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be unpublished and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,
August 16, 2005
Hon. Thomas M.
File No. KX94287
Richard Willette, MCF – Stillwater, 970 Pickett Street North, Bayport,
(pro se appellant)
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
David J. Hauser, Ottertail County Attorney, Suite 320, 121 West Junius Avenue, Fergus Falls, MN
and decided by Peterson,
Presiding Judge, Halbrooks,
Judge, and Stoneburner,
U N P U B L I S H E D O P I N I O N
Appellant Richard Willette
challenges the denial of his petition for postconviction relief challenging a
sentence for criminal sexual conduct. Appellant
argues that the upward durational departure from the presumptive guidelines
sentence based on judicial findings of aggravating factors violated his right
to a jury trial under Apprendi and Blakely.
Appellant argues that those decisions apply retroactively to his
sentence and that he received ineffective assistance of counsel, who failed to
advise him of his right to a jury trial on sentencing matters under those
decisions. Because appellant’s
ineffective-assistance-of-counsel claim is without merit and the decisions he
cites do not apply retroactively, we affirm.
28, 1994, appellant was found guilty of nine counts of criminal
sexual conduct in the first degree under Minn. Stat. § 609.342 (1990). He was sentenced in March 1995 to 480 months,
an upward durational departure from the sentencing guidelines based on the
judge’s findings that he was a patterned sex offender and that his crimes
involved severe aggravating factors.
Appellant’s sentence was affirmed on direct appeal in March 1996. State
v. Willette, No. C4-95-1088 (Minn. App. Mar. 12, 1996), review denied (Minn. May 21, 1996).
Appellant petitioned for
postconviction relief on October
18, 2004. The district court
denied the petition. This appeal
E C I S I O N
Petitions for postconviction relief are collateral attacks on
judgments that carry presumptions of regularity and, therefore, cannot be
lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).
This court will not disturb the decisions of a postconviction court
absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). The scope of review is limited to determining
whether there is sufficient evidence in the record to support the findings of
the postconviction court. Doughman v. State, 351 N.W.2d 671, 674
(Minn. App. 1984), review denied
(Minn. Oct. 16, 1984).
Appellant argues that he is entitled to postconviction relief
because the upward durational departure imposed by the sentencing court
violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004), and Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000). Appellant contends that because he did not
knowingly and intelligently waive his right to a jury determination of the
sentencing enhancement, his sentence should be reduced to the presumptive
guidelines sentence, resulting in his immediate release.
In Blakely, the Supreme Court held that an upward sentencing departure
is unconstitutional unless the facts on which the departure was based were
admitted by the defendant or found beyond a reasonable doubt by a jury. Blakely,
124 S. Ct. at 2537 (extending the holding in Apprendi that “other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.” 530 U.S. at 490, 120 S. Ct.
at 2362-63). Minnesota
courts have concluded that Blakely
applies to the Minnesota
sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004); State
v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn.
Dec. 22, 2004). Because
appellant’s conviction and sentences were final before Apprendi and Blakely were
decided, the decisions would have to apply retroactively in order for appellant
to obtain postconviction relief. This
court has previously held that neither Apprendi
nor Blakely applies retroactively on
collateral review of a sentence. State v. Petschl, 692 N.W.2d 463, 472
(Minn. App. 2004), review denied (Minn. Jan. 20, 2005)
(holding that Blakely does not
announce a watershed rule subject to retroactive application on collateral
review of convictions that were final before the release of Apprendi); Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003) (holding that
Apprendi does not apply
retroactively); see also State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004) (holding
Blakely not retroactively applicable
to convictions final after release of Apprendi), review granted (Minn. Jan. 20, 2005).
Because appellant’s petition for
postconviction relief is a collateral attack on a conviction that was final
before Apprendi or Blakely were decided, appellant is not
entitled to retroactive application of either rule, and appellant’s petition
for postconviction relief was properly denied.
Because the decisions appellant relies on were not in existence at the
time of his conviction and sentence, appellant’s claim that he received ineffective
assistance due to counsel’s failure to advise him of rights announced in Apprendi and Blakely is without merit.