This opinion will be unpublished and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
Dean P. Kennedy,
Filed August 16, 2005
Hennepin County District Court
File No. 00104758/00000869
Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender,
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
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.
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
petition for postconviction relief is a collateral attack on a judgment which
carries a presumption of regularity and which, therefore, cannot be lightly set
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
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 (
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 (
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.