This opinion will be unpublished and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
Andre Dion Wilson, petitioner,
Hennepin County District Court
File No. 95084274
John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant);
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Considered and decided by Tousssaint, Chief Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying a postconviction petition challenging his 1996 sentence for second-degree felony murder, appellant argues that the upward departure based on the vulnerability of the victim violated his right to a jury trial under Blakely, and that Blakely is a watershed rule of constitutional criminal procedure that should be given retroactive effect. We affirm.
In September 1995, appellant Andre Wilson was charged with two counts of second-degree murder. Appellant subsequently pleaded guilty to one count of second-degree murder, and on February 12, 1996, received a sentence of 228 months, a one-and-one-half-times upward departure from the presumptive sentence. In September 2004, appellant filed a pro se postconviction petition challenging his sentence based on the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). The district court denied the petition on October 19, 2004. This appeal followed.
D E C I S I O N
Appellant argues that his Sixth Amendment rights under Blakely were violated when his sentence
was increased based on facts not found by a jury beyond a reasonable doubt, and
that Blakely applies retroactively to
his conviction. The determination of whether a
decision applies retroactively is a legal question, which this court reviews de novo. State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (
the Supreme Court held that the greatest sentence that a judge may impose “is
the maximum sentence [that may be imposed] solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 124
“Unless they fall
within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before
the new rules are announced.” Teague
v. Lane, 489
however, that he is entitled to retroactive relief because Blakely announced a watershed rule applicable to all prior cases. We disagree. Appellant’s petition for postconviction relief
is a collateral attack on a conviction. See Meemken v. State, 662 N.W.2d 146,
 Appellant concedes that
this court has rejected his argument, but appellant maintains his argument on
the basis that neither the