This opinion will be unpublished and

may not be cited except as provided by

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






Gregory Phillip Kolk, petitioner,


State of Minnesota,


Filed April 5, 2005


Minge, Judge


Dakota County District Court

File No. K1-02-1126



Gregory Phillip Kolk, Minnesota Correction Facility, 7600 525th Street, Rush City, MN 55069 (pro se appellant)


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


James C. Backstrom, Dakota County Attorney, Joseph K. Boche, Assistant County Attorney, 1560 Highway 55, Dakota County Judicial Center, Hastings, MN 55033 (for respondent)


            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*



 U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges the district court’s denial of his postconviction relief on the ground that his sentence violates his Sixth Amendment rights as expressed in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because we find that appellant’s sentence was not an upward departure from the sentencing guidelines, and that even if it were, Blakely does not apply retroactively to appellant’s sentence, we affirm.


On April 9, 2002, appellant Gregory Phillip Kolk was charged with possession of a firearm by an ineligible person, in violation of Minn. Stat. §§ 624.713, subd. 1(b), 2; 609.11, subd. 5(b); and 609.101 (2002).  At the plea and sentencing hearing appellant pleaded guilty.  He stated that he had been convicted of a crime of violence and had possessed a firearm within ten years of the restoration of his civil rights or the expiration of his sentence or disposition.  On April 29, 2003, appellant was sentenced to 60 months in prison.

            In August 2004, appellant petitioned for postconviction relief on the ground that his sentence violated his Sixth Amendment rights.  The district court denied appellant’s petition for postconviction relief without a hearing.  The district court concluded that appellant’s Sixth Amendment rights as articulated in Blakely v. Washington were not violated because appellant was sentenced to the statutory minimum of 60 months.  124 S. Ct. 2531 (2004).  The district court also concluded that Blakely does not apply to appellant’s sentence because appellant’s sentence was final before Blakely was decided and because Blakely does not apply retroactively.  This appeal followed.        



The first issue is whether appellant’s sentence was an upward departure from the presumptive sentence of 36 months in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).

In Blakely, the United States Supreme Court concluded that if factual findings are required to justify an increased sentence, those facts must be found by a jury rather than a judge and proven beyond a reasonable doubt.  Id. at 2536-37.  This court has held that Blakely applies to upward durational departures under Minnesota’s sentencing guidelines.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).[1]  Thus only an upward departure triggers Blakely, and Blakely is not applicable if the court imposes the presumptive sentence. 

Minn. Stat. § 624.713, subd. 1(b) (2002), states that a person may not possess a firearm if he or she is “a person who has been convicted of . . . a crime of violence unless ten years have elapsed since the person has been restored to civil rights or the sentence or disposition has expired, whichever occurs first.”  Minn. Stat. § 609.11, subd. 5(b) (2002), the statute appellant was charged with violating, states that “[a]ny defendant convicted of violating section 609.165 or 624.713, subdivision 1, clause (b), shall be committed to the commissioner of corrections for not less than five years.” 

Although appellant cites to both paragraphs (a) and (b) of Minn. Stat. § 609.11, subd. 5, he appears to argue that he was convicted under paragraph (a).  This is erroneous.  As previously observed, appellant was charged with violating paragraph (b), pleaded guilty to that charge, admitted facts consisting of a violation of paragraph (b), and was sentenced under paragraph (b).  The minimum sentence for possession of a firearm as an ineligible person under paragraph (b) is five years, or 60 months.  Appellant received that sentence.  Therefore, the sentencing court did not impose an upward departure from the presumptive sentence that might trigger Blakely.[2]


The second issue is whether the Supreme Court’s Blakely decision should be applied retroactively to invalidate appellant’s sentence.  Appellant contends that Blakely did not announce a new rule, but merely applied the rule announced by Apprendi v. New Jersey, which the Supreme Court decided before appellant’s conviction was final.  530 U.S. 466, 120 S. Ct. 2348 (2000).

            We review de novo whether or not a decision applies retroactively.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).  If a federal decision constitutes a new rule, the new rule will not be applied retroactively to a conviction that is final unless it fits into certain exceptions.  Id. at 339.   A decision is a new rule if it “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or is not “dictated by precedent existing at the time the defendant’s conviction became final.”  Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989) (emphasis omitted).  This court has held that the Blakely decision created a new rule that does not fit into one of the exceptions and will not be applied retroactively on collateral review to convictions that were final before Blakely was decided.  State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  Appellant was convicted in April of 2003 and he did not appeal his decision within the 90 days allowed by law.  See Minn. R. Crim. P. 28.02, subd. 4(3).  Blakely was decided on June 24, 2004.  Because appellant’s conviction was final and his right of direct appeal expired before Blakely was decided, the rule in Blakely would not apply to appellant even if the district court had made an upward departure based on facts not found by the jury.


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

[1] The Minnesota Supreme Court granted review in Conger, but stayed additional processing of that matter, pending a final decision in State v. Shattuck, 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.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).  The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy.  Id.

[2] This court recently held that under certain circumstances the imposition of the minimum sentence under Minn. Stat. § 609.11, subd. 5(a) for the possession of a firearm while committing certain offenses could be an upward durational departure based on judicial findings in violation of BlakelyState v. Barker, 692 N.W.2d 755 (Minn. App. 2005).  The holding in Barker does not apply because the present case deals with paragraph (b) of subdivision 5 and because the factual and legal situations are substantially different.