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This opinion will be unpublished and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
A18-0533

State of Minnesota,
Respondent,

vs.

Amy Kathleen Sparks,
Appellant

Filed February 4, 2019
Reversed and remanded; motion denied
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-1320

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Ba rts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hoote n, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from the judgment of conviction, appella nt Amy Kathleen
Sparks argues that the district court violated her right to a Blakely trial by imposing a 36-

2
month mandatory-minimum sentence under Minn. Stat. § 609.11, su bd. 5(a) (2016),
without obtaining a Blakely waiver. We deny the state’s motion to strike portions of
appellant’s reply brief. Because appellant did not waive her r ight to a jury determination
of facts necessary for the sentence imposed by the district cou rt, that sentence must be
reversed, and we remand to the district court for resentencing.
FACTS
Officers of the Minneapolis Police Department executed a search w a r r a n t a t
appellant’s home. According to the criminal complaint, officer s found 110 marijuana
plants in the basement of the home and a .32 caliber revolver, with 6 rounds of .32
ammunition, inside a case within one foot of the marijuana plan t s . T h e s t a t e c h a r g e d
appellant with second-degree and fifth-degree controlled-substa nce crimes. The state
amended its complaint, adding a sentencing enhancement under Minn. Stat. § 609.11, subd.
5(a), to both charges for posse ssing a firearm while committing t h e c h a r g e d o f f e n s e s .
Section 609.11 imposes a mandatory-minimum sentence of 36 month s in cases where the
defendant possesses or uses a firearm while committing “a felony violation of chapter 152.”
Minn. Stat. § 609.11, subd. 9 (2016).
Appellant moved to dismiss the ch arged sentencing enhancement u nder State v.
Royster, 590 N.W.2d 82 (Minn. 1999), arguing that the state had not shown probable cause
to believe that she possessed or used a firearm at the time of the offense. The district court
denied appellant’s Royster motion, finding that the constructive-possession-of-a-firearm
evidence was sufficient to proceed to trial. Appellant then pleaded guilty to the fifth-degree
controlled-substance crime in exchange for the state dismissing the second-degree charge.

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A p p e l l a n t ’ s w a s a “ s t r a i g h t p l e a , ” m e a n i n g t h a t t h e r e w a s n o a greement concerning
sentencing. But appellant acknowledged that the guidelines sentence (with the sentencing
enhancement statute) is three years in prison and that she would be requesting a downward
dispositional departure. The plea petition indicates that appellant was informed that “if a
minimum sentence is required by statute the court may impose a sentence of imprisonment
of not less than 36 months for this crime.”
The plea petition advised appellant of her right to a jury tria l on the issue of guilt,
which she waived. The petition did not contain an explicit wai ver of appellant’s right to
have a jury make findings concer ning aggravating factors or the c h a r g e d s e n t e n c i n g
enhancement for a firearm. Appellant acknowledged at the plea hearing that she was giving
up her right to a jury trial on the issue of her guilt as part of the plea agreement. But
appellant was not informed that she had a right to a jury trial for the section 609.11
sentencing enhancement.
At sentencing, the district court stated that it would have dep arted from the
guidelines but declined to do so in light of appellant’s intervening fifth-degree controlled-
substance crime—a new offense that appellant committed one week a f t e r s h e p l e a d e d
guilty in this case. The district court sentenced appellant to 36 months in prison, applying
the sentencing enhancement under section 609.11.
This appeal followed.
D E C I S I O N
Appellant argues that the distric t court violated her right to a Blakely trial when it
imposed a mandatory-minimum sentence of 36 months in prison without obtaining a valid

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Blakely waiver. The United States and Minnesota Constitutions guarante e criminal
defendants the right to a trial by jury. U.S. Const. amend. VI ; Minn. Const. Art. 1, § 6.
“Other than the fact of a prior conviction, any fact that incre ases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Blakely v. Washington , 542 U.S. 296, 301, 124 S. Ct. 2531, 2536
(2004) (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.” State v. Dettman, 719 N.W.2d 644, 647 (Minn. 2006) (quoting
Blakely, 542 U.S. at 303, 124 S. Ct. at 2537). The presumptive senten ce under the
Minnesota Sentencing Guidelines is the “statutory maximum” for Blakely purposes. State
v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).
A defendant has a constitutional right to a jury trial on a sen tencing enhancement
under Minn. Stat. § 609.11. State v. Barker, 705 N.W.2d 768, 773 (Minn. 2005). A waiver
on the issue of guilt alone cannot be interpreted as a waiver o f the right to a jury
determination of aggravating sentencing factors. Dettman, 719 N.W.2d at 654. “[A]
defendant must expressly, knowingly, voluntarily, and intelligently waive [her] right to a
jury determination of facts supporting an upward sentencing dep arture before [her]
statements at [her] guilty-plea hearing may be used to enhance [her] sentence.” Id. at 650-
51.
The state agrees with appellant that the district court erred b y departing from the
guidelines sentence without obtaining a Blakely waiver. The parties disagree on the

