Blakely purposes. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).
A “verdict or guilty plea alone d oes not authorize [an] enhance d sentence,” but Blakely
“permits a defendant to either stipulate to relevant facts or c onsent to judicial factfinding
regarding sentencing factors.” Id. at 141-42. “[A] defendant m ust 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.” Dettman, 719 N.W.2d at 650-51.
Minn. R. Crim. P. 26.01, subd. 1(2)(a), applies to waivers of the right to a jury trial
on the elements of the offense and provides that a defendant “may waive a jury trial on the
issue of guilt provided the defendant does so personally, in writing or on the record in open
court, after being advised by the court of the right to trial by jury, and after having had an

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opportunity to consult with counsel.” Minn. R. Crim. P. 26.01, subd. 1(2)(b), reads
similarly and applies to waivers of the right to a sentencing j ury when an aggravated
sentence is sought. A waiver that complies with Minn. R. Crim. P. 26.01, subd. 1(2)(a),
“meets the knowing, voluntary, and intellig ent requirement.” State v. Thompson , 720
N.W.2d 820, 827 (Minn. 2006).
Appellant argues that his Blakely waiver was not made expressly, knowingly,
voluntarily, and intelligently and was invalid because the dist rict court did not strictly
comply with Minn. R. Crim. P. 15.01, subd. 2, when obtaining his waiver.
The plea hearing transcript establishes that appellant’s Blakely waiver was valid.
Although the district court did not go through each line of the template in Minn. R. Crim.
P. 15.01, subd. 2, during the pl ea hearing, appellant was repea tedly reminded, and he
acknowledged, that he was waiving both his right to a jury trial on the question of guilt and
his Blakely jury-trial right. Appellant’s signed plea petition expressly provides that
appellant waived his rights under Blakely. Moreover, appellant expressly agreed under
oath during the plea colloquy to the upward departure of 51 months on the second-degree
felony-murder offense as part of a package agreement.
Appellant agreed that he and his attorney had discussed “what a Blakely waiver is.”
He also acknowledged that he had a right to have the jury or th e fact-finder “find all
aggravating factors that the state may seek to use to enhance [ his] sentence before [he]
could actually have that conseque nce where [he’s] looking at a departure upward.”
Appellant’s attorney questioned appellant as follows:

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By waiving your right to that hearing you’re also waiving, in
essence, another part of the jury trial. We could have two trials
in one really. We’d have a trial to see whether or not you’re
guilty, and then if you’re found guilty the next part of that trial
or mini-trial is whether or not the State has proven their factors
to show that they can sentence you beyond the guidelines of
309 months?

Appellant again answered that he understood. Appellant’s Blakely waiver was knowing,
voluntary, and intelligent.
Appellant further argues that his Blakely waiver was invalid because he did not
admit sufficient facts authorizing an upward departure and that it is “not even clear what
facts were used to justify the departure.” This is a challenge to the accuracy of the Blakely
waiver.
The record is clear that the state, appellant, and the district court understood that the
reasons supporting the upward departure were: (1) S.B. was a m inor at the time of the
offense, (2) S.B. was particularly vulnerable at the time of th e offense since she had been
sleeping, (3) the crime was committed as part of a group of thr ee or more people, and
(4) Minn. Stat. § 609.1095, subd. 4, could be applicable to his sentence.
During the plea hearing, appellant testified in detail about th e events leading up to
S.B.’s death and admitted to fac ts sufficient to support the up ward departure. Appellant
testified that, on the night of S.B.’s death, he agreed to help his ex-girlfriend fake a robbery.
Appellant admitted that two other men, D.B. and V.H., helped him carry out this plan, and
that D.B. “had a gun and [V.H.] had a gun” and he “needed them to participate, because
they were gonna be the muscle.” Appellant further testified th at he got into a car, hit one

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of the women in the car with a gun, and saw a person, later ide ntified as S.B., sleeping in
the backseat. Appellant admitted that S.B. had been asleep at the beginning of the robbery.
When he heard D.B. fire a shot, appellant almost immediately al so fired behind him. He
agreed that S.B. was hit by his shot and died from the gunshot. These facts are sufficient
to support the bases for the agree-upon upward departure, makin g appellant’s waiver
accurate.
II. Although the district court’s statement of its reasons for departing could have
been clearer, it reasonably adopted the expressly stated and agreed-upon bases
for departing from the guidelines identified by the state at the beginning of the
sentencing hearing, which were then included in the district court’s departure
report.

