This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-941

 

William T. Thompson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed March 22, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 93013570

 

 

 

 

 

Craig E. Cascarano, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for 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 Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

 

 

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

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

            Appellant William Troy Thompson appeals from an order denying postconviction relief, arguing that his 1993 sentence for first-degree criminal sexual conduct was unconstitutional under Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm.

FACTS

In February 1993, appellant William Troy Thompson was convicted of first-degree criminal sexual conduct.  The sentencing judge, based on his own findings regarding the vulnerability of the victim, the particular cruelty with which Thompson assaulted the victim, and the fact that Thompson was “a dangerous and career offender,” sentenced Thompson to 300 months, an upward durational departure from the presumptive 146 months in prison.  Thompson appealed on evidentiary issues, we affirmed, and the supreme court denied review.  State v. Thompson, 520 N.W.2d 468 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). 

In October 2003, Thompson petitioned the district court for postconviction relief under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), arguing that the sentencing judge’s findings regarding aggravating circumstances should have been tried to a jury.  The district court denied Thompson’s petition.  Three months later, the United States Supreme Court decided Blakely v. Washington, 124 S.Ct. 2531 (2004), and this appeal followed.

 

 

D E C I S I O N

Thompson first argues that because the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),and Blakely v. Washington, 124 S.Ct. 2531 (2004) seven and eleven years respectively after his 1993 conviction, he could neither have raised nor even known about the sentencing concerns at issue in those cases and on appeal here.  Consequently, he claims that he never waived his right to raise those issues on appeal.  We agree.

We decide questions of waiver as a matter of law where the facts are not in dispute.  In re Estate of Sangren, 504 N.W.2d 786, 790 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).  Generally, matters raised (or matters known, yet not raised) on direct appeal are waived for purposes of postconviction proceedings.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  But when a petitioner has neither “deliberately” nor “inexcusably” failed to raise the issue on direct appeal, we may review his postconviction claim.  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995).  Because Thompson took his direct appeal in 1993, seven and eleven years respectively before the Court decided Apprendi and Blakely, it was impossible for him to have raised (or even to have had knowledge about) the precise sentencing issue in those cases and on appeal here.  The rule barring further postconviction review in Knaffla, therefore, does not apply to Thompson’s case.

Thompson next argues that because the sentencing judge imposed on him an upward durational departure to 300 months based on aggravating circumstances not found by a jury, the sentence constituted a Sixth Amendment violation of his right to a jury trial under Blakely.  We disagree.

Retroactive application of a decision is an issue that we review de novo.  State v. Houston, 689 N.W.2d 556, 559 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  In Blakely, the Court stated 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.”  Blakely, 124 S. Ct. at 2537.  This means that a defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at  2543.  We have held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  Thus, a defendant in our state courts has a right under Blakely to sentencing based exclusively on either the jury’s findings or the defendant’s admissions. 

But both Apprendi and Blakely constitute “new rules” of federal constitutional procedure.  Houston, 689 N.W.2d at 559.  Generally, a new rule applies only to matters pending on direct review when the rule is announced.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  We have held that Apprendi does not apply retroactively on postconviction review.  Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003).  Recently, we determined that Blakely is also not subject to retroactive application to cases that were final before Apprendi was released.  State v. Petschl, 692 N.W.2d 463, ___, 2004 WL 3131308, at *7 (Minn. App. Nov. 23, 2004), review denied (Minn. Jan. 20, 2005).  Thompson’s conviction was final before Apprendi was released.

“A case is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.” O’Meara, 679 N.W.2d at 339 (quotation omitted).  Again, we affirmed, and the supreme court denied review of Thompson’s convictions in 1994.  State v. Thompson, 520 N.W.2d 468 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).  Thompson did not petition for a writ of certiorari from the United States Supreme Court within the 90-day timeframe required by U.S. Sup. Ct. R. 13.1.  Thus, his conviction became final in January 1995.  The Court decided Apprendi in June 2000 and Blakely in June 2004.  Because Thompson’s case was final when Apprendi and Blakely were decided, the new rules established by those cases are inapplicable.  Thompson’s challenge to the constitutionality of his sentence, therefore, must fail.

            Affirmed.



[1] The supreme court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, No. C6-03-362 (Minn. argued Nov. 30, 2004).  By order filed in Shattuck just a few days earlier, on December 16, the supreme court held that the imposition of an upward durational departure based on aggravating factors not considered by the jury was a violation of the defendant’s rights as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.