Tevin Marcel Bellaphant, Appellant,

This opinion will be unpublished and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
A19-1597

Tevin Marcel Bellaphant,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 22, 2020
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-16-7019

Cathryn Middlebrook, Chief Appellate Public Defender, Michael J. McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Slieter ,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant seeks review of an order denying his petition for postconviction relief ,
arguing that the postconviction court erred when it concluded that appellant validly waived
2
his right to a jury determination of aggravating factors the district court used to impose a
sentence that was an upward durational departure under the Minnesota Sentencing
Guidelines. Appellant seeks reversal of his sentence and a remand for resentencing within
the guidelines. Because we conclude that appellant validly waived his rights, we affirm.
FACTS
The state charged appellant Tevin Marcel Bellaphant with attempted second-degree
murder under Minn. Stat. § 609.19 subd. 1(1) (2016) with reference to Minn. Stat.
§ 609.17, subd. 1 (2016) (count one), and two counts of ineligible possession of
ammunition or a firearm under Minn. Stat. § 624.713, subd. 1(2) (2016) (counts two and
three). The state later amended the complain t and added second-degree assault with a
dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2016) (count four).
Bellaphant and the state reached a plea agreement, which provided that Bellaphant
would plead guilty to count four, second-degree assault, and the state would dismiss the
remaining three counts. Bellaphant and the state also agreed to ask the district court to
impose the statutory maximum, an executed sentence of 84 months based on aggravating
factors.
At a hearing on March 13, 2017, Bellaphant submitted a written plea petition. After
orally waivi ng his trial rights, Bellaphant pleaded guilty to count four, second-degree
assault. Bellaphant also submitted a second written petition waiving his right to have a jury
determine whether aggravating factors were present for use at sentencing. We will call the
second petition a “ Blakely waiver,” based on Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004).
3
Also at the March 13 plea hearing, Bellaphant’s attorney asked him questions about
his written Blakely waiver. Bellaphant agreed he had reviewed the Blakely waiver “[l]ine
by line” with his attorney, understood it, and had signed it. Bellaphant also agreed he
understood that he had the right to present a complete defense on any aggravating factors
before sentencing, he understood his rights to a sentencing trial, and he wanted to give up
those rights and be sentenced to an executed term of 84 months because aggravating factors
were present. The district court asked Bellaphant if he understood that, without a waiver,
“[y]ou’d have to make the state prove that there were in fact aggravating factors. And [the
prosecutor] could do that or she would attempt to do that.” Bellaphant responded, “Yeah,
she would attempt to do it, yeah.” Bellaphant agreed that he understood the state would not
need to prove any aggravating factors if he waived his right to a sentencing trial.
Bellaphant testified that, on September 26, 2016, he was in a white sport utility
vehicle (SUV) parked roughly “40 yards away” from the victim; he exited the SUV, armed
with a loaded nine -millimeter handgun , and walked toward the victim. Bellaphant next
testified that he “got to shooting,” firing “probably ten, fifteen times.” Bellaphant admitted
that he reloaded the gun and continued to shoot. Bellaphant testified that he shot at the
victim “to scare” him. Bellaphant agreed that the incident occurred outside his uncle’s
home in a residential neighborhood near a school. And Bellaphant agreed that his gunfire
hit vehicles parked nearby. When asked whether the number of shots fired and the
proximity of the incident to a school made this offense more serious than the typical assault
offense and justified an upward departure in his sentence, Bellaphant responded, “Yeah, I
guess, yeah.”
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The district court found that Bellaphant gave a “knowing, voluntary, and intelligent
waiver of [his] trial rights,” that he provided a “sufficient factual basis” to support his guilty
plea, and found him guilty of second-degree assault. The district court also found that the
state “laid a sufficient factual basis to support the upward durational departure” and
determined that “the number of shots fired, the fact that this was in a school area and
also . . . a residential area across from some family homes” supported a departure from the
guidelines. The d istrict court directed Bellaphant to return for sentencing after an
abbreviated presentence investigation (PSI) as provided in the plea agreement.
The PSI report stated that Bellaphant had a criminal-history score of three, therefore,
the guidelines sentence for his conviction of second-degree assault was a presumptive
commit to the commissioner of corrections for 39 months, with a range of 36 to 46 months.
The PSI also stated that the statutory maximum term of imprisonment was seven years, or
84 months, for second-degree assault. See Minn. Stat. § 609.222, subd. 1. The PSI did not
recommend a sentence or discuss aggravating factors, but stated the parties had agreed to
an executed 84-month sentence.
At a sentencing hearing on April 17, the district court asked Bellaphant and the state
if they had “[a]ny additions or corrections” to the PSI. Both parties responded that they did
not. The district court repeated its earlier finding of Bellaphant’s guilt and adjudicated him
guilty of second-degree assault, dismissed the remaining three counts, and imposed an
executed 84-month sentence. The district court found that the shooting took place in “a
residential area” and Bellaphant discharged “over 12 rounds,” therefore, the assault was
“more serious than the typical assault in the second degree.”
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Almost two years later, on April 16, 2019, Bellaphant petitioned for postconviction
relief, arguing (1) he “did not validly waive his right to a jury determination of whether the
circumstances justify the upward departure beyond a reasonable doubt” and (2) the record
does not establish “legitimate reasons” for the upward departure. Bellaphant contended
that, at the plea hearing, the district court did not inform him “that he had the right to a jury
trial” or “that the state had the burden of proving the basis for departure beyond a
reasonable doubt.” Bellaphant also argued that the district court record did not include his
signed Blakely waiver. He did not request an evidentiary hearing.
The postconviction court denied Bellaphant’s petition in a written order. This appeal
follows.
D E C I S I O N
Bellaphant raises one issue on appeal: whether his sentence should be reversed and
a guidelines sentence imposed because he did not validly waive his right to a jury trial on
aggravating factors. On appeal from a denial of postconviction relief, appellate courts
“review issues of law de novo.” Carlton v. State, 816 N.W.2d 590, 599 (Minn. 2012); see
also State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004) (“[A] Blakely argument
presents a constitutional issue, which this court reviews de novo.”).
“[T]he presumptive sentence prescribed by the Minnesota Sentencing Guidelines is
‘the maximum sentence a judge may impose solely on the basis of facts reflected in the
jury verdict or admitted by the defendant.’” State v. Shattuck, 704 N.W.2d 131, 141 (Minn.
2005) (quoting Blakely, 542 U.S. at 303, 124 S. Ct. at 2537 (emphasis omitted)). A district
court may impose an upward durational departure from the presumptive sente nce when
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one or more aggravating factors are present. See Minn. Stat. § 244.10, subds. 5, 5a (2016);
see also Minn. Sent. Guidelines 2.D.1 (2016).1
Before sentencing, a defendant is entitled under the Sixth Amendment to have a jury
determine any aggravating factors that a district court may rely on to impose a sentence
that departs from the guidelines. Blakely, 542 U.S. at 303-05, 124 S. Ct. at 2537-38. A
defendant may waive his right to a jury trial on aggravating factors, also known as Blakely
rights. State v. Jones, 745 N.W.2d 845, 851 (Minn. 2008). A waiver of Blakely rights is
valid if it is knowing, voluntary, and intelligent. State v. Dettman, 719 N.W.2d 644, 650-51
(Minn. 2006). A Blakely waiver is knowing, voluntary, and intelligent if the defendant
personally waives his sentencing trial rights in writing or on the record in open court after
he has been advised of his right to trial by jury and has had an opportunity to speak with
counsel. State v. Thompson, 720 N.W.2d 820, 827-28 (Minn. 2006) (citing Minn. R. Crim.
P. 26.01, subd. 1(2)(a)). The Minnesota Supreme Court amended Minn. R. Crim. P. 26.01,
to include subdivision 1(2)(b), which provides that a defendant may waive Blakely rights
if the “defendant does so personally, in writing or on the record in open court, after being
advised by the court of the right to a trial by jury, and after having had an opportunity to
consult with counsel.”

