This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Gale A. Rachuy, petitioner,





State of Minnesota,



Filed March 25, 2003


Gordon W. Shumaker, Judge


Pine County District Court

File No. K491126



Gale A. Rachuy, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)


Mike Hatch, Attorney General, Kari Josephine Ferguson, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55102, and


John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street, Pine City, MN 55063 (for respondent)



            Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N


            Appellant contends that his sentence violates Apprendi, that he was denied due process, and that he does not fit the statutory criteria for a career offender.  Apprendi does not apply, there was no due-process violation, and appellant’s career-offender claim improperly raises a new issue on appeal.  We affirm.


            Appellant Gale A. Rachuy was charged with a series of thefts by swindle in Washington County.  While on bail, he committed a series of thefts by swindle in Pine County.  He was convicted of the Washington County charges and was sentenced to imprisonment.  He was then convicted of five counts of theft in Pine County.  The court sentenced him on those counts consecutively to the Washington County convictions and consecutively to each other.  He was sentenced to the ten-year statutory maximum for each of three of the counts and to five years for each of the remaining two counts.

            Ultimately, the supreme court held that the district court improperly departed in its Pine County sentences and modified them to five consecutive one-year-and-one-day terms, to be served consecutively to the Washington County sentence.  State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993).  After the sentence modification, Rachuy filed three successive petitions for postconviction relief and appealed the denial of each.  Rachuy v. State, No. C1-95-2568 (Minn. App. Nov. 22, 1996) (order op.); Rachuy v. State, No. C9-97-975 (Minn. App. Apr. 21, 1998); Rachuy v. State, No. C3-99-1205 (Minn. App. Feb. 15, 2000).

            This appeal arises out of the district court’s denial of Rachuy’s fourth petition for postconviction relief.  The district court ruled that, in prior appeals, Rachuy had either actually raised or had known about the sentencing issues asserted in the fourth petition and, therefore, the court was not required to consider those matters again.  After the court denied the fourth petition, Rachuy raised, by letter to the district court, an issue regarding sentencing under the dangerous-offender statute.  Treating the letter as a request for review of the court’s immediately previous order, the court denied the request.

            On appeal, Rachuy contends that the sentence the supreme court modified in 1993 violates the Apprendi rule; that the law precludes sentencing a defendant as a career offender when one of the convictions relied upon is a misdemeanor; that the supreme court usurped a legislative function by creating new sentencing law, thereby denying due process to Rachuy; and that recent caselaw demonstrates that Rachuy is not a career offender.


            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) (citation omitted).  We review the district court’s findings with great deference, and we will reverse only if the findings are clearly erroneous.  Id.

            A postconviction court may summarily deny a second or successive petition for similar relief.  Minn. Stat. § 590.04, subd. 3 (2002).  The supreme court has held that

[o]nce a defendant directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief.


King v. State, 649 N.W.2d 149, 156 (Minn. 2002).

            Rachuy first contends that Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), and State v. Grossman, 636 N.W.2d 545, 551 (Minn. 2001), “have significantly changed the law and in fact have reversed State v. Rachuy, 502 N.W.2d 51.”

            In Grossman, the Minnesota Supreme Court noted that a change of rules in criminal matters applies retroactively to cases pending on direct review.  Grossman, 636 N.W.2d at 549 (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987)).  The highest court in this state issued its final decision as to the propriety of Rachuy’s sentence in 1993.  That issue was not pending on direct review when Apprendi was decided in 2000.  Thus, there is no Apprendi issue for us to consider in this appeal.

            The next issue Rachuy argues is that Minn. Stat. § 609.152 (1990) does not permit the inclusion of a misdemeanor conviction for purposes of determining career-offender status.  Rachuy concedes that he raised and argued this issue in two prior appeals.  State v. Rachuy, 502 N.W.2d 51 (Minn. 1993); Rachuy v. State, No. C0-97-975 (Minn. App. Apr. 21, 1998).  Because this issue was raised in two previous appeals, the district court did not err in declining to consider it once again.

            Rachuy urges that the Minnesota Supreme Court changed the statutory law when it modified his sentence in 1993 and that the supreme court’s holding denied him due process.  Finding a sufficient basis for a consecutive-sentencing departure, the supreme court modified Rachuy’s sentence.  Rachuy, 502 N.W.2d at 52.  Neither any individual sentence nor the aggregated consecutive sentences exceeded the statutory maximum term under the departure the supreme court held to be proper.

            Finally, citing State v. Huston, 616 N.W.2d 282 (Minn. App. 2000), and State v. Sanders, 644 N.W.2d 483, 485 (Minn. App. 2002), Rachuy argues that he does not meet the career-offender criteria, which require that he have five prior felony convictions.  Minn. Stat. § 609.152.  Under Sanders, the five requisite convictions must be “five sequential felony offenses and convictions.”  Sanders, 644 N.W.2d at 485.  Rachuy contends that he had only three felony convictions.

            Rachuy did not raise this exact issue in his letter to the district court.  Instead, he argued that under Sanders

the State was barred from resentencing a defendant as a dangerous offender without a hearing after he had been sentenced as a career offender.


Rachuy is raising the issue that he does not meet the career-offender statute criteria for the first time on appeal.  We need not address this issue because we will not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Also, because Sanders adopts Huston’s holding on how to count a defendant’s convictions under the career-offender statute, Rachuy knew or should have known about this issue prior to filing this postconviction claim in the district court.  See Sanders, 644 N.W.2d at 485 (quoting Huston, 616 N.W.2d at 283).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.