This opinion will be unpublished and

may not be cited except as provided by

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






Mark Jeffery Dunker, petitioner,





State of Minnesota,



Filed August 9, 2005


Randall, Judge


Otter Tail County District Court

File No. K0-97-801



Mark Dunker, (#177920) MCF-Stillwater, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)


Michael Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


David J. Hauser, Otter Tail County Attorney, 121 West Junius Avenue, Suite 320, Fergus Falls, MN  56537 (for respondent)


            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from an order denying his postconviction petition challenging a 1998 sentence for first-degree criminal sexual conduct, appellant argues that the upward durational departure to the statutory maximum based on judicial findings violated his right to a jury trial under Blakely, and that Blakely should apply to his sentence.  We affirm. 


            In 1998, appellant Mark Dunker was convicted of first-degree criminal sexual conduct and sentenced to an upward durational departure to the statutory maximum.  Appellant appealed, and this court affirmed the conviction in State v. Dunker, No. C7-98-1231 (Minn. App. Apr. 6, 1999), review denied (Minn. May 26, 1999).  On July 28, 2004, appellant filed a petition for postconviction relief, arguing that he was entitled to relief under Blakely v. Washington, 124 S. Ct. 2531 (2004).  The district court denied the petition, concluding that Blakely did not announce a new rule of law, but rather extended the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  The district court further concluded that even if Blakely did announce a new rule of law, appellant’s conviction was final at the time the new rule was announced.  This appeal followed.


            Appellant argues that his Sixth Amendment rights under Blakely and Apprendi were violated when his sentence was increased based on facts not found by a jury beyond a reasonable doubt.  A Blakely argument raises a constitutional question, which this court reviews de novo.  See State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).

            In Blakely, the Supreme Court held that the greatest sentence that a judge may 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.”  Blakely, 124 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction that increases the sentence above this maximum.  Id. at 2543; Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. 

            “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”  Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  The exceptions apply where the new rule (1) “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or (2) “requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.”  Id. at 311, 109 S. Ct. at 1075-76 (quotations omitted).  A case becomes final when “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.”  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).

            Here, the availability of direct appeal of appellant’s conviction was exhausted on May 26, 1999, when the Minnesota Supreme Court denied review.  The time for appellant to petition the United States Supreme Court expired 90 days later.  See Sup. Ct. R. 13.1 (stating that “[a] petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed . . . within 90 days after entry of the order denying discretionary review.”).  Apprendi was decided on June 26, 2000, and Blakely was decided on June 24, 2004.  Accordingly, appellant’s case became final well before both Apprendi and Blakely were decided.

            Appellant argues, however, that the holding in Blakely should be applied retroactively based on the first exception in Teague, which was further articulated in PenrySee Penry v. Lynaugh, 492 U.S. 302, 305, 109 S. Ct. 2934, 2939 (1989) (stating that the first Teague exception also “applies to new rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.”), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 310, 122 S. Ct. 2242, 2246 (2002).  We disagree.  A petition for postconviction relief is a collateral attack on a conviction.  Meemken v. State, 662 N.W.2d 146, 148 (Minn. App. 2003).  This court recently stated that the rule announced in Blakely does not retroactively apply on a collateral review of a conviction that was final before the Supreme Court decided ApprendiState v. Petschl, 692 N.W.2d 463, 472 (Minn. App. 2004) (concluding that “[b]ecause the Blakely rule does not improve the accuracy or fairness of a trial, . . . it is not a watershed rule subject to retroactive application on collateral review”), review denied (Minn. Jan. 20, 2005).  Appellant did not articulate how Teague applies in his case, but merely states that it does not.  We find no caselaw supporting the argument that Blakely would apply on these facts.