State v. Rourke

773 N.W.2d 913, 2009 Minn. LEXIS 705, 2009 WL 3379098

• Court: Supreme Court of Minnesota
• Decided: October 22, 2009
• Docket: A07-937
• Status: Published

Opinions

OPINION

ANDERSON, G. BARRY, Justice.

Appellant Chad Rourke and E.B. began dating in 1998, while E.B. was in high school. They had two children together. Throughout the relationship, Rourke physically abused E.B., injuring her on several occasions. E.B. and Rourke separated and resumed the relationship several times. By early 2003, E.B. had once again ended her relationship with Rourke, but Rourke, along with E.B., was still living at E.B.’s mother’s house in Morris, Minnesota.

On January 28, 2003, E.B., driving her van, went to pick up Rourke at a friend’s house in Morris. When E.B. arrived, Rourke ordered her into the passenger’s seat, took the keys, and drove around Morris while threatening to kill her. Rourke was speeding and driving erratically. E.B. feared for her life.

Rourke sped through a stop sign and crashed into a pole. Rourke attempted to pull E.B. from the van to make it look as if she was the driver. Because her legs were pinned in the car, he was unable to do so, and he left the scene. E.B. suffered shattered bones in her ankle, requiring placement of screws and a metal plate in her leg.

Rourke pleaded guilty to first-degree assault, Minn.Stat. § 609.221, subd. 1 (2008) (prohibiting a person from assaulting another and inflicting great bodily harm). He agreed to a maximum sentence of 128 months, an upward departure from the presumptive 98-month sentence. He admitted he drove E.B.’s van in a reckless manner and that he did so with the intent of scaring and intimidating her. He also admitted that the collision caused her great bodily harm. In exchange for his plea, the State dismissed five other charges and agreed not to seek a sentence longer than 128 months.

Rourke had previously been convicted, on two separate occasions, of assaulting E.B. The district court imposed the maximum sentence permitted under the plea agreement, citing Rourke’s two prior convictions involving E.B.; Rourke’s abuse of his position of power and control over her; the particular cruelty of the offense; and the plea agreement.

In Rourke’s first appeal, State v. Rourke (Rourke I), 681 N.W.2d 35, 38-41 (Minn.App.2004), the court of appeals rejected his argument that there were no substantial and compelling reasons to impose more than the presumptive sentence. We granted review, vacated the decision of the court of appeals, and remanded for consideration in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In State v. Rourke (Rourke II), No. A03-1254, 2005 WL 525522, at *2-3 (Minn.App. Mar. 8, 2005), the court of appeals concluded that Rourke’s upward durational sentencing departure violated his right to a jury trial under Blakely. Consequently, it remanded for resentenc-ing consistent with Blakely.

On remand, the State provided Rourke notice that it intended to submit the following aggravating sentencing factors to the jury at the Blakely trial: (1) plea agreement, (2) particular cruelty, (3) abuse of a position of power, and (4) vulnerability of the victim. Following a pretrial hearing, the district court concluded that only the factors of particular cruelty and vulnerability of the victim would be submitted to the jury because the sentencing guidelines’ list of aggravating sentencing factors did not include plea agreements or abuse of a position of power. The State did not file a pretrial appeal challenging the ruling of the district court.

A Blakely trial was held in February 2007. At the close of the State’s case, Rourke made a motion that the district court described as “the equivalent of a judgment of acquittal” arguing that the particular cruelty factor should not be submitted to the jury because it was unconstitutionally vague. The district court reserved its decision on Rourke’s motion and submitted the following special interrogatories to the jury: (1) Was E.B. treated with particular cruelty on January 28, 2003? and (2) Was E.B. particularly vulnerable on January 28, 2003, due to age, infirmity, reduced physical capacity, or reduced mental capacity? The district court denied the State’s request for a jury instruction defining “particular vulnerability” as including repeated attacks and intimidation by Rourke and a level of extreme and escalating ongoing violence, threats to kill, and efforts to control and intimidate E.B. Although the district court declined to include the requested definition in the jury instructions, the State was permitted to argue this theory to the jury.¹ The jury found that E.B. was treated with particular cruelty but that she was not particularly vulnerable.

After the Blakely trial, the district court issued a written order granting Rourke’s motion for judgment of acquittal and vacating the jury’s finding of “particular cruelty.” In its order, the district court explained that the term “particular cruelty” was unconstitutionally vague and that courts “have no authority” to provide jurors a definition of “particular cruelty.” The district court sentenced Rourke to 103 months, the high end of the presumptive range.

