This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Bajram Hajrusi,



Filed January 11, 2005


Toussaint, Chief Judge


Clay County District Court

File No. K8-99-2198



Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and


Lisa Borgen, Clay County Attorney, Courthouse, 807 North 11th Street, Moorhead, MN  56560 (for respondent);


Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This appeal is from an order denying appellant Bajram Hajrusi’s postconviction motion to correct his 2000 sentence for first-degree criminal sexual conduct.  Appellant argues that the district court erred in imposing a double upward durational departure based on findings made by the court rather than a jury, in violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because Blakely does not retroactively apply to appellant’s 1999 sentence, we affirm.



Hajrusi was convicted in March 2000 of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(e)(1) (1998), for sexually assaulting a 12-year-old girl who babysat Hajrusi’s children.  The presumptive sentence, given Hajrusi’s criminal history score of zero, was an executed sentence of 86 months.  The district court sentenced Hajrusi to 172 months, a double upward departure.  The court cited six aggravating factors to support the departure: (1) multiple penetrations; (2) threats Hajrusi made following the assault; (3) the predatory nature of the crime; (4) Hajrusi’s violation of a position of trust; (5) the victim’s particular vulnerability; and (6) the victim’s physical as well as psychological injury.

This court affirmed Hajrusi’s sentence on direct appeal.  State v. Hajrusi, No. C2-00-1171, 2001 WL 314913 (Minn. App. April 3, 2001).  After filing two postconviction petitions, Hajrusi filed a motion to reduce his sentence, citing the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  The district court ruled that the Blakely decision, which was issued on June 24, 2004, did not apply retroactively to Hajrusi’s 2000 sentence.   


            Hajrusi argues that the upward durational departure imposed on him based on the judge’s findings of aggravating factors violates his right to a jury trial under the Supreme Court’s holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).  The issue presented here is whether Blakely applies retroactively to Hajrusi’s 2000 sentence.  In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            In Blakely, the Supreme Court held that the Washington sentencing guidelines provision allowing the judge to depart upwards from the presumptive sentence violated the defendant’s constitutional right to a jury trial because the departure was based on a judicial finding rather than a finding by the jury.  124 S. 2537 (emphasis omitted).   The defendant, the Court held, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above the statutory maximum.  Id. at  2543.

            This court has recently held that durational departures under the Minnesota Sentencing Guidelines are subject to Blakely’s holding that the Sixth Amendment requires the jury to make the findings supporting an increase in sentence.  State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), pet. for rev. filed (Minn. Nov. 10, 2004).The first question is whether Blakely announced a new constitutional rule because its result “was not dictated by” existing precedent.  Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989) (quoted in Meemken v. State, 662 N.W.2d 146, 149 (Minn. App. 2003)).  It has been held that Apprendi announced a new constitutional rule.  Meemken, 662 N.W.2d at 149.  The question now is whether Blakely announced a new constitutional rule, or was “dictated by” Apprendi.  Hajrusi’s conviction was still on direct appeal when Apprendi was released, and his sentence would, therefore, be governed by Apprendi, and any subsequent holding that was “dictated by” Apprendi.  Although there is some dispute as to whether the result in Blakely was “dictated” by the holding of Apprendi, the more persuasive view is that it was not.

The holding of Apprendi was that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi v. N. J., 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (emphasis added).  The Court in Blakely further stated “Our precedents make [it] clear, . . . , that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Id. at 2537 (emphasis in original) (citations (to cases other than Apprendi)omitted).

            As evidenced by this quotation, the Blakely Court did not claim that Apprendi by itself provided sufficient grounds to hold that a presumptive guidelines sentence was the “statutory maximum” for purposes of Apprendi

However, there are statements, in both Apprendi and Blakely, that can be read both for and against the proposition that the Apprendi holding “dictated” the result in BlakelySee Blakely, 124 S. Ct. at 2549 (O’Connor, J., dissenting) (stating all guidelines sentences since Apprendi “arguably” open to collateral attack); Apprendi, 530 U.S. at 549-52, 120 S. Ct. at 2393-94 (O’Connor, J., dissenting) (noting court’s “apparent” holding could invalidate sentencing guidelines); cf. Blakely, 124 S. Ct. at 2547 n.1 (O’Connor, J. dissenting) (noting only one court before Blakely had applied Apprendi to guidelines scheme).