Appellant argues that the district court erred as a matter of l aw by not expressly
stating the reasons for imposing the upward departure on the re cord at the time of
sentencing. Questions of law are reviewed de novo. State v. Misquadace, 644 N.W.2d 65,
68 (Minn. 2002).
If a district court departs from the sentencing guidelines, it must make findings of
fact supporting the departure and the grounds for departure must be stated in the sentencing
order or recorded in a departure report. Minn. R. Crim. P. 27. 03, subd. 4(C). A district
court is required to state its r easons for departure at the tim e of sentencing so that the
defendant has “an opportunity to evaluate and prepare an appeal and to provide for
meaningful review.” State v. Peterson, 405 N.W.2d 545, 547 (Minn. App. 1987).
In Williams v. State , the Minnesota Supreme Court, to ensure future compliance
with sentencing departures, adopted a clear rule stating that “ [i]f no reasons for departure

9
are stated on the record at the time of sentencing, no departur e will be allowed.” 361
N.W.2d 840, 844 (Minn. 1985). In State v. Geller , the supreme court reaffirmed the
requirement that the sentencing court must state the reasons for departure on the record at
the time of sentencing. 665 N.W.2d 514, 517 (Minn. 2003). The re, the supreme court
concluded that, because the dis trict court had not stated its r easons for departing on the
record at the time of sentencing, it was error for this court to remand to the district court to
allow reasons for the departure to be given after sentencing had occurred. Id. Instead, the
supreme court remanded to the dis trict court with instructions to impose the presumptive
guidelines sentence. Id. Later, in State v. Rannow, and relying on Geller, we remanded to
the district court for imposition of the presumptive sentence w here the district court
departed upward based on a plea agreement and the district court did not provide so, orally
or in writing, any reason for the sentencing departure. 703 N.W.2d 575, 579 (Minn. App.
2005). The supreme court has explained that an upward departure from the guidelines must
be supported by both a recognized aggravating factor (the reaso n for departure) and facts
providing a substantial and comp elling basis for the departure. State v. Rourke , 773
N.W.2d 913, 920 (Minn. 2009).
Appellant argues that, under these authorities, the district court did not sufficiently
provide the reasons for departing from the sentencing guidelines, and therefore the upward
departure must be vacated and the case remanded to the district court for imposition of a
presumptive guidelines sentence.

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At the outset of the sentencing hearing, the prosecutor explain ed that the state
wanted to make the record “very clear” that
the reasons for the departure are the aggravating factors that
exist, including the young age of the victim, the fact that there
were three or more persons that were part of the commission
of the offense, and the particular vulnerability of the victim as
she was sleeping at the time of the offense.

The state also noted that “pursuant to 609.1095, subdivision 4, [appellant] does have eight
prior felony convictions. So there are plenty of bases by which the court can upward depart
in this case.” The district court then again clarified the grounds for departure with both the
state and appellant’s trial counsel.
3