The State appealed this sentence. In State v. Rourke (Rourke III), No. A07-937, 2008 WL 2105445, at *3-5 (Minn.App. May 20, 2008), the court of appeals reversed the district court’s conclusion that the aggravating factor “particular cruelty” is unconstitutionally vague. The court of appeals also held that the district court abused its discretion both in concluding that the aggravating factor “abuse of a position of power” could not be submitted to the jury and in refusing to define the aggravating factor “particular vulnerability” to include vulnerability created by repeated attacks, intimidation, and extreme and escalating ongoing violence. Id. at *6-7.

The court of appeals remanded for a new Blakely trial and resentencing, with “particular cruelty” to be defined to the jury consistent with State v. Weaver, 733 N.W.2d 793, 803 (Minn.App.2007) (defining “particular cruelty” as conduct “significantly more cruel” than that usually associated with the offense of conviction, and noting instances in which “particular cruelty” was found, including setting fire to a victim who was still alive, leaving a victim to die alone without notifying emergency personnel, degradation of the victim and gratuitous infliction of pain), rev. denied (Minn. Sept. 18, 2007). Rourke III, 2008 WL 2105445, at *6. The court of appeals also held that, although the district court improperly defined “particular vulnerability,” retrial on that aggravating factor would violate the constitutional prohibition against double jeopardy because the jury had already rejected it. Id. at *7.

We granted Rourke’s petition for review on the issue of whether the Minnesota Sentencing Guidelines’ particular cruelty aggravating sentencing factor is unconstitutionally vague and whether the State may seek post-trial appellate review of a district court’s Blakely trial rulings. We also granted the State’s petition for cross-review on the double-jeopardy issue.

I.

A criminal law may be unconstitutionally vague for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); see also State v. Bussmann, 741 N.W.2d 79, 83 (Minn.2007).

“So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.” United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). However, the sentencing uncertainty caused by two statutes that prohibit the same conduct, but prescribe different penalties, does not render the statutes unconstitutionally vague as long as each statute unambiguously specifies the activity proscribed and the penalty available on conviction.² Id.

A statute that provides a judge discretion in determining a defendant’s sentence is not unconstitutional unless it violates the prohibition against cruel and unusual punishment. State v. Christie, 506 N.W.2d 293, 301 (Minn.1993). In Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the United States Supreme Court held that the prohibition against cruel and unusual punishment was triggered when a judge imposed a death sentence pursuant to a statute that provided standardless sentencing discretion.

We have previously rejected an argument that the Godfrey decision requires us to apply the vagueness doctrine to the Minnesota Sentencing Guidelines’ standards for sentencing departures. State v. Givens, 332 N.W.2d 187, 189-90 (Minn.1983). In Givens, we explained that “more routine sentencing decisions — those not including the death sentence” were not contemplated by the Godfrey decision.³ Id. at 190.

The Eighth Circuit has reached a similar conclusion regarding the federal sentencing guidelines. United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990). In Wivell, the court explained that aggravating factors in the federal sentencing guidelines are not subject to vagueness challenges because the federal guidelines “do not define illegal conduct: they are directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.” ⁴ Id. at 160. Citing Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Eighth Circuit further explained that “there is no constitutional right to such directives.” Wivell, 893 F.2d at 160. The Eighth Circuit recently reaffirmed the Wivell holding in United States v. Jefferson, 267 Fed.Appx. 483, 484 (8th Cir.2008) (explaining that the post -Blakely decision to make the federal sentencing guidelines advisory did not alter its conclusion in Wivell that aggravating factors in the federal sentencing guidelines are not subject to vagueness challenges).

