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be unpublished and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
State of Minnesota,
Scott Brian LaCroix,
July 19, 2005
Reversed and remanded
File No. 98057764
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf,
Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant Public Defender, 2221
University Avenue S.E., Suite 425, Minneapolis,
and decided by Minge,
Presiding Judge; Lansing,
Judge; and Halbrooks,
U N P U B L I S H E D O P I N I O N
state appeals from an order granting respondent’s postconviction petition to
reduce his sentence to the presumptive sentence under the guidelines. Because Blakely
v. Washington, 124 S. Ct. 2531 (2004), is
not subject to retroactive application on collateral review, we reverse and
September 1999, a jury found respondent Scott B. LaCroix guilty of offering a
forged check, in violation of Minn. Stat. § 609.631, subd. 3 (1998). According to the Minnesota sentencing guidelines and the
respondent’s criminal history score, the presumptive sentence is 23 months. Minn.
Sent. Guidelines § IV. The district
court departed from the sentencing guidelines and sentenced respondent to 120
months, the statutory maximum for respondent’s conviction, under the
career-offender statute. Minn. Stat §§ 609.1095,
subd. 4, .631, subds. 3, 4 (1998). The
district court relied on respondent’s 12 prior felony convictions.
Respondent filed a
direct appeal, arguing that the evidence was insufficient to support the
conviction, the district court abused its discretion in sentencing respondent
under the career-offender statute, the prosecutor committed misconduct because
of statements made to the jury, and he was denied the effective assistance of
counsel. State v. LaCroix, No. C1-99-2188 (Minn. App. Aug. 8, 2000), review denied (Minn. Sept. 13, 2000). This court affirmed on all grounds. Id. Respondent then filed a postconviction
petition, which he appealed to this court, arguing that his sentence was
prohibited by the principles announced in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), he was sentenced subject to an ex post facto law, and he did not
exhibit the required “pattern of criminal conduct” under that law. State
v. LaCroix, C2-02-1773 (Minn. App. May 6, 2003), review denied (Minn.
Aug. 5, 2003). This court again affirmed
respondent’s conviction and found that his sentence did not violate the holding
of Apprendi because his sentence did
not exceed the statutory maximum. Id. In 2004, respondent filed a second
postconviction petition, seeking to reduce his sentence after the United States
Supreme Court decided Blakely v.
Washington, 124 S. Ct. 2531 (2004).
The district court granted respondent’s motion to amend his sentence
under Blakely. The district court found that respondent’s
enhanced sentence based on a judicial finding of a pattern of criminal conduct
was unconstitutional under Blakely. The district court reasoned that because Blakely was a further extension of the Apprendi holding, that Blakely applied to any case pending at
the time of the Apprendi decision. The district court denied the state’s motions
to convene a sentencing jury and to stay imposition of the district court’s
order re-sentencing of respondent until after the state had an opportunity to
appeal the district court’s decision. On
December 3, 2004, the district court re-sentenced respondent to 26 months with
credit for time served. The state’s appeal
E C I S I O N
The issue in this case is
whether the rule announced in Blakely v. Washington, 124 S.
Ct. 2531 (2004), applies to respondent’s conviction, which was
final before Blakely was
decided. This court addressed this issue in State v. Houston, 689 N.W.2d 556 (Minn. App. 2004), review
Jan. 20, 2005). In Houston, a defendant who was sentenced after Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348 (2000), was decided, filed a postconviction petition arguing that
his sentence should be scrutinized under Blakely. Id. at 558-59. This court first found that Blakely announced a new constitutional
rule that was not dictated by the holding of Apprendi. Id.
at 559-60. We also found that Blakely does not fall within the
exceptions to the general rule of prospective application because it does not
affect the scope of government power to proscribe crime and it is not a
watershed rule of criminal procedure. Id.
at 560. We then held that Blakely is not subject to retroactive
application on collateral review. Id.
Respondent argues that the
district court did not abuse its discretion in finding that Blakely applies to his sentence because Blakely did not announce a new rule, but
merely extended Apprendi. First, we note that we review the district
court’s decision de novo because the determination of whether a decision
applies retroactively is a legal question.
v. Costello, 646 N.W.2d 204, 207 (Minn.
2002). Second, we will follow our
decision in Houstoneven though the supreme court has granted review.
According to Houston,
if respondent’s case was final when Blakely
was decided, he does not receive the benefit of the Blakely decision. 689 N.W.2d
at 560. “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 (Minn. 2004)
(alteration in original) (quoting Griffith
v. Kentucky, 479 U.S.
314, 321 n.6, 107 S. Ct. 708, 712 n.6 (1987)).
Respondent’s conviction was final on December 12, 2000, 90 days after
the Minnesota Supreme Court denied review of his appeal. See Sup. Ct. R. 13 (stating that petition for writ
of certiorari to United States Supreme Court must be filed within 90 days after
entry of the judgment from a state court of last resort). But Blakely
was decided on June 24, 2004. Thus,
respondent’s conviction was final before Blakely
was decided, and he is not entitled to application of the rule established
Reversed and remanded.