This opinion will be unpublished and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
Willie Eddie Reynolds, petitioner,
Timothy J. Otis, petitioner,
State of Minnesota,
File Nos. K6-02-3227, K3-97-2715
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant State Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom,
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.
In December 2002, Reynolds pleaded guilty pursuant to a plea agreement to one count of felony domestic assault, in violation of Minn. Stat. § 609.2242, subds. 1(1), 4 (2002), and one count of gross-misdemeanor obstructing legal process, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2002). At a combined guilty-plea and sentencing hearing, Reynolds stated that he understood his presumptive guidelines sentence is 33 months’ imprisonment, but his criminal history would cause him to be designated as a career offender. Reynolds also acknowledged that the district court would sentence him as a career offender to 60 months’ imprisonment, with a stay of execution. After Reynolds waived his right to a jury trial and presentence investigation, the district court sentenced Reynolds according to the terms of the plea agreement and placed him on probation for 60 months. A sentence was not imposed for his conviction of obstructing legal process.
July 2003, Reynolds violated the conditions of probation. The district court revoked probation and executed
the 60-month prison term. Reynolds did
not appeal his sentence at that time. On
August 6, 2004, Reynolds filed a petition for postconviction relief, alleging that his
sentence was unconstitutional under Apprendi
In December 1997, Otis was charged with one count of unauthorized use of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (Supp. 1997), and one count of theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (Supp. 1997). A jury acquitted Otis of theft of a motor vehicle but convicted him of unauthorized use of a motor vehicle. The presumptive guidelines sentence for this offense is 26 months’ imprisonment. But the district court sentenced Otis as a career offender to 60 months’ imprisonment.
appealed his conviction and sentence without challenging the constitutional
basis for the upward departure from the sentencing guidelines under the
career-offender statute. We affirmed
Otis’s sentence in State v. Otis, No.
In July 2004, Otis moved to correct his sentence, arguing that it was imposed in violation of Apprendi and Blakely. The district court denied relief.
After the denial of their petitions for postconviction relief, Reynolds and Otis learned that the chief judge of the First Judicial District, who had not ruled on either petition, had sent a memorandum to the Dakota County bench that cited with approval the county attorney’s position regarding retroactive application of the Blakely decision. Reynolds and Otis sought removal of the entire First District bench, including the judges who had ruled on their petitions, arguing that the judges’ impartiality could be reasonably questioned because they received the memorandum. In each case, the assistant chief judge granted the motion as to the chief judge but denied the motion as to the other members of the bench. This appeal followed.
Reynolds and Otis argue that
they are entitled to postconviction relief because their sentences were imposed
in violation of the Sixth Amendment right to a jury trial announced in Blakely. A petition for
postconviction relief is a collateral attack on the judgment, which carries a presumption
of regularity. Pederson v. State, 649 N.W.2d 161, 163 (
In Blakely, the United
States Supreme Court refined the rule announced in Apprendi that “‘any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury[.]’”
124 S. Ct. at 2536 (quoting Apprendi, 530
Reynolds and Otis argue that they are entitled to postconviction relief because the Blakely decision merely interprets Apprendi and that they did not waive the right to have a jury determine whether their offenses were committed as part of a pattern of criminal conduct in order to be sentenced as a career offender.
Otis did not raise an Apprendi claim
in his direct appeal, we first consider whether his postconviction claim is properly
before us. After a direct appeal has been taken, all
matters raised in that appeal, along with all claims known but not raised in it,
will not be considered in postconviction proceedings. State
v. Knaffla, 309
supreme court’s decision in
Reynolds did not bring a
direct appeal. Therefore, his conviction
and sentence became final on March 10, 2003, 90 days after the December 10,
2002 judgment and sentence. See Minn. R. Crim P. 28.02, subd. 4(3)
(providing defendant must appeal from judgment in 90 days). Otis’s conviction and sentence became final on
January 15, 2001, 90 days after the Minnesota Supreme Court denied review,
which is the deadline for filing a petition for a writ of certiorari to the
United States Supreme Court. See Sup. Ct. R. 13. Blakely
was decided on June 24, 2004. Because the
convictions and sentences at issue here were final when the new rule in Blakely was announced, Reynolds and Otis
do not benefit from the new rule. See O’Meara v. State, 679 N.W.2d 334, 339 (
Reynolds and Otis next argue that denial of their motions to remove the judges who ruled on their petitions was an abuse of discretion. They assert that the chief judge’s memorandum instructed the judges to deny postconviction petitions seeking retroactive application of Blakely, which calls into question the judges’ impartiality. They maintain that the entire First District bench should have been removed.
Whether to grant a motion to remove for cause is committed to the district
court’s discretion, and absent an abuse of that discretion, we will not reverse. Hooper
v. State, 680 N.W.2d 89, 93 (
Under the rules [of criminal procedure], “[n]o
judge shall preside over a trial or other proceeding if that judge is
disqualified under the Code of Judicial Conduct.” Minn. R. Crim. P. 26.03, subd. 13(3). The Code of Judicial Conduct provides that judges shall disqualify themselves “in [ ] proceeding[s]
in which [a] judge’s impartiality might reasonably be questioned.”
Here, Reynolds and Otis did not question the impartiality of the judge in their respective cases until they learned of the chief judge’s memorandum, which was after each judge had ruled on the postconviction petitions. In the memorandum, the chief judge stated that the analysis was offered “in an effort to promote consistency amongst judges within [the] district[.]” But he also stated that each judge is “of course free to render any decision that [one] see[s] fit[.]”
The assistant chief judge removed the chief judge from reviewing postconviction petitions raising Blakely claims, finding it “understandable why [appellants] may reasonably question his impartiality in light of the adversarial nature of the County Attorney’s perspective and [the chief judge’s] approving comments.” But the assistant chief judge determined that the memorandum did not provide a reasonable basis to question the impartiality of the rest of the First District bench. To do so, he reasoned, would ignore the chief judge’s “invitation ‘to render any decision that [one] see[s] fit,’ an obvious caveat to his suggestion of district solidarity.” We agree. Although he offered an analysis of the retroactivity issue in the interest of promoting uniformity, the chief judge acknowledged his lack of authority to bind the other members of the bench and invited each judge to render his or her legal opinion independent of the proffered analysis. The record is devoid of any evidence that the judges who ruled on the postconviction petitions at issue here did not employ their own legal analysis in rendering their decisions. Accordingly, the removal motions were properly denied.
In his supplemental pro se
brief, Otis also challenges the district judge’s impartiality based on actions
taken both prior to and during trial. Matters
known, yet not raised on direct appeal, ordinarily are
waived for purposes of a postconviction
proceeding. Knaffla, 309
 The district court regarded the motion as a petition
for postconviction relief. See