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appropriate remedy.1 Appellant argues that “this case must be remanded for imposition of
the presumptive one-year-and-one-day stayed guidelines sentence.” The state argues that,
on remand, the district court should empanel a sentencing jury for the section 609.11
enhancement or allow appellant to properly waive a jury trial. Appellant argues in her
reply brief that her double-jeopardy rights would be violated i f a sentencing jury were
empaneled.
Motion to Strike
After the parties submitted thei r briefing, the state moved to strike appellant’s
double-jeopardy argument from her reply brief on the grounds th at it is a new argument
that was not raised in appellant’s principal brief and exceeded the scope of respondent’s
brief. The motion was deferred to this merits panel by order of the chief judge.
It is well established that an appellate court does not conside r arguments that are
raised for the first time in a reply brief. State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009).
But a reply-brief argument is properly before the court if it r esponds to new points made
by respondent. Albert Lea Ice & Fuel Co. v. U.S. Fire Ins. Co., 58 N.W.2d 614, 619 (Minn.
1953). The reply brief must be confined to new matter raised i n the respondent’s brief.
Minn. R. Civ. App. P. 128.02, subd. 3; see Goeman v. Allstate Ins. Co., 725 N.W.2d 375,
378 (Minn. App. 2006) (an argument in reply that “offers a rebuttal of the arguments raised
by” the respondent is properly before the court, and reply briefs are “liberally construed to

1 Blakely errors are subject to a harmless-error analysis, Dettman, 719 N.W.2d at 655, but
the state expressly disclaims any argument that the error here was harmless. And we agree
that the error was not harmless.

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allow the appellant to respond to the arguments advanced by the respondent” (quotations
omitted)).
Appellant’s argument—that her double-jeopardy rights would be violated if the
district court empanels a sentencing jury on remand—is directly responsive to the state’s
argument that the district court should empanel a sentencing jury on remand. Accordingly,
appellant’s double-jeopardy argument is proper and the state’s motion to strike is denied.
Appropriate Remedy on Remand
Having determined that there was a Blakely error and having denied the state’s
motion to strike, we arrive at the real issue in this case—the appropriate remedy for the
admitted Blakely violation. Appellant argues that the district court must impo se the
presumptive sentence on remand; the state argues that the distr ict court should empanel a
sentencing jury on remand.
Appellant argues that caselaw requires that we remand with inst ructions that the
district court impose the presumptive guidelines sentence. State v. Her, 862 N.W.2d 692,
700 n.4 (Minn. 2015); Hankerson v. State , 723 N.W.2d 232 (Minn. 2006); Barker, 705
N.W.2d at 768.
I n Barker, after reversing the defendant’s Blakely-infirm sentence, the supreme
court rejected the state’s argument that it should direct the d istrict court to empanel a
sentencing jury on remand. 705 N. W.2d at 776. At that time, M innesota law did not
explicitly authorize empaneling a sentencing jury. Id. at 775-76. The supreme court has
subsequently explained that “[a] lthough we declined for comity reasons to exercise our
inherent judicial authority to authorize sentencing juries [in Barker],” the comity reasons

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no longer apply “in light of the 2005 legislation retroactively authorizing the use of juries
on resentencing.”2 State v. Chauvin , 723 N.W.2d 20, 21 (Mi nn. 2006). Consequently,
Barker does not require the district court in this case to impose the presumptive guidelines
sentence on remand because Minnesota law after 2005 provides for sentencing juries with
respect to section 609.11 sentencing enhancements. Minn. Stat. § 244.10, subd. 5 (2016).
I n Her, the supreme court held that the district court erred by impos ing a
conditional-release term of 10 ye ars based on its finding that Her was a “risk-level-III
offender at the time of his offense,” because Her had the right to have a jury make such a
determination. 862 N.W.2d at 694. The supreme court remanded the case to the district
court, but expressed no opinion concerning the appropriate reme dy on remand, because
neither party had addressed, nor did the supreme court grant re view, on that issue. Id. at
700 n.4.
In Hankerson, after being found guilty by a jury, Hankerson filed a petitio n for
postconviction relief challenging her aggravated sentence because it was based on judicial
factfinding in violation of Blakely. 723 N.W.2d at 232. The pos tconviction court denied
her request to vacate her senten ce and impose the presumptive g uidelines sentence, but
ordered a sentencing hearing in w hich it proposed to empanel a sentencing jury as
authorized by legislative amendm ents to Minn. Stat. § 244.10, s ubd. 5(a), in response to

2 Minn. Stat. § 609.11, subd. 5(a) (2004) (amended June 1, 2006, eff. Aug. 1, 2006); 2006
Minn. Laws ch. 260, art. 1, §§ 1-3, at 708-09.

