This opinion will be unpublished and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
John Patrick Murphy,
Ramsey County District Court
File No. K2931209
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Patrick Murphy,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
Appellant John Patrick Murphy challenges the district court’s order denying his motion for an amended sentence based on an alleged violation of Apprendi and Blakely. Because appellant’s sentence was final before the decisions in Apprendi and Blakely were announced, and because the decisions do not apply retroactively, we affirm.
In 1994, appellant pleaded guilty to ten counts of
terroristic threats and one count of conspiracy to make terroristic threats and
was sentenced to an upward durational departure from the sentencing guidelines. This court and the supreme court affirmed the
upward departure on direct appeal. State v. Murphy, No. C3-94-1931 (
Appellant has filed numerous
petitions for postconviction relief and appeals from denial of those
petitions. A 2003 district court order
requires appellant to have all pleadings pre-screened by a district court judge
before appellant may file such documents with the court administrator. Appellant’s motion for relief under Apprendi v.
The application of Blakely
v. Washington to a sentence presents a constitutional issue, which this
court reviews de novo. State v.
applies to all cases pending on direct review at the time Blakely was released and to subsequent direct appeals. See Petschl, 692 N.W.2d at 470. But this court has previously held that Apprendi does not apply retroactively on
collateral challenges, such as petitions for postconviction relief. Meemken
v. State, 662 N.W.2d 146, 150 (
Appellant argues in the alternative that his sentences were
not final when Blakely and Apprendi became law. Appellant argues that because he can appeal revocation
of probation on any of the consecutive five-year sentences imposed, his
sentence is not final for purposes of the application of Blakely. We disagree. The point at which a judgment becomes final is
the critical point for purposes of retroactivity analysis. State
v. Losh, 694 N.W.2d 98, 101 (Minn. App. 2005) (declining to apply Blakely to an appeal from a
probation-revocation hearing, when the judgment of conviction was final due to
the appellant’s failure to file a direct appeal during the time period
prescribed by appellate rules), review
granted (Minn. June 28, 2005). Losh specifically rejected the argument
that because modification of a sentence is possible, a judgment is not final
for the purpose of precluding the retroactive application of a new rule.
Next, appellant argues that his sentences were not final at
the time Apprendi and Blakely were decided because the supreme
court left open the possibility of a future appeal on the merits of the geographic
restriction condition of probation. A
case is pending until such time as the availability of appeal has been
exhausted, the time for a petition for certiorari has elapsed, or a petition
for certiorari with the Supreme Court has been filed and finally denied. O’Meara
v. State, 679 N.W.2d 334, 339 (
Finally, appellant’s petition mentions, in passing, his claim that the geographic restriction on where he can serve his probation is unlawful. Because this claim was beyond the scope of the claim that the district court permitted appellant to assert in this petition, the state did not brief this issue to the district court and the district court’s order does not mention this claim. Appellant raises the issue on appeal, but because the issue was not appropriately raised in the district court and was not considered by the district court, we decline to consider it in this appeal.