State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0107

State of Minnesota,
Respondent,

vs.

TS’John Thomas Reed,
Appellant.

Filed April 24, 2023
Affirmed
Jesson, Judge

Ramsey County District Court
File No. 62-CR-20-2976

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Bjorkman, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
As appellant TS’John Thomas Reed stood in a convenience-store line to order food,
he was confronted by another customer (D.V.) regarding who was next in line. A heated
2
exchange between the two men ensued, which began with words but rapidly escalated into
a physical altercation, culminating with Reed fatally shooting D.V. in his chest and
abdomen.
Reed pleaded guilty to second-degree unintentional murder. The plea petition
provided that respondent State of Minnesota could argue for an upward durational
departure and that Reed “does not agree that there are aggravating factors but agrees to
allow the court to make that determination and waives Blakely.” See generally
Blakely v. Washington, 542 U.S. 296, 303 (2004) (explaining that every fact that supports
an enhanced sentence must be found by a jury or admitted by the defendant). After
receiving stipulated evidence (including a surveillance video of the shooting), the district
court determined that the state had proved a basis for an upward durational sentencing
departure because the offense created a greater-than-normal danger to the safety of others.
But while the court concluded it had the legal authority to sentence Reed to an upward
durational departure, it imposed a presumptive “top-of-the-box” sentence instead.
In a postconviction petition requesting an evidentiary hearing, Reed argued that he
did not validly waive his Sixth Amendment right (referred to as a Blakely waiver) to have
a jury determine whether circumstances justified an upward durational departure. Reed
now appeals the denial of that petition. Because the district court did not sentence Reed to
an upward durational departure and any potential error in Reed’s Blakely waiver was
harmless beyond a reasonable doubt, we affirm.
3
FACTS
Pursuant to a plea agreement, Reed pleaded guilty to one count of second-degree
unintentional murder.1 In exchange for Reed’s guilty plea, the state agreed to dismiss the
second-degree intentional-murder charge.
At the subsequent plea hearing, the state detailed the plea agreement the parties
previously accepted. The plea agreement granted Reed the opportunity “to argue for [the]
low end of the guideline of 128 months” at sentencing. And the state was free to argue for
an upward durational departure of up to 240 months’ imprisonment. As a caveat to the
state’s requested sentencing departure, Reed would be required to further “agree to have
the [c]ourt decide . . . whether or not the Blakely factor is present.”
Next, for the factual basis of his plea, Reed testified that on May 1, 2020, he left his
fiancée’s home to pick up food. Reed brought two 9mm pistols with him as he drove
around St. Paul looking for a business that was open despite widespread
COVID-19-pandemic restrictions. Reed found an open convenience store and went inside
to place his order. According to Reed’s testimony, t here was a long line of customers
waiting to place orders, so he took his place in line and began reviewing the menu. Reed
testified that, while waiting in line, D.V. approached him and tried to shove Reed out of
the line. Reed told D.V. that he had a firearm on his person. D.V., who Reed testified was
unarmed, walked away from Reed. Reed pointed a pistol at D.V.’s back as he walked away

1 Reed pleaded guilty to violating Minnesota Statutes section 609.19, subdivision 2(1)
(2018), which states that whoever causes the death of a human being, without intent to
cause the death of any person, while committing or attempting to commit a felony offense
is guilty of unintentional murder in the second degree.
4
from Reed. According to Reed, the two men exchanged words and, at some point, Reed’s
pistol was fired at least twice, fatally wounding D.V. in his chest and abdomen.
The district court accepted Reed’s guilty plea. But although Reed waived his trial
rights during the plea hearing—and while he repeatedly and generally waived his right to
a jury determination of an aggravating factor—his oral waiver did not address the specific
rights set forth in the Minnesota Rules of Criminal Procedure.2 Nor does the record contain
a written Blakely waiver. But the plea hearing included the following questions and
answers concerning the waiver:
Defense Counsel: Now, because we’ve stipulated to a range
where the upper part of the range, the 240, is 60 months higher
than the top end of the guidelines, the judge needs to have
authority to do that, and as part of this, normally, you would
have the right to have a jury trial . . . and the jury would
determine whether or not there are aggravating factors; do you
understand that?

Reed: Yes, sir.
Defense Counsel: And I talked to you about what Blakely
means, and that . . . we’re not agreeing to the aggravating
factors, . . . right?

Reed: Yes.

Defense Counsel: What we’re allowing the judge to do is make
that determination, just waive your right to have a jury trial on
that issue and the judge will make that determination. And we
can argue against it, but that’s what’s going to happen. Is that
ok with you?

2 To waive a jury trial under Rule 26.01, subdivision 1(2), of the Minnesota Rules of
Criminal Procedure, the defendant must waive the right: (1) to testify at trial; (2) to have
the prosecution witnesses testify in open court in the defendant’s presence; (3) to question
those prosecution witnesses; and (4) to require any favorable witnesses to testify for the
defense in court. Minn. R. Crim. P. 26.01, subd. 3(b)(1)-(4).
5

Reed: Yes, sir.

Defense Counsel: You would waive your right to have a jury
make that determination, correct?

Reed: Yes, sir.

(Emphasis added.) Further the district court directly reviewed Reed’s Blakely rights with
Reed, stating:
District court: [Defense counsel] did a good job in covering
your rights, but I just want you to understand Blakely-wise, you
could have a hearing. It’s like a trial. It is a trial. And you
could choose a jury to decide whether or not there are
aggravating factors to go beyond 180 months, right?

Reed: Yes, Your Honor.

District court: And you are choosing to let me decide that issue,
correct?

