This opinion will be unpublished and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
Jerrad William Wailand,
State of Minnesota,
Beltrami County District Court
File Nos. K3-00-1130, K3-01-568
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant State Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Timothy R. Faver, Beltrami County Attorney, Beltrami County Courthouse, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.
Appellant challenges the district court’s denial of postconviction relief, arguing that his sentence imposed in 2000 for attempted third-degree criminal sexual conduct violates the Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the Blakely decision is not subject to retroactive application on collateral review, we affirm.
July 18, 2000, appellant Jerrad Wailand pleaded guilty to attempted
third-degree criminal sexual conduct, a violation of Minn. Stat. §§ 609.17,
subd. 1, .344, subd. 1(c) (1998). At the
sentencing hearing on August 28, the district court imposed a sentence of 60 months’
imprisonment, stayed its execution, and placed Wailand on probation for seven
and one-half years. The 60-month stayed
sentence is an upward durational departure and a downward dispositional
departure from the presumptive guidelines sentence of 24 months’ imprisonment.
In June 2001, Wailand admitted violating the conditions of his probation by initiating sexual contact with two girls under the age of 16. Based on this conduct, Wailand pleaded guilty to two counts of third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subd. 1(b), (d) (2000). After accepting the guilty pleas, the district court revoked Wailand’s probation on the 2000 offense and executed the 60-month sentence previously imposed. The district court then sentenced Wailand to two executed terms of 36 months’ imprisonment for the new offenses and ordered him to serve all of the sentences consecutively.
2003, Wailand filed his first petition for postconviction relief, seeking
withdrawal of his 2001 guilty pleas. The
district court denied the petition without an evidentiary hearing, and we
affirmed the ruling. Wailand v. State, A03-803, 2004 WL
727415, at *3 (
2004, Wailand filed his second petition for postconviction relief, seeking
resentencing under Blakely v. Washington,
Wailand argues that he is
entitled to postconviction relief because the 2000 sentence, which was an upward
durational departure, was imposed in violation of his right to a jury trial
under Blakely v. Washington, 124
As a threshold matter, we must determine whether Wailand’s Blakely challenge to his 2000 sentence was preserved for appeal. In his 2004 petition for postconviction relief, Wailand did not expressly challenge the 2000 sentence. Rather, referencing only the file numbers for his 2001 convictions, Wailand generally challenged “his sentence” under Blakely. Because the district court interpreted Wailand’s petition as a challenge to the sentences imposed for the 2001 offenses, it did not address whether Wailand’s 2000 sentence violated the right to a jury trial under Blakely. Wailand now contends that, although the petition for postconviction relief is unclear, it should be interpreted liberally to include a challenge to the 2000 sentence, which was an upward durational departure from the sentencing guidelines. We agree.
Generally, a “court shall liberally construe [a
postconviction] petition and any amendments thereto and shall look to the
substance thereof and waive any irregularities or defects in form.”
Wailand would not have a cognizable Blakely argument if we did not construe his petition to include a challenge to his 2000 sentence. We, therefore, interpret Wailand’s pro se petition for postconviction relief liberally and consider the Blakely claim even though it was not raised before the district court.
In Blakely, the United States Supreme Court refined the rule announced
in Apprendi v.
argues that, because his sentence was not
final when the United States Supreme Court decided Apprendi, and because
Blakely was merely an extension of the holding in Apprendi, he is
entitled to benefit from the rule announced in Blakely. After
Wailand submitted his appellate brief, we released our decision in State v. Houston, 689 N.W.2d 556 (Minn.
App. 2004), review granted (
Wailand is entitled to relief under Blakely
depends on whether hissentence was
final when the Blakely decision was released. “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,