This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Richard Alan Folden, petitioner,
Filed April 26, 2005
Clay County District Court
File No. K3-92-1453
Richard A. Folden, OID #109399, MCF –
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Lisa Borgen, Clay County Attorney, Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.
Appellant challenges the district court’s denial of his motion for correction of his sentence on the ground that his sentence violates the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Because appellant is not entitled to retroactive application of Blakely on postconviction review, we affirm.
In January 1993, a jury convicted appellant Richard A. Folden of one count of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(v) (1990). Because he had two previous criminal-sexual-conduct convictions, appellant was sentenced to 37 years in prison under the Minnesota Repeat Offender Statute, Minn. Stat. § 609.346, subd. 2a(a)(2) (1990).
has brought four previous appeals to this court. Appellant first argued insufficiency of the
evidence immediately after his conviction.
On that direct appeal, we affirmed his conviction, and the supreme court
denied review. State v. Folden,
No. C8‑93-1025 (Minn. App. Jan. 26, 1994) (order op.), review
denied (Minn. Mar. 15, 1994). In
1997, appellant filed a petition for postconviction relief and argued, among
other things, that his sentence violated the double-jeopardy clause and
constituted cruel and unusual punishment.
The district court denied his petition; we affirmed. Folden v. State, No. C8-97-1244, 1997
WL 793306 (Minn. App. Dec. 30, 1997). In 1999, appellant filed a second
postconviction petition in which he argued a variety of conflicts and biases in
his sentencing. That petition was
summarily denied by the district court, and we again affirmed. Folden v. State, No. C9-99-1905, 2000
WL 1100108 (
August 2004, appellant moved for correction of his sentence pursuant to Minn.
R. Crim. P. 27.03, subd. 9, arguing that the Supreme Court’s decision in Blakely
v. Washington, 124
seeks to benefit from the United States Supreme Court’s decision in Blakely by
arguing that his 37-year sentence violates the Sixth Amendment of the United
States Constitution and that it should be reduced to the presumptive sentence
in place at the time of his sentencing.
Implicit in appellant’s argument is that Blakely applies
retroactively to his conviction. The
determination of whether a decision applies retroactively is a legal question,
which we review de novo. State v. Petschl,
692 N.W.2d 463, 470 (Minn. App. 2004), review
the Supreme Court applied Apprendi’s holding that any fact that increases the penalty for a crime
beyond the statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt. Blakely v.
have previously explained that Apprendi does not retroactively apply to
collateral challenges such as petitions for postconviction relief. Meemken v. State, 662 N.W.2d 146, 148
court has held that “[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 v. State,
679 N.W.2d 334, 339 (
Appellant has also argued, along with a fellow inmate, that certain prison policies violated the double jeopardy clause, the prohibition against bills of attainder, and the prohibition against involuntary servitude found in the federal constitution. We affirmed the district court’s dismissal of those claims. Sutherlin v. State, Nos. C7-99-915, C9‑99‑916, 1999 WL 1023928 (Minn. App. Nov. 9, 1999).