Rourke argues that Givens and Wivell are not controlling in this case because they were decided before Blakely required a district court to submit the aggravating factors listed in the Minnesota Sentencing Guidelines to a jury. Rourke also takes the position that the district court’s submission of the special interrogatory asking the jury to find an aggravating factor listed in the Minnesota Sentencing Guidelines — namely whether E.B. was “treated with particular cruelty” — “confuse[d] the role of jury and judge.” He asserts that although the jurors in a Blakely jury trial “must decide any ‘additional fact’ of consequence to a judge’s decision to upwardly depart[,] the judge still decides whether a fact found by the jury distinguishes the offense from the typical offense to such a degree that departure is warranted.”⁵

In Blakely, the Court explained that any fad (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a guilty plea or guilty verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); see also United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For most felony offenses,⁶ the maximum sentence authorized by a guilty plea or guilty verdict is the top of the presumptive sentencing range provided in the Minnesota Sentencing Guidelines’ grid because the guidelines expressly require a district court to pronounce a sentence within the range on the grid.⁷ Minn. Sent. Guidelines II.D. But the guidelines allow a district court to exceed the maximum sentence authorized by the facts established by a guilty plea or guilty verdict if “there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grids.” Id.; see also State v. Shattuck, 704 N.W.2d 131, 140 (Minn.2005) (explaining that a “district court has discretion to depart ‘only if aggravating or mitigating circumstances are present.’ ” (quoting State v. Best, 449 N.W.2d 426, 427 (Minn.1989))). The phrase “there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grids,” reflects two distinct requirements for an upward sentencing departure: (1) a factual finding that there exist one or more circumstances not reflected in the guilty verdict or guilty plea, and (2) an explanation by the district court as to why those circumstances create a substantial and compelling reason to impose a sentence outside the range on the grid. As discussed below, this interpretation is supported by the language of Minn. Sent. Guidelines II.D.

Consistent with Blakely, Minn. Sent. Guidelines II.D provides that a district court “must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt.” (Emphasis added.) If the State proves the additional facts “beyond a reasonable doubt, the [district court] may exercise [its] discretion to depart from the presumptive sentence.” Id. In exercising that discretion, however, the district court “must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.” Id. In other words, the district court must explain why the circumstances or additional facts found by the jurors in a Blakely trial provide the district court a substantial and compelling reason to impose a sentence outside the range on the grid. These explanations do not involve finding facts, nor is it a role that has traditionally belonged to the jury. Consequently, these discretionary acts by the district court are not subject to the rule announced in Blakely.

The question presented in this case is whether the aggravating factor of particular cruelty listed in Minn. Sent. Guidelines II.D is an “additional fact” which must be submitted to the jurors in a Blakely trial or a “reason” which explains why the additional facts provide the district court a substantial and compelling reason or basis to impose a sentence outside the range on the grid, and which are outside the purview of a Blakely jury.

The Minnesota Sentencing Guidelines describe the aggravating factors listed in Minn. Sent. Guidelines II.D as an advisory and “nonexclusive list of factors which may be used as reasons for departure.” Id. (emphasis added). The factors include that “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Id. Although not controlling, the sentencing guidelines’ comments explain that “[t]he Commission provided a non-exclusive list of reasons which may be used as reasons for departure” when it identified aggravating and mitigating factors. Minn. Sent. Guidelines cmt. II.D.201. The comments further explain that the “factors are intended to describe specific situations involving a small number of cases.” Id.

Based on the language of Minn. Sent. Guidelines II.D, we conclude that the particular cruelty aggravating factor is a reason that explains why the additional facts found by the jury provide the district court a substantial and compelling basis for imposition of a sentence outside the range on the grid. This conclusion is consistent with our past descriptions of aggravating factors as reasons explaining why the facts of the case provide the district court a substantial and compelling basis to impose a sentence outside the range on the grid. For example in State v. Schantzen, 308 N.W.2d 484, 485-87 (Minn.1981), we explained that the fact that the defendant sprayed the handcuffed victims with chemicals supported the district court’s stated reason (particular cruelty) for imposing a sentence outside the range on the grid. It also is consistent with the nondeferential manner we use to review the aggravating factors on which a district court relied in imposing a sentence outside the presumptive range on the sentencing guideline grid. See State v. Leja, 684 N.W.2d 442, 450 (Minn.2004) (plurality opinion) (explaining that although the facts of the case were reprehensible, they did not provide a substantial and compelling reason to depart, including particular cruelty); Holmes v. State, 437 N.W.2d 58, 59 (Minn.1989) (explaining that in “the final analysis, our decision whether a particular durational departure by a trial judge was justified ‘must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts’ ” (quoting State v. Norton, 328 N.W.2d 142,146-47 (Minn.1982))).