1 “[W]hen a court sentences an offender for a felony conviction, the court may order an
aggravated sentence beyond the range specified in the sentencing guidelines grid based on
any aggravating factor arising from the same course of conduct.” Minn. Stat. § 244.10,
subd. 5a(b) (2016); see also State v. Fleming, 883 N.W.2d 790, 797 (Minn. 2016) (holding
an upward durational departure is appropriate when an offender’s conduct is “significantly
more serious than typically involved in the commission of the sentenced offense”) (citing
Minn. Stat. § 244.10, subd. 5a(b)).
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Bellaphant argues that “the record here does not establish a valid Blakely waiver
under Minn. R. Crim. P. 26.01, subd. 1(2)(b).” He makes two arguments, which we discuss
in turn. Bellaphant first contends that he did not waive his jury -trial rights in writing
because the record lacks a written Blakely waiver. The state agrees that Bellaphant’s
written Blakely waiver “did not make it in to the court record,” but argues that Bellaphant’s
waiver is valid still because he testified that he read and signed a Blakely waiver. We note
that neither Bellaphant nor the state contend that Bellaphant did not sign a written Blakely
waiver.
We begin with the postconviction court’s analysis, which stated that Bellaphant had
a “valid concern” because his written Blakely waiver was not in the district court record.
But the postconviction court found the absence of a written waiver was “not relevant”
because Bellaphant did not dispute that he had signed the waiver, nor did Bellaphant
contend that his written waiver was “deficient in content or misstated the law”; rather,
Bellaphant’s issue was that court administration “misplaced his [Blakely] petition.”
Our review shows that Bellaphant’s written Blakely waiver is in the appellate record,
which consists of “[t]he documents filed in the trial court, the exhibits, and the transcript
of the proceedings, if any.” Minn. R. Civ. App. P. 110.01. Apparently, Bellaphant’s written
Blakely waiver was incorporated into the district court record at some point after the
postconviction court filed its order because the parties’ postconviction memoranda and the
postconviction court’s order each acknowledge the written waiver is missing. Our review
of the appellate briefs suggests that counsel continued to assume the written waiver is not
8
in the appellate record because neither party refers to the appellate record in briefs filed
with this court.2
Because Bellaphant’s written Blakely waiver is in the appellate record, this court
may rely on it reviewing Bellaphant’s appeal. See generally Thiele v. Stich, 425 N.W.2d
580, 582-83 (Minn. 1988) (holding appellate court must base its decision on evidence filed
with the district court and found in the record on appeal); State v. Morrow, 492 N.W.2d
539, 549 (Minn. App. 1992) (denying a motion to strike a letter when it had been filed in
district court and was a part of the appellate record). The postconviction court found that
Bellaphant signed a written Blakely waiver and Bellaphant does not challenge that finding
on appeal. Bellaphant’s Blakely waiver is file-stamped with the date of the plea hearing,
March 13, 2017, and Bellaphant signed and dated the document with the same date.
Bellaphant testified at the plea hearing that he had read, understood, and signed the Blakely
waiver. Bellaphant also agreed, in response to questioning, that he had read the petition
“[l]ine by line.”
Bellaphant’s final argument is that his on-the -record waiver is not valid because,
during the plea hearing, the district court failed to inform him that the state had the burden
to prove any aggravating factors beyond a reasonable doubt. Bellaphant is correct that the
plea-hearing transcript does not refer to the state’s burden of proof. Rather, the transcript
reflects that Bellaphant agreed, without a waiver, he would “have to make the state prove

