STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Shane Michael Petschl,
Filed November 23, 2004
Crow Wing County District Court
File No. KX-97-354
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Donald F. Ryan, Crow Wing County Attorney, John Sausen, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, Minnesota 56401 (for respondent)
Rachael Goldberger, Strauss & Goldberger, 250 Second Avenue South, Suite 110, Minneapolis, Minnesota 55401-2169 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.
1. The rule announced in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), that the greatest sentence a judge can impose is the maximum sentence that may be imposed solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, does not retroactively apply on collateral review of a conviction that was final before Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
2. The rule announced in Blakely is not a “watershed rule of criminal procedure” retroactively applicable to cases on collateral review because it serves only to increase the accuracy of the sentence, not the accuracy of the conviction.
O P I N I O N
Appellant argues that (1) his counsel was ineffective for not clearly explaining to appellant that the district court could impose an upward departure regardless of the state’s agreement not to seek an upward departure; (2) the district court erred in sentencing appellant without considering the results from a court-ordered neuropsychological examination; (3) the district court abused its discretion in granting a double upward departure; and (4) he was denied due process. The postconviction court rejected appellant’s claims. At oral argument, the parties were granted leave, at appellant’s counsel’s request, to file supplemental briefs addressing the impact of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004); and specifically whether Blakely applies retroactively to appellant’s conviction. Because Blakely does not apply retroactively in this case, and because the postconviction court did not abuse its discretion in denying appellant’s postconviction petition, we affirm.
Appellant Shane Michael Petschl was charged with first-degree assault for putting a blanket over his three-week old son’s head and punching him. Petschl pleaded guilty to first-degree assault in exchange for the state’s agreement not to seek an upward departure. At the plea hearing, the district court judge asked appellant if he understood that the district court could still depart upward from the sentencing guidelines, even though the state had agreed not to seek an upward departure. Appellant acknowledged that the decision to upwardly depart was the district court’s sole prerogative.
The district court ordered a presentence investigation and a psychological evaluation, and the presentence investigation recommended an upward departure. On July 21, 1997, the district court sent a notice to the county attorney and appellant’s counsel informing them that it was considering a departure from the sentencing guidelines. Appellant contends, however, that his counsel never informed him of the court’s notice.
After receiving the results of the psychological exam on October 30, 1997, the district court ordered an additional independent neuropsychological examination to determine whether a 1991 head injury suffered by Petschl had resulted in his diminished capacity. The order stated that the examination was to be completed within 30 days. The examination was performed on November 17, and December 5, 1997, but the results were not filed with the district court until December 18, 1997, a week after sentencing. The district court sentenced appellant without reviewing the examination report. Appellant’s attorney did not object to the district court’s decision to proceed with sentencing without reviewing the report.
On December 11, 1997, the district court sentenced appellant to a 196-month commitment; a double upward departure from the presumptive 98-month sentence. In support of the departure, the district court discussed philosophical reasons for sending people to prison, stating that someone should be incarcerated for criminal conduct: as a deterrent to others, to punish the offender, for rehabilitation of the offender, and for public safety. The district court stated that all of these factors applied to appellant. Further, the district court noted that appellant had a prior record and that the victim was vulnerable. The district court concluded by stating that it accepted the rationale and recommendations of the presentence investigation.
On January 24, 2003, appellant filed a petition for postconviction relief. At the postconviction evidentiary hearing, appellant’s trial attorney, Charles Halverson, testified that he did not believe it was likely that appellant would get an upward departure, and that this was his only case where the judge indicated that he was considering a departure, and then actually departed. Halverson testified that he did not remember if the judge ordered a neuropsychological examination. After the hearing, Halverson submitted an affidavit stating that after he listened to the entire postconviction hearing, he recalled that the sentencing judge had ordered an independent neuropsychological examination. Halverson also stated in the affidavit that he should have objected when the judge decided to proceed with sentencing without the report and that his failure to object constituted ineffective assistance of counsel.
Appellant testified at the postconviction hearing that he believed he was going to get the presumptive sentence of 98 months or maybe a downward departure with a “slight possibility” of an upward departure. Appellant further testified that he gave up his right to trial in order to avoid an upward departure; he knew an upward departure was possible, but his counsel led him to believe that the court would not upwardly depart. Appellant testified that he did not see the notice from the judge stating that he was considering seeking an upward departure.
The district court denied appellant’s petition for postconviction relief. This appeal follows.
I. Was appellant denied effective assistance of counsel?
II. Does Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004) apply retroactively on collateral review of appellant’s conviction?
III. Did the district court abuse its discretion in granting a double upward departure from the presumptive sentencing guidelines?
IV. Was appellant denied due process?
Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous. The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. (citation omitted).
In determining whether to grant a defendant a new trial on the ground of ineffective assistance of counsel, the Minnesota Supreme Court adopted the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). First, the burden is on the petitioner to affirmatively prove that counsel’s representation fell below an objective standard of reasonableness. Id. at 561. “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). “There is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.” Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).
