This opinion will be unpublished and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
Curtis Anderson, petitioner,
State of Minnesota,
Sherburne County District Court
File No. K9-00-1767
John M. Stuart, State Public Defender, Cathryn Y. Middlebrook,
Assistant Public Defender,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
Appellant challenges the district court’s denial of his post-conviction petition to modify his sentence in light of the decision announced in Blakely v. Washington, 124 S. Ct. 2531 (2004). Because Blakely does not apply retroactively to cases that were final before it was decided, we affirm.
In September 2000, appellant Curtis Wayne Anderson was charged with theft by check, in violation of Minn. Stat. § 609.52, subds. 2(3)(i), 3(2) (2000), and issuance of a dishonored check, in violation of Minn. Stat. § 609.535, subds. 2, 2a(a)(1) (2000). The charges arose out of a $9,602 check written by appellant for a camper from an account with insufficient funds. On May 2, 2002, appellant pleaded guilty to felony issuance of a dishonored check. The agreement with the state was that appellant would receive a stayed presumptive guidelines sentence of 19 months. The district court reserved acceptance of the plea until the presentence investigation was completed and the matter was returned for sentencing.
At appellant’s sentencing hearing, the district court stated that it would not be willing to accept the 19-month plea agreement, but would be willing to accept the plea if appellant agreed to a double durational departure of a 38-month stayed sentence. Appellant agreed to the revised agreement. The district court noted that appellant had committed more than five prior felonies that were a part of a pattern of theft-related offenses, allowing the court to sentence appellant to the maximum sentence of 60 months under the career-offender statute, Minn. Stat. § 609.1095, sub. 4 (2000). On June 26, 2002, judgment was entered and appellant was sentenced to 38 months with the sentence stayed for five years. Appellant did not appeal this sentence.
At a probation violation hearing on December 18, 2003, appellant requested that the district court execute his sentence. Appellant admitted that he had not kept current with restitution and had failed to remain law-abiding by committing another offense. The district court revoked the stay of execution of the 38-month sentence.
In a postconviction petition filed September 17, 2004, appellant requested that his sentence be reduced to the presumptive sentence of 19 months because his Sixth Amendment rights, as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004), had been violated. The district court denied appellant’s petition, concluding that appellant’s sentence was final before Blakely was decided and that Blakely does not apply retroactively. This appeal follows.
issue in this case is whether appellant is entitled to have his sentence
revised based on the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531
(2004). In the appeal of postconviction
proceedings, this court reviews questions of law de novo. State
v. Blom, 682 N.W.2d 578, 623-24 (
In Blakely, the United States Supreme
Court concluded that if facts must be found to increase a sentence, the Sixth
Amendment guarantees that the accused has the right to have those facts found
by a jury rather than a judge. 124
sentencing statute, which was the basis of appellant’s upward durational
departure in this case, allows for a sentence departure if the judge finds that
“the offender has five or more prior felony convictions and that the present
offense is a felony that was committed as part of a pattern of criminal
Appellant argues that even though his
conviction was final before Blakely was decided, Blakely should
be applied retroactively to invalidate his sentence. If a new rule of federal constitutional
criminal procedure is announced, the new rule will not be applied retroactively
to a conviction that is final unless it fits into certain exceptions. O’Meara
v. State, 679 N.W.2d 334, 339 (
Judgment was entered on appellant’s sentence
in June 2002, and he did not appeal within the 90 days allowed by law. See