Reed: Yes, sir.
3

At the conclusion of the plea hearing, the district court made a finding that Reed
understood his right to have a jury determine whether an aggravating factor existed and
that he waived that right.
The parties then submitted stipulated orders and written arguments to the district
court regarding whether aggravating circumstances supported an upward durational
departure. The district court determined that there was one aggravating factor, “which is
that [Reed] created a greater than normal danger to the safety of other people in committing

3 At the sentencing hearing, the district court also addressed Reed’s Blakely waiver. Both
parties agreed that while no documented waiver was in the record, Reed had expressed his
Blakely waiver orally at the plea hearing.
6
the offenses due to the presence of numerous people around” at the time of the offense.
But the district court also found that a mitigating factor existed. Accordingly, the district
court denied the state’s motion for an upward durational departure and imposed an
executed sentence of 180 months, a presumptive “within-the-box” sentence.
In January 2022, Reed filed a notice of appeal with this court. This court stayed the
appeal to allow Reed to pursue postconviction relief. In his postconviction petition, Reed
challenged the validity of his Blakely waiver. The postconviction court denied the petition
without holding an evidentiary hearing , determining that any error in Reed’s Blakely
waiver was harmless.
Reed appeals.
DECISION
Reed challenges the summary denial of the postconviction petition, arguing that the
postconviction court abused its discretion by denying the petition. Generally, we review
the denial of a postconviction petition without an evidentiary hearing for an abuse of
discretion. Caldwell v. State, 853 N.W.2d 766, 770 (Minn. 2014). To receive an
evidentiary hearing, Reed’s postconviction petition must allege fact s that, if proven by a
fair preponderance of the evidence, would satisfy the Blakely test set forth below.
Thoresen v. State, 965 N.W.2d 295, 309 (Minn. 2021).
We begin our analysis with examination of what has become known as a “ Blakely
waiver.” The United States and Minnesota Constitutions guarantee criminal defendants
the right to a jury trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. And under the
Sixth Amendment, a defendant has the right “to be sentenced based solely upon factual
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findings made by a jury.” State v. Reimer, 962 N.W.2d 196, 198 (Minn. 2021) (emphasis
added). “[A]ny 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.” Blakely,
542 U.S. at 301 (quotation omitted). But that right —like other trial rights —may be
waived. Id. at 310. And a defendant’s waiver of this right is considered valid if it is
knowing, voluntary, and intelligent. State v. Dettman, 719 N.W.2d 644, 6 50-51
(Minn. 2006).
When the defendant personally waives their sentencing-trial right in writing or on
the record in open court after being advised of the right to a trial by jury and has had an
opportunity to speak with counsel, their Blakely waiver is considered knowing, voluntary,
and intelligent. See State v. Thompson, 720 N.W.2d 820, 827- 28 (Minn. 2006) (citing
Minn. R. Crim. P. 26.01, subd. 1(2)(a)). Whether a Blakely error has occurred is a legal
question we review de novo. Dettman, 719 N.W.2d at 648-49.
We conclude no Blakely error occurred because Reed received a presumptive
sentence. The root of a Blakely violation is the imposition of an upward departure based
on facts not submitted to a jury and proved beyond a reasonable doubt or not waived by
the defendant. Here, the district court did not impose an upward durational departure on
Reed. Rather, the district court imposed an executed sentence of 180 months, a
presumptive sentence because it falls within the presumptive range of 128-180 months.
Thus Reed’s argument here does not succeed because there was no Blakely violation.
But even if a Blakely violation exists, we review that error to determine whether it
is harmless beyond a reasonable doubt. Reimer, 962 N.W.2d at 199. “A Blakely error is
8
harmless if the reviewing court can say with certainty that a jury would have found the
aggravating factors used to enhance the defendant’s sentence had those factors been
submitted to a jury in compliance with Blakely.” State v. Essex, 838 N.W.2d 805, 81 3
(Minn. App. 2013) (quotation omitted), rev. denied (Minn. Jan. 21, 2014).
Here, even if Blakely were implicated by a presumptive sentence — and assuming
Reed’s Blakely waiver was invalid —we conclude that any potential error was harmless
beyond a reasonable doubt.4 We so conclude based on the strength of the evidence—
particularly the surveillance video footage — which the district court reviewed as a fact
finder with regard to the existence of an aggravating factor. T hat evidence strongly
supports the finding that Reed’s offense created a greater-than-normal danger to the safety
of others. The surveillance footage shows at least seven people present during the incident
while Reed had the gun in his hand, and at least seven people were present in the small
convenience store when Reed shot D.V. This conduct is more serious than a typical
second-degree unintentional murder crime given the number of potential victims in a tight
space when Reed was threatening D.V. with his gun and subsequently shooting D.V.
See, e.g., State v. Fleming, 883 N.W.2d 790, 797 (Minn. 2016) (explaining that firing a gun
six times in a park filled with children makes an illegal possession of a firearm conviction
significantly more serious than a typical offense because of the large number of potential
victims).

4 We note that the state concedes that Reed’s oral waiver did not include the individual
waivers required by rule 26.01, subdivision 3(b)(1)-(4), of the Minnesota Rules of Criminal
Procedure.
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In sum, we discern that no Blakely waiver error occurred given that the district court
did not give Reed a sentence with an upward durational departure. And any error would
have been harmless beyond a reasonable doubt given the strength of the evidence
supporting the aggravating factor.5
Affirmed.

5 Because Reed’s postconviction petition does not allege sufficient facts that would warrant
relief, he is not entitled to an evidentiary hearing on his postconviction petition. Thoresen,
965 N.W.2d at 309.