This opinion will be unpublished and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
Kelly James Leith,
State of Minnesota,
Filed July 5, 2005
File No. K2-01-1383
John M. Stuart, State Public
Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414
Mike Hatch, Attorney General,
1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom, Dakota County
Attorney, Shirley A. Leko, Assistant County Attorney, Dakota County Judicial
Center, 1560 West Highway 55, Hastings, MN
55033 (for respondent)
Considered and decided by Schumacher, Presiding
Judge; and Wright,
U N P U B L I S H E D O P I N I O N
Appellant Kelly Leith
pleaded guilty to making terroristic threats against his estranged wife and to kidnapping
her male friend, in violation of Minn.
Stat. §§ 609.25, subds. 1(3), 2(2), .713, subd. 1 (2000). The district court imposed the presumptive guidelines
sentence of 27 months’ imprisonment for the terroristic-threats offense and a
concurrent sentence of 130 months’ imprisonment for the kidnapping
offense. The 130-month sentence is an
upward durational departure from the
presumptive guidelines sentence of 108 months.
The district court based the upward departure on two aggravating factors:
(1) Leith’s violation of the victim’s zone of
privacy and (2) his particular cruelty toward the victim. We affirmed the sentence in State v. Leith, No. C8-02-577 (Minn.
App. July 2, 2002),
and the Minnesota Supreme Court denied Leith’s
petition for review on August
On August 18, 2004, Leith petitioned for postconviction relief, alleging that
his sentence was unconstitutional under Blakely
v. Washington. The district court
denied the petition, and this appeal followed.
D E C I S I O N
petition for postconviction relief is a collateral attack on the judgment,
which carries a presumption of regularity.
Pederson v. State, 649 N.W.2d
161, 163 (Minn.
2002). We will not disturb the decision
of the postconviction court absent an abuse of discretion. Dukes
v. State, 621 N.W.2d 246, 251 (Minn.
Blakely, the Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), that “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury[.]” 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490,
120 S. Ct. at 2362-63). The Blakely courtheld that the greatest sentence a judge can impose
is “the maximum sentence [that may be imposed] solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Id. at
2537. Accordingly, the 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. Blakely announced a new constitutional rule that was not dictated
by the holding of Apprendi. State
v. Houston, 689 N.W.2d 556, 558-59 (Minn. App. 2004), review granted (Minn.
Jan. 20, 2005).
Leith argues that he is entitled to postconviction relief
because the Blakely decision merely
interprets Apprendi and he did not
waive his right to a jury trial on the factors justifying his sentencing
maintains that he does not seek retroactive application of Blakely. Rather, he is
entitled to prospective application of Apprendi
in light of Blakely’s interpretation
of the Apprendi decision.
a threshold matter, Leith asserts that,
because he could not have raised his Apprendi
claim in his direct appeal, his claim is not waived. We agree.
As a general rule, “once a direct appeal has been taken, all matters raised in it,
and all claims known but not raised, will not be considered in postconviction
proceedings.” Id.at 559 n.1. But
in the interest of fairness, we may consider a postconviction claim if the
petitioner did not “deliberately and inexcusably” fail to raise it on direct
appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995).
Because, at the time of Leith’s direct appeal, we interpreted Apprendi to apply only to those sentences
that literally exceeded the “statutory maximum,” State v. McCoy, 631 N.W.2d 446, 450-51 (Minn. App. 2001), we cannot
conclude that Leith deliberately and inexcusably failed to raise the Apprendi claim in his direct appeal. Leith,
therefore, is not barred from doing so in a postconviction proceeding. Houston, 689
N.W.2d at 559 n.1.
Leith submitted his appellate brief, we
released our decision in Houston, which is
dispositive of the issue Leith raises here. In Houston, the defendant
was sentenced after Apprendiwas decided, and we determined that Blakely
was not “dictated” by the holding of Apprendi. Id.
at 558-60. Because Blakely does not affect the scope of the government’s power to
proscribe crime and because it is not a watershed rule of criminal procedure,
we concluded that Blakely does not fall within the exceptions to the
general rule of prospective application of new rules of law to cases on
collateral review. Id.at 560; see also Teague v. Lane, 489 U.S. 288, 307,
311, 109 S. Ct. 1060, 1073, 1075-76 (1989)
(enumerating exceptions to prospective applications).
Therefore, Blakely is not
subject to retroactive application on collateral review. Houston, 689 N.W.2d at 560.