Alternatively, appellant argues that even if his conviction was final in 1998 and his present postconviction petition is a collateral attack on that conviction, he is entitled to relief under Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989), because Blakely constitutes a “watershed rule of criminal procedure” which may be retroactively applied on collateral review. Teague, 489 U.S. at 311, 109 S. Ct. at 1076.
As a general matter, subject to two exceptions, if a defendant’s conviction is already final at the time the new rule of law is announced, then the defendant may not avail himself of the new rule. Teague, 489 U.S. at 310-11, 109 S. Ct. at 1061; O’Meara,679 N.W.2d at 339. Thus, to evaluate appellant’s claim we must first determine whether Blakely announced a new constitutional rule.
Pursuant to Teague, a court’s decision enunciates a “new rule of law” when the decision was not “dictated” by precedent existing at the time the defendant’s conviction became final. Teague, 489 U.S. at 301, 109 S. Ct. at 1070; O’Meara, 679 N.W.2d at 339.
In O’Meara, the Minnesota Supreme Court addressed the retroactivity of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and held, inter alia, that because “Apprendi unmistakably altered the legal landscape [it] is easily categorized as a new rule.” O’Meara, 679 N.W.2d at 339, quoting United States v. Moss, 252 F.3d 993, 998 (8th Cir. 2001), cert. denied, 534 U.S. 1097, 122 S. Ct. 848 (2002). Blakely similarly announced a new constitutional rule at least for purposes of this appeal as the parties agree, because it was not dictated by precedent existing when appellant’s conviction became final, which was before the release of Apprendi.
At the time appellant’s conviction became final in 1998, the Supreme Court still approved statutory sentencing schemes under which certain facts affecting the sentence were treated as sentencing factors only, not elements of the crime to be found by the jury. See McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S. Ct. 2411, 2416 (1986). The Court had “rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed.” Monge v. California, 524 U.S. 721, 729, 118 S. Ct. 2246, 2250–51 (1998). The most that a minority of the Court would have asserted at the time is that a fact that increases the maximum possible sentence must be considered an element of the offense, to be proven beyond a reasonable doubt. See id. at 738, 118 S. Ct. at 2255 (Scalia, J., dissenting). It appears that no member of the Court had advanced the idea adopted in Blakely that a fact that merely increased the sentence above a fixed presumptive term but still below the statutory maximum, must be found by a jury.
As a new constitutional rule, Blakely may only be applied retroactively to cases on collateral review if it: (1) places certain kinds of individual conduct beyond the power of the government to criminally proscribe; or (2) requires the observance of procedures that are “implicit in the concept of ordered liberty,” meaning a “watershed rule[ ] of criminal procedure” that alters the understanding of the basic procedures essential to the fairness of a criminal conviction. Teague, 489 U.S. at 307, 311, 109 S. Ct. at 1073, 1076 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152 (1937)). Appellant does not claim that the first Teague exception is applicable to his case. Rather, appellant argues that Blakely is a “watershed rule of criminal procedure” because it increases the accuracy of the underlying criminal proceeding by requiring a jury determination—beyond a reasonable doubt—of any facts used to support an upward durational departure. We disagree.
This court has previously held that the right to a jury determination of facts relevant only to sentencing does not fall within either of the Teague exceptions. See Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003). In holding that Apprendi was not of watershed magnitude, this court in Meemken, stated that: “[w]e recognize that the Apprendi rule improves the accuracy of a sentence. However, the rule does not increase the reliability of the determination of guilt; it only limits the sentencing exposure of those who have already been validly convicted. Id. (citing Moss, 252 F.3d at 997). Blakely has the same procedural effect as Apprendi, increasing the accuracy of the sentence but not the conviction. Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that it is not a watershed rule subject to retroactive application on collateral review. Accordingly, we now analyze the propriety of the district court’s upward durational departure independent of Blakely.
Appellant’s due-process argument is not supported by the record. Appellant agreed to plead guilty, and the district court thoroughly reviewed the consequences of his plea with appellant before accepting his plea. Moreover, the court rescheduled appellant’s sentencing hearing approximately three times, apparently in an attempt to have a complete record for sentencing. And, in fact, the district court ordered a psychosocial assessment, which it was not required to do, and then, upon recommendation of the psychosocial assessment, ordered the additional neuropsychological examination. Based on these facts, the record reflects that appellant received all the process he was due. Therefore, we conclude that the district court did not deny appellant due process and affirm the denial of appellant’s postconviction petition.
Because Blakely established a new constitutional rule that does not fall within either of the Teague exceptions, Blakely does not apply retroactively to collateral review of appellant’s 1998 conviction. In addition, appellant was not denied effective assistance of counsel; the district court did not abuse its discretion in granting a double upward departure; and appellant was not denied due process. Accordingly, we affirm the postconviction court’s denial of appellant’s postconviction petition.
 In his principle appellate brief, appellant stated that he was represented by the state public defender’s office and that he previously filed an appeal with this court. According to appellant, the appeal was dismissed prior to a decision on the merits.