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Blakely.3 Id. at 233. Hankerson argued that she was entitled to the presumptive guidelines
sentence on remand, but the Minnesota Supreme Court held that t he district court was
authorized to empanel a sentencing jury on remand. Id. at 236. The supreme court rejected
Hankerson’s double-jeopardy argument because of “the failure to show that the proposed
resentencing hearing would be a ‘second prosecution.’” Id. at 237.
The supreme court reasoned that a “second prosecution” can occ ur only after
jeopardy from the fist prosecution has terminated. Id. (citing Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S. Ct. 732, 736-37 (2003)). In Hankerson, the Minnesota Supreme
Court reiterated that, under Sattazahn, “jeopardy does not terminate unless the fact finder
affirmatively rejects the existe nce of aggravating factors in a manner than can fairly be
called an ‘acquittal’ on those factors.” Id. “[T]he Double Jeopardy Clause’s general
prohibition against successive prosecutions does not prevent the government from retrying
a defendant who succeeds in getting his first conviction set as ide.” Id. at 238 (quoting
Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 289 (1988)). In Lockhart, the Supreme
Court recognized that the only exception to this rule is where the conviction is reversed on
the grounds that the evidence was insufficient to sustain the jury’s verdict, because in such
a scenario, the evidence is so l acking that the trial court sho uld enter a judgment of
acquittal, rather than submit the case to the jury. Lockhart, 488 U.S. at 39, 109 S. Ct. at
290 (citing Burks v. United States, 437 U.S. 1, 16-17, 98 S. Ct. 2141, 2149-50 (1978)).

3 “[T]he legislature responded to Blakely by amending section 244.10, subd. 5(a), and
Minn. Sent. Guidelines II.D to pr ovide for sentencing juries an d bifurcated trials.”
Hankerson, 723 N.W.2d at 234 (citations omitted).

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Applying the reasoning of Sattazahn and Lockhart, the Minnesota Supreme Court
stated in Hankerson that double jeopardy would apply if: (a) the state in the first trial had
not sought an aggravated sentence or the district court had “acquitted” the defendant of the
aggravating factors; or (b) if the state had presented insuffic ient evidence to support the
district court’s adoption of the aggravating factors in the first trial, in which case the Burks
exception might preclude considera tion of the aggravated senten cing factors on
resentencing. Hankerson, 723 N.W.2d at 238-39; see also Burks, 437 U.S. at 18, 98 S. Ct.
at 2150-51 (recognizing exception to general rule—that the Double Jeopardy Clause does
not bar the retrial of a defendant who has succeeded in getting a conviction set aside for
error in proceedings below—and hol ding that when a defendant’s conviction is reversed
by an appellate court on the sole ground that the evidence was insufficient to sustain the
jury’s verdict, the Double Jeopardy Clause bars a retrial on the same charge).
Appellant argues that the Double Jeopardy Clause prevents empaneling a sentencing
jury because the evidence was insufficient to support the basis for appellant’s sentence. To
the contrary, before appellant pleaded guilty, the district court found that the evidence was
sufficient to establish probable cause supporting a constructiv e-possession-of-a-firearm
sentencing enhancement under s ection 609.11. The insufficient- evidence exception that
invokes double jeopardy applies where the evidence was insufficient to sustain the jury’s
verdict. Lockhart, 488 U.S. at 39, 109 S. Ct. at 291. Even though the district court did not
find the aggravating factors beyond a reasonable doubt as required by Blakely, the district
court’s adoption of the aggravating factors under a lesser standard of proof is not equivalent
to an “acquittal” on those factors for double-jeopardy purposes. Hankerson, 723 N.W.2d

