This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Scott Brian LaCroix,


Filed July 19, 2005

Reversed and remanded

Minge, Judge


Hennepin County District Court

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 appellant)


John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for respondent)


            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.


  U N P U B L I S H E D   O P I N I O N


MINGE, Judge


            The 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 remand.



            In 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 follows.



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 granted (Minn. 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 BlakelyId. 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.  See State 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 in Blakely.[1]

Reversed and remanded.

[1] Appellant argues that even if Blakely applied on collateral review, the proper remedy for a Blakely violation is to convene a sentencing jury.  Because of our ruling that Blakely does not apply on collateral review, we do not reach this issue.