This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-1961

 

 

William Lloyd Hutchinson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 27, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 01021711

 

 

Mary M. McMahon, Assistant State Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

This appeal is from an order denying appellant William Lloyd Hutchinson's postconviction petition challenging his 2001 sentence for first-degree criminal damage to property. We affirm.

FACTS

Hutchinson was charged in December 2000 with third-degree criminal sexual conduct and terroristic threats for an incident involving his girlfriend, who had obtained an order for protection against him. Hutchinson entered into a plea agreement under which he would plead guilty to first-degree criminal damage to property, a count that was added in the amended complaint, for smashing the stereo of his girlfriend's car and for damaging the mirror. The parties agreed that Hutchinson would receive a 48-month executed sentence, which represented a departure from the presumptive stayed sentence.

The district court sentenced Hutchinson on April 10, 2001, to the agreed-on 48-month executed sentence. The court did not cite any aggravating factors to support the departure.

The supreme court issued its decision in State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), holding departures based solely on a plea agreement are invalid, on May 9, 2002. On June 19, 2002, Hutchinson filed a postconviction petition seeking a modification of his sentence under Misquadace. The district court denied the petition, and this appeal followed.

D E C I S I O N

This court reviews a postconviction proceeding to determine only whether sufficient evidence exists to support the postconviction court's findings and will not disturb the court's decision absent an abuse of discretion. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

1. The supreme court in Misquadace held that a plea agreement by itself "is not a sufficient basis to depart from the sentencing guidelines." 644 N.W.2d at 72. Every departure, therefore, must be supported by substantial and compelling circumstances. Id. But the court held that retroactive application of its holding was not required. Instead, the court limited "application of the ruling to this case and to pending and future cases." Id.

The supreme court held that a case that was on appeal when Misquadace was released will be considered "not yet final and [therefore] 'pending,' in the sense that we have generally used that term." State v. Lewis, 656 N.W.2d 535, 538 (Minn. 2003); see also State v. Sanchez-Sanchez, 654 N.W.2d 690, 693 (Minn. App. 2002) (holding that Misquadace applied where the time to file a direct appeal had not expired when Misquadace was released and the defendant timely filed her appeal thereafter). Hutchinson's case was not "pending" because there were no active proceedings in existence when Misquadace was released, and the time to appeal had long since expired.

2. Hutchinson argues that due process requires that the sentencing departure be supported by factual findings of substantial and compelling circumstances. See Harris v. United States, 122 S. Ct. 2406, 2419 (2002). But Harris holds only that facts supporting a sentence "[w]ithin the range authorized by the jury's verdict" are not elements of the crime for constitutional purposes and therefore do not require the finding of a jury. Id. The Court, therefore, in effect approves statutes "requiring defendants to serve minimum terms after judges make certain factual findings." Id. But Harris does not require such findings, or hold that due process mandates that they be made.

In Minnesota, the sentencing guidelines have long required that reasons for departure be given. Minn. Sent. Guidelines II.D. But Hutchinson cites no case law holding that such findings are a constitutional requirement. Under the pre-Misquadace case law applicable here, the plea agreement itself could support a departure. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). Although the district court here did not cite the plea agreement when departing, the postconviction order confirms that the plea agreement was the basis for the departure.

3. Hutchinson argues that the postconviction statute entitles him to a remedy for Misquadace's change in the substantive law even though Misquadace was released long after the date of his sentence. The statute provides:

A person who has been convicted and sentenced for a crime committed before May 1, 1980, may institute a proceeding applying for relief under this chapter upon the ground that a significant change in substantive or procedural law has occurred which, in the interests of justice, should be applied retrospectively, including resentencing under subsequently enacted law.

 

Minn. Stat.  590.01, subd. 3 (2002). As the plain language of this provision indicates, it applies to offenders sentenced before the sentencing guidelines went into effect, in May 1980. Hutchinson was sentenced in 2001. Therefore, the provision does not apply to him.

4. In his pro se supplemental brief, Hutchinson argues that he should not be required to register as a predatory offender because he was convicted only of criminal damage to property, a property crime, and not the sexual offense with which he was initially charged. But this issue was not raised in the postconviction petition and is therefore waived. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

Affirmed.



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