This opinion will be unpublished and

may not be cited except as provided by

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






Robert Earl Vogt, petitioner,


State of Minnesota,


Filed January 11, 2005


Minge, Judge


Polk County District Court

File No. K3-00-279



Robert Earl Vogt, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)


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


Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)


            Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges an order denying postconviction relief.  Because appellant was not denied the effective assistance of counsel, because claims raised in appellant’s first postconviction petition are barred from consideration in this petition, and because the recent United States Supreme Court decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), does not have retroactive effect for postconviction petitions, we affirm.



Based on incidents that occurred in February 2000, appellant Robert Earl Vogt was charged with one count of criminal sexual conduct in the first-degree in violation of Minn. Stat. § 609.342, subd. 1(a) and 2 (2000), and three counts of criminal sexual conduct in the second-degree in violation of Minn. Stat. § 609.343, subd. 1(a) and 2 (2000).  On September 11, 2000, pursuant to an agreement, appellant pleaded guilty to and was convicted of two counts of criminal sexual conduct in the second degree, the state dismissed the other charges, and the parties agreed to an executed sentence of 96 months on each count to run concurrently.  Appellant was sentenced on December 5, 2000, and the sentence represented an upward durational departure from the sentence under the presumptive guidelines.  The district court ordered this stipulated departure without otherwise making required findings pursuant to State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). 

On February 15, 2001, appellant, with the assistance of the state public defender’s office, filed a direct appeal.  This appeal was subsequently dismissed by stipulation.  Beginning in October 2001, appellant wrote to the state public defender’s office requesting a new attorney because he believed his assigned public defender had discouraged him from pursuing his sentencing claims.  The public defender’s office responded to appellant’s legal questions and stated that it would arrange for a replacement attorney.  On October 25, 2002, appellant submitted a postconviction petition with the assistance of new counsel.  In this petition, appellant argued, among other issues, that his sentence should be reduced to 45 months because the district court did not find substantial and compelling circumstances to depart from the sentencing guidelines and because the durational departure violated his constitutional rights to equal protection.  The district court denied this portion of appellant’s petition, and appellant did not appeal the district court’s order.

On March 15, 2004, appellant filed a pro se motion to amend his sentence, which the district court denied.  This appeal followed, which this court has characterized as an appeal from a postconviction petition.  Appellant asserts that he was denied effective assistance of counsel because his counsel delayed challenging his upward sentencing departure until after the decision of the Minnesota Supreme Court in State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), which was released on May 9, 2002.  Appellant asserts that since Misquadace overruled the Givens rule under which he had been sentenced, this delay was highly prejudicial.  Appellant further argues that as an upward durational departure, his sentence violates his constitutional rights to equal protection, that the district court did not find substantial and compelling circumstances to depart from the sentencing guidelines, and that he is entitled to relief under Blakely.  We affirm.



A postconviction court’s findings are reviewed “to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citations omitted).  Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court will not disturb the decisions of a postconviction court absent an abuse of discretion.  Dukes, 621 N.W.2d at 251 (Minn. 2001).


The first issue is whether appellant was denied effective assistance of counsel because appellant’s counsel failed to promptly file a postconviction petition.  To prevail on a claim of ineffective assistance of counsel, a claimant must show two things: first, that counsel’s performance “fell below an objective standard of reasonableness” and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  When reviewing such a claim, this court determines “whether the representation and the assistance were reasonable in light of all the circumstances.”  Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).  “There is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.”  Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).  “The right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal . . . .”  Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986). 

The district court sentenced appellant to 96 months, a one-and-a-half-times upward durational departure from the presumptive sentence under the sentencing guidelines.  The district court imposed this sentence pursuant to pre-Misquadace case law, which permitted courts to impose sentencing departures based solely on plea agreements.  Givens, 544 N.W.2d at 777.  The Minnesota Supreme Court in Misquadace eliminated this practice and established a new rule of law, which states that every departure from the sentencing guidelines must be supported by substantial and compelling evidence, and that the sentencing court cannot rely on the plea agreement as the sole reason for a departure.  644 N.W.2d at 72. 

The Misquadace court limited the application of the decision to cases pending on or arising after May 9, 2002, the date of the opinion.  Id.  Subsequently, the court determined that Misquadace applies to cases pending on direct appeal at the time of the release of Misquadace and not to postconviction petitions filed after the release of that decision.  See Hutchinson v. State, 679 N.W.2d 160, 161-62 (Minn. 2004) (holding Misquadace did not apply to defendant who did not take direct appeal but filed a postconviction petition the month after Misquadace was released). 

Here, appellant was sentenced on December 5, 2000, and had 90 days to file a direct appeal.  See Minn. R. Crim. P.  28.02, subd. 4(3).  Appellant initially filed a direct appeal seeking to withdraw his guilty plea on February 15, 2001, but then voluntarily dismissed it pursuant to a stipulation on March 19, 2001.  This was more than a year before Misquadace was released.  Therefore, it is irrelevant when appellant’s counsel filed the postconviction petition because the ruling in Misquadace was unavailable following the voluntary dismissal of his direct appeal.  Because delay in filing the postconviction petition did not affect the outcome, the district court did not abuse its discretion in denying the petition.  There is no showing, and we cannot identify a basis for holding, that the decision not to pursue the direct appeal was due to ineffective assistance of counsel.


The second issue is whether appellant is procedurally barred from raising claims he raised in his first postconviction petition.  A defendant is entitled to “one right of review by an appellate or postconviction court.”  McDonough v. State, 675 N.W.2d 53, 57 (Minn. 2004) (holding ineffective assistance of counsel claim barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (quotation omitted)).  A defendant is procedurally barred under Knaffla from raising issues that were raised and denied in a prior petition for postconviction relief.  Doppler v. State, 660 N.W.2d 797, 801-02 (Minn. 2003).  Here appellant argues that the durational departure violates his equal protection rights and that the district court erred in failing to provide substantial and compelling written reasons for the sentencing departure.  Both of these issues were raised and decided in his first petition for postconviction relief.  Appellant is barred from raising them in this petition.  See Boitnott v. State, 631 N.W.2d 362, 369 (Minn. 2001) (finding that the Knaffla rule applies to procedurally bar issues raised in prior postconviction petition). 


            Finally, appellant challenges his sentence under Blakely v. Washington, which holds that certain upward departures from established sentencing guidelines violate the Sixth Amendment right to a jury trial.  124 S. Ct. 2531 (2004).  This court recently reviewed the applicability of Blakely to postconviction petitions involving defendants whose sentences were finalized before Blakely and concluded that Blakely does not apply retroactively on collateral review.  See State v. Houston,__ N.W.2d __, 2004 WL 2796386, at *3 (Minn. App. 2004).  Since a petition for postconviction relief is a type of collateral review, appellant is not entitled to any relief under Blakely.


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