This opinion will be unpublished and

may not be cited except as provided by

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






Edward Santiago, petitioner,





State of Minnesota,



Filed October 5, 2004

Affirmed in part and remanded in part

Kalitowski, Judge


Hennepin County District Court

File No. 97061930


Edward Santiago, #156912, MCF/Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s decision denying his petition for postconviction relief, arguing that the sentencing court erred in failing to give him notice of the court’s intent to depart from the sentencing guidelines.  Appellant also asks this court to consider the effects of Blakely v. Washington on his sentence.  124 S. Ct. 2531 (2004).  We affirm in part and remand in part.



Postconviction rulings are reviewed “under an abuse of discretion standard.”  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  This court’s inquiry is limited to “determin[ing] whether there is sufficient evidence to sustain the postconviction court’s findings.”  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  In the absence of an abuse of discretion, this court will not disturb the postconviction court’s decision.  Id.  But on review of a postconviction court’s denial, without an evidentiary hearing, of a petition for postconviction relief, any doubts about whether an evidentiary hearing is required are resolved in favor of the petitioner.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003).  An evidentiary hearing is not required if the petition, files, and record conclusively show that the petitioner is entitled to no relief.  Id

            Appellant argues that the district court erred in failing to notify him of its intent to depart from sentencing guidelines and cites State v. Brennan for this proposition.  674 N.W.2d 200, 208 (Minn. App. 2004).  But the Brennan court concluded that reversal is appropriate when the defendant had no notice of the district court’s intention to consider an upward durational departure and objected to the lack of notice.  Id

            Here, the record indicates that appellant knew, prior to the hearing, that the district court was considering an upward departure.  The record reflects that the parties had discussions about sentencing matters in chambers.  And the transcript states that the parties agreed that the court could durationally depart upward 25.5 months on count one.  Thus, prior to sentencing, appellant had notice that the district court was considering an upward durational departure. 

            Appellant also asserts that he “continued to object to this departure and that the timeliness of the State and the Court’s intention was not proper.”  But the record indicates that appellant did not object to either the sentence or the lack of notice.  Instead, appellant stated, on the record, that he entered into the agreement and understood that the agreement was for a sentence of 240 months.  He further stated that he understood how the court arrived at the 240-month sentence and that he did not have any questions regarding his sentencing.  And the record indicates that the court stated that it was imposing an upward durational departure of 25.5 months.  Thus, contrary to appellant’s assertion, the record indicates that he did not object to the lack of notice.  See State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992) (finding that lack of notice caused no prejudice where defendant knew the state was requesting an upward departure and no objection appears on the record), review denied (Minn. Aug. 27, 1992).  Because the record indicates that appellant had prior notice of the court’s intention to depart and no objection appears on the record, we conclude that the district court did not abuse its discretion in denying appellant’s petition for postconviction relief.


            Appellant asks this court to consider the effect of Blakely v. Washington on his sentence.  124 S. Ct. 2531.  After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, holding that an upward departure under Washington’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial.  Id.  Appellant has cited Blakely in a letter to this court, but the application of that opinion has not been briefed.  See Minn. R. Civ. App. P. 128.05 (allowing citation of supplemental legal authority without argument).  Appellant did not request supplemental briefing, and we conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue.  See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  Accordingly, we remand to the district court for a consideration of the application, if any, of Blakely to appellant’s sentence.

            Affirmed in part and remanded in part.