Cited by

“Great bodily harm” is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or 6 proposition that “elements of an offense cannot be used as aggravating factors to impose an upward sentencing departure for that same offense.” d 436, 446 (Minn. 2006).

-43 (Minn.2006), support his standard of review argument.

(holding that “elements of an offense cannot be used as aggravating factors to impose an upward sentencing departure for that same offense”).

447 n. 8 (Minn.2006) (declining to “speculate” how the United States Supreme Court would decide the question of whether Blakely errors were structural errors); State v. Richter, 270 Minn. 307, 310 , (declining to speculate on the question of whether Mapp v. Ohio should be applied retroacti

Dettman, d at 650-51 ; -44 (Minn. 2006).

“Structural errors require automatic reversal because such errors ‘call into question the very accuracy and reliability of the trial process.’ ” ( , 448 n. 8 (Minn.2006)) (other quotation omitted).

(stating that forfeiture doctrine is appropriate on issues that could be affected by defense strategy, such as proposed jury instructions and proffered evidence).

-44 (Minn.2006); Worthy, d at 276

held that conduct underlying one conviction for which a defendant was sentenced cannot be used to support an upward sentencing departure for a separate conviction.” ().

Errors that are structural “require automatic reversal because such errors ‘call into question the very accuracy and reliability of the trial process.’” ( , 448 n. 8 (Minn.2006)); see also Arizona v. Fulminante, 499 U.S. 279, 309-10 , 111 S.Ct.

(considering defendant’s Blakely argument in interests of justice because such argument was unknown to defendant and contrary to established case law at time it would have had to be raised); Clifton, d at 800 (taking into account fairness of defendant’s trial aside from error); -42 (Minn.2006).

3 Among the boundaries identified for proper departure is that “[t]he reasons used for departing must not themselves be elements of the underlying crime.” -79 (Minn.2005) (-24 (Minn. 2002)); (holding that elements of lesser-included offenses “cannot support upward sentencing departures”).

the district court declined the state’s request to impanel a jury to consider and decide departure evidence.

we should apply a harmless error standard of review because the failure to instruct the jury on an element of the offense is tantamount to the denial of the right to a jury trial on that element, which right cannot be forfeited by silence, but only by an affirmative waiver under Minn. R.Crim.

“forfeiture is nothing more than ⅜ ⅜ ⅜ waiver by silence,” and we see little logic in allowing a defendant to waive by silence a criminal history score calculation that he cannot waive by affirmative act.

Structural errors require automatic reversal because such errors “call into question the very accuracy and reliability of the trial process.” , 448 n. 8 (Minn.2006) (quoting McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998)).

See Dukes, d at 255 (holding a claim that an attorney’s admission of the defendant’s guilt without the defendant’s acquiescence warranted an evidentiary hearing); (holding a claim that counsel failed to communicate plea offers to the defendant warranted an evidentiary hearing); (explaining that a defendant cannot waive his or her fundamental rights to a jury trial or to counsel by silence).

( for the proposition that review of evidentiary errors implicating constitutional rights can be forfeited); Minn. R.Crim.

we pointed out that “conduct underlying one conviction for which a defendant was sentenced cannot be used to support an upward sentencing departure *830 for a separate conviction.” Id.

2006 WL 1549940 (Minn.2006).