This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-14

 

State of Minnesota,
Respondent,

vs.

Dean P. Kennedy,
Appellant.

 

Filed August 16, 2005

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 00104758/00000869

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant Dean P. Kennedy challenges the district court’s denial of his petition for postconviction relief from his sentence for check forgery, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Appellant urges this court to apply Blakely retroactively to his sentence, which was an upward durational departure from the presumptive sentence.

            Because Blakely does not apply retroactively to matters that were final before it was issued, the district court did not abuse its discretion by denying appellant’s petition.  We affirm.

FACTS

            On February 5, 2001, appellant pleaded guilty to charges of check forgery, fleeing a police officer, and attempted simple robbery.  According to the plea agreement, appellant agreed to a 102-month sentence for check forgery, Minn. Stat. § 609.631, subd. 3 (1998), a double upward durational departure from the presumptive sentence, based on the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (1998).  The statutory maximum sentence for check forgery was 20 years.  Appellant also received a consecutive sentence of one year and one day for attempted simple robbery, Minn. Stat. § 609.24 (1998), and a concurrent sentence of one year and one day for fleeing a police officer, Minn. Stat. § 609.487, subd. 4(c) (1998).  At the time of his arrest on these charges, appellant was on escape status for a 66-month drug sentence; the new sentence was to be served consecutively to that sentence.  Appellant did not file a direct appeal from the conviction and sentence for check forgery.

            In 2004, after the United States Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), appellant filed a petition for postconviction relief from the check-forgery sentence.  The district court denied his petition in November 2004, holding that Blakely does not apply retroactively.  This appeal followed.

D E C I S I O N

            “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The postconviction court’s decision will not be reversed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            A defendant is entitled to the benefit of a new federal rule of criminal law or procedure that is announced while the defendant’s case is pending on direct review.  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  A case is pending “until such time as 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.”  Id.  Under these standards, appellant’s direct appeal rights were exhausted as of June 2001, well before the Blakely decision was issued.  Generally, a new constitutional rule does not apply retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989); Meemken v. State, 662 N.W.2d 146, 149 (Minn. App. 2003)

            A new constitutional rule may be applied retroactively in two limited situations: (1) if the new rule places certain kinds of individual conduct beyond the power of the government to criminally proscribe; or (2) if the new rule represents a “watershed rule” of criminal procedure that changes basic procedures essential to the fairness of a criminal conviction.  State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004) (summarizing Teague), review denied (Minn. Jan. 20, 2005).  The first exception is not applicable here. In Petschl, this court stated that both Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) and Blakely were not concerned with increasing the reliability of the determination of guilt, the rationale for the second Teague exception, but were concerned only with accuracy in sentencing and thus were not subject to retroactive application on collateral review.  Id. at 472.

            Appellant argues that Blakely did not announce a new rule, but merely clarified Apprendi, and thus he is entitled to a retroactive application of the rule as clarified by Blakely.  But the historical interpretation of Apprendi by courts in this state does not support appellant’s contention.  Until the Blakely decision was issued, the phrase “prescribed statutory maximum” used in Apprendi was interpreted to mean the statutory maximum set forth in the statute, not the presumptive sentence under the sentencing guidelines.  See, e.g., State v. Grossman, 636 N.W.2d 545, 549 (Minn. 2001) (stating that after Apprendi, offender could receive maximum sentence set forth in statute, but sentence could not be enhanced beyond that maximum); State v. McCoy, 631 N.W.2d 446, 450-51 (Minn. App. 2001) (interpreting Apprendi to limit sentence to maximum as set forth in statute).  In this context, Blakely represents a new rule of law and not a clarification of Apprendi.  See State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004) (holding that Blakely announced new rule that was not dictated by Apprendi and that is not subject to retroactive application on collateral review of sentence), review granted (Minn. Jan. 20, 2005).

            Because Blakely announced a new rule that is not subject to retroactive application on collateral review of appellant’s sentence, the district court did not abuse its discretion by denying appellant’s petition for postconviction relief.

            Affirmed.