2 We note that the district court record was submitted to this court after the appellant’s brief
was filed and before the respondent and reply briefs were filed.
9
that there were in fact aggravating factors.” Still, we reject Bellaphant’s challenge to his
on-the-record waiver for two reasons.
First, the postconviction court determined that Bellaphant’s Blakely waiver was
knowing, voluntary, and intelligent. The postconviction court found that Bellaphant “was
advised of his rights to an aggravated sentencing hearing, waived that hearing, and its
protections.” The postconviction court also found that Bellaphant understood his
bargained-for sentence was an upward durational departure from the presumptive
guidelines sentence, and that he was “clear headed” at the plea hearing and “his actions
were voluntary.” Taken together, these findings, which are supported by the record,
establish that Bellaphant’s Blakely waiver was valid. See Dettman, 719 N.W.2d at 650-51;
Thompson, 720 N.W.2d at 827-28.
Second, we need not rely solely on Bella phant’s on-the-record waiver because a
valid Blakely waiver may be either “in writing or on the record in open court.” Minn. R.
Crim. P. 26.01, subd. 1(2)(b). Bellaphant’s written Blakely waiver states, “The prosecution
must prove facts supporting an aggravated sentence to either a jury or a judge beyond a
reasonable doubt.” (Emphasis added.) We determine that Bellaphant was informed of the
state’s burden of proof when he read and signed his written waiver with the advice of
counsel, which occurred before he waived his Blakely rights on the record at the plea
hearing. In his brief to this court, Bellaphant does not argue that his written Blakely waiver
is deficient.
Because we conclude that Bellaphant’s Blakely waiver was valid, we do not
consider the parties’ arguments about whether any error was harmless. See State v.
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Chauvin, 723 N.W.2d 20, 30 (Minn. 2006) (“Blakely errors are not structural and thus are
subject to a harmless error analysis,” meaning a reviewing court determines whether the
error is harmless beyond a reasonable doubt) (citing Washington v. Recuenco, 548 U.S.
212, 221-22, 126 S. Ct. 2546, 2553 (2006)).
Affirmed.