Although the rule announced in Blakely now requires that the facts of the case be found by a jury, it does not require us to abandon our view that the particular cruelty aggravating factor is a reason explaining why the facts of the case provide the district court a substantial and compelling basis for imposition of a sentence outside the range on the grid.⁸ We hold that a district court must submit to a jury the question of whether the State has proven beyond a reasonable doubt the existence of additional facts, which were neither admitted by the defendant, nor necessary to prove the elements of the offense, but which support reasons for departure. But the question of whether those additional facts provide the district court a reason to depart does not involve a factual determination and, therefore, need not be submitted to a jury.⁹

Because we have concluded that Blakely does not require a district court to submit the aggravating factor of particular cruelty to a jury, Rourke’s effort to distinguish Givens and Wivell fails.¹⁰ Rourke argues that a jury cannot be expected to determine when a crime is particularly cruel, as most jurors have little to no experience with violent crimes. But Blakely does not require that a jury determine whether a crime was particularly cruel. Rather, Blakely requires that the jury determine “additional facts” (i.e., the defendant sprayed the handcuffed victims with chemicals) which a judge may rely on to support his or her explanation as to why those additional facts support a substantial and compelling reason (i.e., the defendant’s particular cruelty made the offense more serious than that typically involved in the commission of the crime) to impose a sentence outside the presumptive sentencing range. Because the aggravating factor of particular cruelty, as defined by Minn. Sent. Guidelines II.D.2, is not submitted to the jury, the reasoning in the pre-Blakely cases is still applicable.

Before Blakely, we repeatedly applied the “particular cruelty” factor, relying on our collective experience. See, e.g., State v. Griller, 583 N.W.2d 736, 744 (Minn.1998). We have explained that “particular cruelty” involves the gratuitous infliction of pain and cruelty “ ‘of a kind not usually associated with the commission of the offense in question.’ ” State v. Norton, 328 N.W.2d 142, 146 (Minn.1982) (quoting State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981)); see also State v. Smith, 541 N.W.2d 584, 590 (Minn.1996) (noting that “particular cruelty” involves gratuitous infliction of pain). These standards protect against arbitrary enforcement of the sentencing guidelines.

Based on Givens and Wivell, we reaffirm that the void-for-vagueness doctrine does not apply to the aggravating factor of particular cruelty. Our decision today is consistent with other courts that have affirmed that, even after Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), vagueness challenges do not apply to sentencing guidelines. E.g., United States v. Idowu, 520 F.3d 790, 795-96 (7th Cir.2008) (holding that vagueness challenges do not apply to sentencing guidelines but, even if they did, the challenged guideline was not unconstitutionally vague). We therefore affirm the court of appeals’ decision that the aggravating sentencing factor of “particular cruelty” is not unconstitutionally vague. We reverse, however, its order to submit the factor to the jury with a definition of “particular cruelty.” Instead, if another Blakely trial is held on remand, the district court should submit to the Blakely jury one or more special interrogatories that ask whether the State has proven, beyond a reasonable doubt, a factual circumstance which the State alleges would provide the district court a substantial and compelling reason (i.e., particular cruelty) to depart from the presumptive guideline sentence.

II.

We turn to the question of whether the court of appeals erred when it allowed the State to appeal the district court’s decision not to submit the abuse-of-power question to the Blakely jurors. Rourke claims the court of appeals failed to strictly construe the State’s right to appeal under Minn. R.Crim. P. 28.04. We agree.

The ability of the State to appeal is limited. See In re C.W.S., 267 N.W.2d 496, 498 (Minn.1978). There must be a statute or court rule that permits the appeal, or the issue must “arise by necessary implication” from an issue where the State’s right to appeal is expressly provided. Id. We strictly construe the rules governing appeals by the State in criminal cases because such appeals are not favored. State v. Barrett, 694 N.W.2d 783, 785-87 (Minn.2005).

Minnesota Rule of Criminal Procedure 28.04, subdivision 1(2), permits the State in a felony case to appeal from “any sentence imposed or stayed by the trial court.” The court of appeals concluded that this right includes the ability to challenge the district court’s decision on which questions to submit to the Blakely jury. Rourke III, 2008 WL 2105445, at *6. The de novo standard controls our review of the court of appeals’ decision because the issue presented involves an interpretation of procedural rules. Barrett, 694 N.W.2d at 785.

