This opinion will be unpublished and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
State of Minnesota,
Filed February 1, 2005
Sherburne County District Court
File No. K1-96-1210
Bradford Colbert, Legal Assistance to Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Crippen, Judge.
Appellant contends that he was entitled to postconviction relief because his 1998 guilty plea was premised on a misapprehension and because the sentencing court erred when imposing an upward departure requiring judicial fact-finding, in violation of his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the record establishes that appellant entered a knowing and voluntary plea and Blakely has no retroactive application to this postconviction appeal, we affirm.
Appellant Harland Blotti was accused of a 1996 act of sexual abuse of a child while he was employed as a farm hand by the child’s relatives and living in their home. He was represented at all times and pleaded guilty to first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (1994), and a related misdemeanor in exchange for a 220-month sentence.
A person convicted of certain first-degree and second-degree criminal sexual conduct offenses could have been sentenced to a mandatory 30-year penal commitment if certain factors were present, including a prior offense and a specified form of aggravating factor in the current offense. In 1985, appellant had been convicted of third-degree criminal sexual conduct, and two of the 1996 charges triggered possible application of the 30-year mandatory minimum. Thus, when appellant entered his plea on one of the charges, he understood that if he proceeded to trial, he was exposed to a 360-month mandatory sentence pursuant to Minn. Stat. § 609.346, subd. 2(b) (1994), provided that the district court determined at least one aggravating factor existed to support an upward departure.
D E C I S I O N
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 v. State, 621 N.W.2d 246, 251 (Minn. 2001). The scope of review is limited to determining whether there is sufficient evidence in the record to support the findings of the postconviction court. Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).
Appellant contends that there was not, in fact, an aggravating factor that would have justified an upward departure under the 30-year mandatory sentencing scheme. Thus, he contends that he was misled to believe otherwise. But the postconviction court specifically found that at the April 1998 sentencing hearing
the trial court adopted the aggravating factors set forth by the prosecutor as a basis for departure, namely: vulnerability of the victim(s) . . .; abuse of a position of trust and authority at the time the offense was committed; [and] perpetration of sexual abuse of each victim in the presence of the other victim.
More importantly, in a subsequent finding, the postconviction court noted that at the plea hearing, appellant stated that he understood “that if he went to trial and was convicted of [one first-degree sexual conduct charge] and the court found at least one aggravating factor coupled with his prior sexual assault conviction, he could have been subject to a prison sentence up to thirty (30) years . . . .” The record sustains these findings.
Appellant asserts that the record is flawed because it does not show his acknowledgement of an aggravating factor. But appellant’s explicit acknowledgement of an aggravating factor was not required in 1998. See State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996) (holding that defendant may waive the right to be sentenced under the sentencing guidelines if the waiver is voluntary, knowing, and intelligent). The defendant must have been advised of his right to be sentenced under the guidelines, which includes the possibility of a departure, he must have had the opportunity to consult counsel, and the trial court must have approved the waiver. Id. The Givens court also noted that an examination by the sentencing court, consistent with the approach of Minn. R. Crim. P. 15, would meet this requirement. Givens, 544 N.W.2d at 777. Here, at the plea hearing, appellant was questioned according to rule 15, which supports the conclusion that his plea was knowingly, voluntarily, and intelligently entered under Givens.
Appellant argues that two of the factors the trial court adopted are no longer adequate cause for upward departure. See Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003) (holding that victim’s vulnerability, both as to age and defendant’s position of authority or trust, were inappropriate bases for departure where those facts were already taken into account by legislature in determining degree of seriousness of offense). It is not evident that Taylor affects a 1998 plea, and in any case, aggravating factors revealed on the record in 1998 included not only vulnerability of the victim and abuse of a position of authority, but also the commission of each act in the presence of the other victim.
It being evident that appellant benefited from his plea agreement, avoiding trial and a possible 30-year term of imprisonment, the postconviction court did not err in determining from the record that appellant knowingly, voluntarily, and intelligently entered his guilty plea.
Appellant argues that this court wrongly decided a recent case denying retroactive effect of Blakely v. Washington, 124 S. Ct. 2531 (2004). See State v. Petschl, 688 N.W.2d 866 (Minn. App. 2004) (denying retroactive effect of Blakely on cases finally determined before Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)), review denied (Minn. Jan. 20, 2005). Contrary to the holding in Petschl, appellant argues that Blakely is a “watershed rule of criminal procedure” because it increases the accuracy of the underlying criminal proceeding by requiring a jury determination—beyond a reasonable doubt—of any facts used to support an upward durational departure. See Teague v. Lane, 489 U.S. 288, 311 (1989) (announcing watershed rules, those that alter the basic protections essential to fairness of a criminal conviction, as one of two exceptions to the general rule against retroactive application of a new constitutional rule).
In an earlier holding that Apprendi was not of watershed magnitude, this court recognized Apprendi was distinctive for the fact that it did not deal with the conviction process but only improved the accuracy of sentencing. See Meemken v. State, 662 N.W.2d 146, 149-50 (Minn. App. 2003) (citing United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001)). In Petschl, 688 N.W.2d at 875, we recognized that Blakely, like Apprendi, deals only with the process of sentencing. We decline to question the rationale of Petschl, and we affirm appellant’s conviction and sentence.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.