3 In support of their arguments, both the state and appellant cite to unpublished opinions of
this court, each of which rely on Williams and Geller. The facts of each of those cases are
significantly different than this case.
Appellant cites to State v. Barnard , No. A17-0116, 2017 WL 5559905, at *1, 3 (Minn.
App. Nov. 20, 2017), review denied (Minn. Jan. 24, 2018). In Barnard, the district court
did not provide any departure grounds on the record at the time of sentencing, and the only
reference to the grounds for a departure had been recited at an earlier plea hearing and were
not again referenced at sentencing. Id. at *1.
The state cites to State v. Bennett, No. A11-1009, 2013 WL 599128, at *1, 8-9 (Minn. App.
Feb. 19, 2013), review denied (Minn. Apr. 30, 2013). There, Bennett argued that “the
district court failed to make specific findings on the aggravat ing factors.” Id. at *9. At
sentencing, the district court stated that it was imposing its sentence “by reason of the
agreement on the Blakely factors.” Id. at *9. We concluded that, because the record plainly
disclosed the aggravating factors to which Bennett admitted, th e district court’s adoption
of the agreed-upon factors was a sufficient finding and recitation of those factors. Id.
Here, the district court did not expressly refer to the parties ’ “agreement on the Blakely
factors.” Instead, it indicated that it was departing from the guidelines “pursuant to the
plea agreement and based on the factors set forth in law.” This case is an exemplar of why
this court issues unpublished opin ions and why such opinions ar e not precedential. See
Minn. Stat. § 480A.08, subd. 3(b) (2018) (limiting “officially published” opinions to

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The district court pronounced appellant’s sentence at the end o f the more-than-30-
minute-long hearing and following four victim-impact statements. The district court stated
that it was departing “pursuant to the plea agreement and based on the factors set forth in
law.” This statement clearly ref ers back to the agreed-upon ba ses for departure from the
guidelines identified at the outset of the sentencing hearing. The district court also filed a
timely departure report, indicati ng that it had departed upward because the victim was a
minor at the time of the offense, was particularly vulnerable, and the crime was committed
by three or more people. The report also referenced Minn. Stat. § 609.1095, subd. 4. These
are the same factors identified at the sentencing hearing. App ellant’s plea colloquy
established sufficient facts supporting the agreed-upon reasons for departure. Cf. Rourke,
773 N.W.2d at 920.
The district court’s reasons for imposing the departure certain ly could have been
expressed more clearly. Nevertheless, the district court did m ake a clear reference to the
prosecutor’s earlier statement concerning the reasons for the a greed-upon departure. The
departure was part of a detailed plea agreement. At no point d uring the proceedings did

certain parameters and providing that opinions not so published “must not be cited as
precedent”). In this case, just as in Barnard and Bennett, we apply well-established law to
the facts of the individual case. Of course, the facts of each case are different. Our
unpublished opinions applying settled law are not precedential precisely because the facts
to which the law is applied differ from case to case. Our func tion is to correct errors, not
to make law. State v. McCormick, 835 N.W.2d 498, 510 (Minn. App. 2013) (explaining
that, as an error-correcting court, our role is to find the law, to state it, and to apply it to the
facts, and only when there are no statutory or judicial precede nts will we make new law),
review denied (Minn. Oct. 15, 2013).

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appellant object to or express an y uncertainty concerning those reasons, and the record
indicates that the parties and counsel all well understood the reasons for the departure. This
is not a case where “no reasons for departure are stated on the record at the time of
sentencing.” Williams, 361 N.W.2d at 844. Although the district court’s explanation was
imperfect, it reasonably adopted the prosecutor’s earlier ident ification of the bases for
departure. Williams and Geller do not require reversal where the district court has
identified its bases for departing. It did so sufficiently here.
Moreover, although the departure report alone would not be a su fficient statement
of the reasons for departure, here the departure report include s the earlier-mentioned
reasons for departure and therefore further supports our interpretation of the district court’s
statement at sentencing. The district court adequately stated its reasons for departing from
the sentencing guidelines.
In sum, because appellant validly waived his Blakely rights and because the district
court’s statement of its reasons for departing were sufficient, the district court properly
sentenced appellant to the upward durational departure.4
Affirmed.

4 In response to appellant’s proposed remedy on remand, the stat e argues that appellant
would not be entitled to a presu mptive guidelines sentence on r emand. The state argues
that, because the plea agreement was part of a package deal, where the state dismissed the
intentional second-degree murder offense (based on his criminal history score of six or
more, the presumptive sentence range is 360 to 480 months), the state should have the
opportunity on remand to withdr aw from the plea agreement. Whi le it appears that
appellant received a substantial benefit under the plea agreement, because we conclude that
the district court did not reversibly err under either Williams or Geller, we do not reach the
state’s alternative argument.