This opinion will be unpublished and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
Mark Jeffery Dunker, petitioner,
Otter Tail County District Court
File No. K0-97-801
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
David J. Hauser,
Otter Tail County Attorney,
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 (
D E C I S I O N
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).
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
“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
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.
however, that the holding in Blakely
should be applied retroactively based on the first exception in Teague, which was further articulated in
Penry v. Lynaugh, 492