Our post -Blakely amendments to the Minnesota Rules of Criminal Procedure are not controlling in this case because the amendments became effective after Rourke’s sentencing. Nevertheless, the amended rules inform our analysis of the proper appeal avenue for the State when it seeks review of a district court’s decision not to submit a particular question to the Blakely jurors. Under the amended rules, the State must notify the defense of anticipated upward-departure grounds before trial, and the applicability of the noticed grounds is an issue the district court is to resolve at the omnibus stage of the case. See Minn. R.Crim. P. 7.03 (requiring notice); Minn. R.Crim. P. 11.04 (requiring the district court at the omnibus hearing “to determine whether the law and proffered evidence support an aggravated sentence”). Pursuant to the procedures set forth in Minn. R.Crim. P. 28.04, subd. 2, the State may file a pretrial appeal challenging the district court’s omnibus rulings. This pretrial-appeal right is limited, in part, because the State cannot file a pretrial appeal after jeopardy has attached. Minn. R.Crim. P. 28.04, subd. 2(8). In sum, our post-Blakely amendments to the rules of criminal procedure create a pretrial process for State challenges to a district court’s decision not to submit a particular question to the Blakely jurors. With this process in mind, we consider whether at the time of Rourke’s sentencing, the State’s right to appeal from a sentence imposed or stayed necessarily implied an ability to challenge a district court’s pretrial decision not to submit a particular question to the Blakely jurors.

A district court imposes or stays a sentence at a sentencing hearing, which is a proceeding governed by Minn. R.Crim. P. 27.03. On appeal from a felony sentence imposed or stayed, we “determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court.” Minn. R.Crim. P. 28.05, subd. 2. When strictly construed, this language does not necessarily imply a right to challenge a district court’s pretrial decision not to submit a particular question to the jurors in a Blakely trial. We therefore reverse the court of appeals’ decision to allow the State to file a post-trial appeal challenging the district court’s decision not to submit the abuse-of-power question to the Blakely jurors. We need not, and do not, consider the merits of the State’s claims regarding the abuse-of-power question.

III.

Although the State originally sought review of the court of appeals’ decision that to retry Rourke on particular vulnerability would be in violation of the double jeopardy bar, the State now concedes that the court of appeals correctly analyzed this issue and the State should not be permitted to submit particular vulnerability to a jury if a new trial is granted. Thus, we need not, and do not reach this issue. We remand the case to the district court for further proceedings consistent with our opinion.

Affirmed in part, reversed in part, and remanded.

1 . For example, the State argued to the jury that the long history of abuse made E.B. physically ''infirm.'’

2 . The dissent cites Batchelder to support its claim that we should apply the vagueness doctrine to the sentencing factors listed in Minn. Sent. Guidelines II.D. But Batchelder is not persuasive authority on the issue because it did not involve a sentencing departure provision and because it suggests that the Constitution does not require sentencing certainty.

3 . Before our decision in Givens, we considered a defendant’s claim that the dangerous offender statute, Minn.Stat. § 609.16 (1978), was unconstitutionally vague because it allegedly permitted the "use of unfettered discretion rendering the statute standardless.” State v. Adams, 295 N.W.2d 527, 536 (Minn.1980). Without discussing the threshold issue of whether we should apply the vagueness doctrine, we held that the statute was not unconstitutionally vague as applied to the defendant. Id.

4 . The Eighth Circuit reasoned:

Because there is no constitutional right to sentencing guidelines — or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines — the limitations the Guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague. It therefore follows that the Guidelines cannot be unconstitutionally vague as applied to [the defendant] in this case. Even vague guidelines cabin discretion more than no guidelines at all. What a defendant may call arbitrary and capricious, the legislature may call discretionary, and the Constitution permits legislatures to lodge a considerable amount of discretion with judges in devising sentences.

Wivell, 893 F.2d at 160.

5 . For purposes of this opinion, the term "additional facts” means those facts that were not reflected in the jury verdict or admitted by Rourke but that would support a substantial and compelling reason to depart from the presumptive guideline sentence.

6 . First-degree murder is excluded from the guidelines by law. Minn. Sent. Guidelines V.

7 . In response to Blakely, similar language in the federal sentencing guidelines was judicially excised. See United States v. Booker, 543 U.S. 220, 245, 249-50, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that the federal sentencing guidelines were discretionary). We rejected that line of reasoning as applied to the Minnesota Sentencing Guidelines. See, e.g., State v. Allen, 706 N.W.2d 40, 45-46 (Minn.2005); State v. Barker, 705 N.W.2d 768, 771-72 (Minn.2005); State v. Shattuck, 704 N.W.2d 131, 144 (Minn.2005).

