This opinion will be unpublished and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
Calvin Wayne Davis, petitioner,
State of Minnesota,
Filed July 20, 2004
Hennepin County District Court
File No. 97118602
Calvin Wayne Davis, OID # 199292, MCF Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
In a postconviction proceeding, appellant challenges the upward departure imposed as part of his 1998 sentence for second-degree felony murder. Because we see no abuse of discretion in the departure, we affirm.
In 1998, appellant Calvin Davis pleaded guilty under a plea agreement to a charge of second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (1996). A charge of second-degree intentional murder under Minn. Stat. § 609.19, subd 1(1) (1996), was dropped, and appellant accepted a 300-month sentence that included the presumptive 165 months plus an upward departure of 135 months based on the presence of children and the use of drugs.
In 2003, appellant requested documents and transcripts and filed a pro se postconviction petition challenging the upward departure. His petition was summarily denied, and he appeals from that denial.
D E C I S I O N
The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
Appellant argues that the district court abused its discretion in allowing him to plead to an upward departure of 135 months. He does not argue that the district court lacked appropriate basis for the upward departure, but instead relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), released two years after his sentencing. His reliance is misplaced. “The rule announced in Apprendi . . . that facts that increase the penalty for a crime beyond the statutory maximum must be submitted to a jury does not retroactively apply on collateral review of a conviction.” Meemken v. State, 662 N.W.2d 146, 147 (Minn. App. 2003). Appellant was sentenced in 1998, two years before the release of Apprendi, and Apprendi is not applied retroactively. See id.
Even if Apprendi were applied, it would not mandate a reversal of the upward departure. Apprendi holds that facts used to increase a penalty beyond the prescribed statutory limits must be submitted to a jury. Id. at 148. Appellant’s sentence was not beyond the prescribed statutory limits—the maximum statutory commitment for second- degree murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1996), under which appellant was sentenced, was 480 months, and appellant was sentenced to 300 months. Appellant also argues that his 300-month sentence is closer to the presumptive 326-month sentence for intentional murder and that the count of intentional murder was dismissed pursuant to the plea agreement. But appellant ignores the fact that an upward departure would have been equally appropriate if he had been sentenced on that count.
 The parties have not at any time raised the issue of the application of Blakely v. Washington, 2004 WL 1402697 *8 (U.S.), as a part of this appeal.