            As Justice O’Connor’s dissent in Blakely indicates, the majority of courts faced with the issue before Blakely had held that Apprendi did not invalidate upward departures under sentencing guidelines schemes based on judicial findings.  124 S. Ct. at 2547 n.1.  Two courts had reached the opposite conclusion.  United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000); State v. Gould, 23 P.3d 801, 809-14 (Kan. 20001).  This court had joined the majority in reading the Apprendi term “prescribed statutory maximum” in a literal fashion as referring to the statutory maximum, not the “sentencing-grid maximum,” or presumptivesentence.  See State v. McCoy, 631 N.W.2d 446, 450-51 (Minn. App. 2001).  Therefore, we cannot conclude that the result in Blakely was “dictated” by the Apprendi holding when the great majority of courts, including this court, had concluded otherwise.

            As a new constitutional rule, Blakely could be applied retroactively here if it fit within one of the two Teague exceptions.  The exceptions involve rules that forbid criminalizing certain conduct or “watershed rules of criminal procedure” that alter the understanding of “bedrock procedural elements” essential to the fairness of a particular conviction.  See Teague, 489 U.S. at 307, 311, 109 S. Ct. at 1073, 1076 (emphasis omitted).  The right to a jury determination of facts relevant only to sentencing does not fall within either of these exceptions.  See Meemken, 662 N.W.2d at 150 (holding Apprendi was not “watershed rules of criminal procedure” because it improved accuracy of sentence but not accuracy of a conviction).  Accordingly, this court has recently held that Blakely is “not a watershed rule subjective to retroactive application on collateral review.”  State v. Petschl, 688 N.W.2d 866, 875 (Minn. App. 2004), pet. for rev. filed (Minn. Dec. 19, 2004).

Hajrusi argues that the Apprendi/Blakely rule significantly enhances the accuracy of convictions because the sentence must now be considered an aspect of the conviction since it must be based on jury findings.  But there is no discussion in Blakely to support this argument.  In addition, Hajrusi’s argument would require this court to ignore the precedent of Meemken and now Petschl.  If Apprendi was not a “watershed rule[s] of criminal procedure,” as this court determined in Meemken, then Blakely, which vindicates the same right, is not either.  See id.

Hajrusi also argues that Blakely merely applied Apprendi to a new “factual scenario,” and therefore was not a new constitutional rule.  To support his argument, Hajrusi cites Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534 (1988), in which the Supreme Court held that the jury instruction violated the holding in Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965 (1985), and that Francis could be retroactively applied to the defendant’s case because it merely applied Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979) to a different fact scenario.

            Apprendi, however, involved the right to a jury finding of fact(s) that increase the sentence above the maximum of the permissible statutory range.  It did not involve the imposition of an upward departure in a determinate sentencing scheme.  Despite the Blakely majority’s reference to the presumptive sentence in the determinate sentencing scheme as a “statutory maximum,” most courts, had not foreseen this application of Blakely to a sentencing guidelines system.  Sentencing-guidelines schemes present a different legal context than the indeterminate statutory sentencing ranges (e.g., 0 to 40 years) at issue in Apprendi.  The upward guidelines departure involved in Blakely was not just a different factual scenario than the sentence at issue in Apprendi, which exceeded the “statutory maximum.”

            Because Blakely established a new constitutional rule that does not fall within either of the Teague exceptions, we conclude that it is not retroactively applicable to Hajrusi’s 2000 sentence.  Accordingly, the order denying his motion to reduce the sentence to the presumptive term must be affirmed.