This opinion will be unpublished and

may not be cited except as provided by

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






Andre Dion Wilson, petitioner,





State of Minnesota,



Filed September 27, 2005


Randall, Judge


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


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)



            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.    


            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 (Minn. Jan. 20, 2005).

            In Blakely, 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 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, other than a prior conviction, that increases the sentence above this maximum.  Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). 

            “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 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  A case becomes final when “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.”  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  Here, a judgment of conviction was rendered on February 12, 1996.  The time for appellant to petition this court for appeal expired 90 days later.  See Minn. R. Crim. P. 28.02, subd. 4(3) (stating that a criminal appeal must be filed within 90 days of the judgment).  Apprendi was decided on June 26, 2000, and Blakely was decided on June 24, 2004.  Accordingly, appellant’s case became final long before both Apprendi and Blakely were decided.  See Petschl, 692 N.W.2d at 470. 

            Appellant argues, however, that he is entitled to retroactive relief because Blakely announced a watershed rule applicable to all prior cases.[1]  We disagree.  Appellant’s petition for postconviction relief is a collateral attack on a conviction.  See Meemken v. State, 662 N.W.2d 146, 148 (Minn. App. 2003).  This court recently stated that the rule announced in Blakely does not retroactively apply on a collateral review of a conviction that was final before the Supreme Court decided Apprendi.  Petschl, 692 N.W.2d at 472 (concluding that “[b]ecause the Blakely rule does not improve the accuracy or fairness of a trial, . . . it is not a watershed rule subject to retroactive application on collateral review”).  Thus, appellant is not entitled to relief under Blakely.


[1] Appellant concedes that this court has rejected his argument, but appellant maintains his argument on the basis that neither the Minnesota nor the United States Supreme Court has ruled on the issue.  Our supreme court, however, has now held that Blakely does not apply retroactively, even to convictions that were not final until after Apprendi was decided.  State v. Houston, ____ N.W.2d ____, 702 N.W.2d 268, 273 (Minn. 2005).