10
at 239. We do not reverse appellant’s sentence on grounds that the evidence is insufficient
or was affirmatively rejected by the trier of fact. We reverse appellant’s enhanced sentence
because she did not waive her right to a Blakely trial on the facts that support an enhanced
sentence.
After Hankerson, we have affirmed the district court’s authority to empanel a
resentencing jury in factual scenarios similar to the one here, where the district court’s
aggravated sentence violates the rule in Blakely. See State v. Spraggins, 742 N.W.2d 1, 6
(Minn. App. 2007) (“the use of sentencing juries has now been r ecognized as proper, and
the district court may use such a procedure on remand in this case.”). Likewise, in State v.
Jones, the supreme court held that Jones was entitled to a jury dete rmination of the facts
that would justify an enhanced sentence, and therefore reversed the enhanced sentence and
remanded for sentencing where “the district court may impose the presumptive guidelines
sentence or, unless waived by Jones, empanel a resentencing jury.” 745 N.W.2d 845, 851
(Minn. 2008). Ultimately, a defendant “can hardly complain tha t she is still in jeopardy”
when she is the one who requests the sentence be vacated. Hankerson, 723 N.W.2d at 239.
The district court may empanel a resentencing jury on remand without violating appellant’s
double-jeopardy rights.
Appellant also argues that we must remand the case to the distr ict court with
instructions to impose the presumptive guidelines sentence beca use the district court did
not make the necessary Royster findings to support the upward departure under Minn. Stat.
§ 609.11, subd. 5(a).

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I n Royster, the Minnesota Supreme Court held that constructive possession o f a
firearm can be sufficient to trigger the sentencing enhancement under Minn. Stat. § 609.11,
subd. 5. 590 N.W.2d 82 (Minn. 1999). In determining whether the constructive possession
of a firearm triggers the mandatory minimum sentence under § 609.11, the supreme court
stated that it is reasonable to examine all aspects of the fire arm possession to determine
whether it was reasonable to conclude that its presence increas ed the risk of violence and
to what degree the risk is increased. Id. The supreme court stated that the considerations
include, “the nature, type and co ndition of the firearm, its ow nership, whether it was
loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and
whether the nature of the predi cate offense is frequently or ty pically accompanied by use
of a firearm.” Id.
Appellant argues that, because the district court did not make these findings on the
record before she was sentenced, remand to the district court f or another opportunity to
state the reasons for departure is improper. Appellant cites State v. Geller, which held that
“absent a statement of the reasons for the sentencing departure placed on the record at the
time of sentencing, no departure will be allowed.” 665 N.W.2d 514, 517 (Minn. 2003)
(affirming rule from Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985)).
Appellant’s reliance on Geller is misplaced. Appellant pleaded guilty to the fifth-
degree controlled-substance crime, with the section 609.11 sent encing enhancement
charged (notwithstanding the fact that the state did not obtain a proper jury waiver). As
charged, the enhanced fifth-degree controlled-substance crime carries a minimum sentence
of 36 months’ imprisonment. The district court sentenced appel lant to 36 months’

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imprisonment. Therefore, as the district court correctly noted in the warrant of
commitment, the district court im posed the mandatory 36-month i mprisonment based on
the presence of a firearm. The infirmity in the process was that appellant neither admitted
nor waived a jury regarding the firearm enhancement, but the di strict court treated her
guilty plea as one including the enhancement. That oversight b y the district court cannot
now give appellant the legal wi ndfall of avoiding entirely the possibility of the firearm-
enhanced sentence.
Effect on Plea Agreement
The state argues that remanding with instructions that the dis trict court impose the
presumptive sentence without empaneling a sentencing jury would violate the
understanding made at the time of the plea. The state contends that, while there was no
agreement on sentence, the state dismissed the charge for a sec ond-degree controlled-
substance crime and appellant “agreed to plead guilty to the fi fth-degree charge with the
609.11 enhancement.”
In State v. Misquadace, the Minnesota Supreme Court held that an upward departure
in a criminal sentence cannot be based solely on a plea agreeme nt. 644 N.W.2d 65, 71
(Minn. 2002). In State v. Lewis , the Minnesota Supreme Court held that, if the district
court finds that the sentence agreed upon in a plea bargain mus t be materially reduced, it
may reconsider the entire plea agreement because the conviction and sentence components
of a plea are interrelated. 656 N.W.2d 535, 538-39 (Minn. 2003). Here, the parties did not
agree on a sentence, but the state made clear that it was seeki ng a section 609.11
enhancement and the district court denied appellant’s motion to remove the section 609.11

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enhancement from the complaint. When asked if “you understand the existence of the
section 609.11 qualifier, along with this charge here, does presume a 36-month commit to
the Commissioner of Corrections,” appellant responded affirmatively.
We therefore reverse appellant’s sentence and remand to the di strict court for
resentencing. On remand, the district court may impose the pre sumptive guidelines
sentence, empanel a sentencing jury, or obtain appellant’s express waiver of a sentencing
jury.
Reversed and remanded; motion denied.