This opinion will be unpublished and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
Michael Daniel Vanhouse,
Filed July 19, 2005
Michael D. Vanhouse,
#148732, 970 Pickett Street North,
Bayport, MN 55003-1490
(pro se appellant)
Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Timothy R. Faver,
Beltrami County Attorney,
Shari R. Schluchter, Chief Assistant County
Attorney, 619 Beltrami Avenue, Suite 40, Bemidji, MN 56601 (for respondent)
Considered and decided by Shumaker, Presiding
Judge, and Willis,
P U B L I S H E D O P I N I O N
Michael Daniel VanHouse was convicted on August 11, 2000, of first-degree
criminal sexual conduct and sentenced to 30 years in prison, the statutory
maximum sentence under Minn. Stat. § 609.342, subds. 1(a), 2 (2000). His conviction was affirmed on direct appeal
to this court. State v. Vanhouse, 634 N.W.2d 715 (Minn.
App. 2001), review denied (Minn. Dec. 11,
2001). In 2004, appellant filed a
postconviction petition, asking for correction of his sentence in accordance
with Blakely v. Washington, 124 S. Ct. 2531 (2004).
Appellant challenges the district court’s denial of his request for
appellant is not entitled to retroactive application of the Blakely holding on collateral review,
the district court did not abuse its discretion by denying his petition. We therefore affirm.
D E C I S I O N
petition for postconviction relief is a collateral attack on a judgment which
carries a presumption of regularity and which, therefore, cannot be lightly set
aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).
The postconviction court’s decision will not be reversed absent an abuse
of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).
was sentenced in 2000, after the United States Supreme Court issued its
decision in Apprendi v. New
Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000). In that case, the court stated that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490, 120
S. Ct. at 2362-63. Based on this, appellant was sentenced to 30
years, the statutory maximum, rather than an enhanced 40-year sentence under
Minn. Stat. § 609.108 (2000), the predatory offender statute.
the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct.
2531 (2004). In Blakely, the court reaffirmed Apprendi,
but stated that for Apprendi purposes,
the statutory maximum 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 the “statutory maximum” is
the presumptive sentence under a determinate sentencing scheme. The Minnesota Supreme Court acknowledged the
applicability of Blakely to the
Minnesota Sentencing Guidelines in State
v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam order holding
that imposition of upward durational departure based on aggravating factors not
considered by jury was violation of defendant’s rights under Blakely, and stating that full opinion
will follow). Appellant therefore argues
that his sentence should be corrected to the presumptive sentence of 98 months.
defendant is entitled to the benefit of a new federal rule of criminal law or
procedure that is announced while his or her case is pending on direct
review. O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).
A case is pending “until such time as the availability of direct appeal
has been exhausted, the time for a petition for certiorari has elapsed or a
petition for certiorari with the United States Supreme Court has been filed and
finally denied.” Id. Under these guidelines, appellant’s direct
appeal rights were exhausted as of March 2002.
See Meemken v. State, 662
N.W.2d 146, 149 (Minn. App. 2003) (stating that new constitutional rule cannot be
applied retroactively to cases on collateral review, except as permitted in Teague v. Lane, 489 U.S. 288, 109 S. Ct.
Under Teague, a new constitutional rule may be
applied retroactively in two limited situations: (1) if the new rule places
certain kinds of individual conduct beyond the power of the government to
criminally proscribe; or (2) if the new rule represents a “watershed rule” of
criminal procedure that changes the notions of basic procedures essential to
the fairness of a criminal conviction. State v. Petschl, 692 N.W.2d 463, 471
(Minn. App. 2004), review denied (Minn. Jan. 20, 2005). The first exception is not applicable
here. In Petschl, 692 N.W.2d at 472, this court stated that both Apprendi and Blakely were not concerned with increasing the reliability of the
determination of guilt, the rationale for the second Teague exception, but were concerned only with accuracy in
sentencing and thus were not subject to retroactive application on collateral
More specifically on point, in State v. Houston, 689 N.W.2d 556, 560
(Minn. App. 2004), review granted
(Minn. argued May 5, 2005), this court concluded that a defendant who was
sentenced after Apprendi but whose
direct appeal was final before Blakely,
could not claim retroactive application of Blakely
on collateral review. We reasoned that Blakely was a new rule and not dictated by
the holding of Apprendi, but that it
also did not fall within the Teague
exceptions, because it did not change procedural rules designed to enhance the
fairness of the conviction. Houston, 689 N.W.2d at 559-60.
therefore conclude that because appellant is not entitled to retroactive
application of Blakely, the district
court did not abuse its discretion by denying his petition for postconviction