8 . The dissent opines that the definition of particular cruelty we have developed through our case law has two components: gratuity and typicality. The dissent explains that "gratuity” involves a determination of whether the defendant inflicted gratuitous physical, psychological, or emotional pain that goes beyond what is inherent in the statutory elements of the crime. The dissent further explains that "typicality” involves a determination of whether the defendant's conduct was more serious than that typically involved in the commission of the crime. We agree that in our pre-Blakely cases, we considered the concepts of gratuity and typicality as part of our discussion of the particular-cruelty aggravating factor. But in those cases the distinction between the facts found and the reasons given for the departure was of little import because the district court served as both fact-finder and sentencer. We now clarify that the aggravating factor of "particular cruelty” is a reason for departing and not an additional fact to be found.

To be clear, the question of whether the defendant inflicted the physical, psychological, or emotional pain alleged by the State is one for the jury. But the explanation as to why the facts found by the jury made the defendant’s offense more serious than that typically involved in the commission of the crime — the victim was treated with particular cruelty for which the individual offender should be held responsible — is given by the court.

The dissent’s discussion of gratuity and typicality is not appreciably different then our analysis, except that the dissent concludes that typicality is a question for the jury. But even the comment to the Washington Pattern Jury Instruction — on which the dissent relies — questions whether typicality can or should be submitted to the juty. See 11A Wash. Sup.Ct. Comm, on Jury Instructions, Wash. Practice, Pattern Jury Instructions, Crim. WPIC 300.10 (3d ed. 2008) (stating that "[jjuries are not in a good position to make [typicality decisions]-they have information only about the current offense. For this reason, judges have traditionally decided these types of issues.... It is not even clear how such evidence would be presented to the jury, other than through expert testimony.”). See also Kevin S. Burke, State v. Dettman: The End of the Sentencing Revolution or Just the Beginning?, 33 Wm. Mitchell L.Rev. 1331, 1343 (2007) (discussing the difficulties in asking Blakely juries to resolve the question of particular cruelty because it "require[s] context”).

9 . This conclusion is not inconsistent with our decision in State v. Jackson, 749 N.W.2d 353 (Minn.2008), or State v. Shattuck, 704 N.W.2d 131 (Minn.2005), because those cases did not squarely address the issue in this case. In Jackson, both the majority and the dissent noted that at the Blakely trial, the district court had not asked the jurors whether Jackson committed the offense with particular cruelty. 749 N.W.2d at 360 n. 3 (majority opinion), 363 n. 3 (Gildea, J., dissenting). But that discussion did not squarely or fully address the issue presented here. Instead, it focused on whether the severity of the victim’s injuries could be used to support the district court’s upward sentencing departure. In Shattuck, the court did not need to address the issue of whether the aggravating factors listed in Minn. Sent. Guidelines II.D were facts to be found by the jury or were recognized reasons why an upward departure may be more appropriate than the presumptive sentence based on the facts found because in either event the district court had improperly acted as a fact-finder. 704 N.W.2d at 142.

Citing Minn. Sent. Guidelines cmt. II.D.01, the dissent argues that aggravating factors should be submitted to a jury. See Minn. Sent. Guidelines cmt. II.D.01 (stating that "[a] defendant has the right to a jury trial to determine whether or not aggravating factors are proved beyond a reasonable doubt”). We acknowledge that this comment is inconsistent with our holding. But the comment is not controlling authority on this issue. Asfaha v. State, 665 N.W.2d 523, 526 (Minn.2003) (explaining that comments to the Minnesota Sentencing Guidelines are advisory rather than controlling). The dissent also relies on the pattern jury instructions. But the pattern jury instructions are not persuasive authority because they reflect our arguably imprecise use of the phrase "aggravating factor" in past cases where the issue of whether an aggravating factor should be submitted to the jury was not squarely before us.

10 . The dissent claims that our reliance on Givens is misplaced. The dissent concedes, however, that Givens controls judicial sentencing decisions. Because we conclude that the aggravating sentencing factor of particular cruelty is a reason, explaining the judicial determination that the "additional facts” found by the jury make departure more appropriate than the presumptive sentence, our reliance on Givens is not misplaced. Despite the dissent's claim to the contrary, we need not, and do not, reach the issue of whether Givens precludes a vagueness challenge to the facts that must be found by a jury (which we describe as "additional facts” and which the dissent erroneously asserts include "aggravating sentencing factors”).