This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed September 20, 2005
Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425,
Minneapolis, MN 55414; and
Mary M. McMahon,
Special Assistant Public Defender, McMahon & Associates Criminal Defense,
Ltd., 2499 Rice Street, Suite 140,
Roseville, MN 55113-3724
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
L. Douglas Storey, Cottonwood
County Attorney, Nicholas A.
Anderson, Assistant County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)
Considered and decided by Dietzen, Presiding
Judge, and Klaphake,
P U B L I S H E D O P I N I O N
Pedro Charles Flores challenges the postconviction court’s denial of his
request for a reduction in his 30-year sentence for first-degree criminal
sexual conduct and vacation of the mandatory 10-year conditional release term under
to Minn. Stat. § 609.109, subd. 7 (2000).
Appellant argues that his sentence and the conditional release term
violated the principles set forth in Blakely
v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004).
Blakely does not apply retroactively
to matters that were final before its issuance, the district court did not
abuse its discretion by denying appellant’s postconviction petition. We therefore affirm.
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. Pederson v. State, 649 N.W. 2d 161, 163 (Minn. 2002). The reviewing court will not reverse the
postconviction court’s decision absent an abuse of discretion. Dukes
v. State, 621 N.W.2d 246, 251 (Minn.
2001). The determination of whether a
decision applies retroactively is a question of law reviewed de novo. State
v. Petschl, 692 N.W.2d 463, 470 (Minn.
App. 2004), review denied (Minn. Jan. 20, 2005).
Petschl, we recognized that Blakely announced a new constitutional
rule, because it was not dictated by the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000). Petschl, 692 N.W.2d at 471; see
also State v. Houston,
702 N.W.2d 268 (Minn.
2005). Applying the principles set forth
in Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76 (1989),
and O’Meara v. State, 679 N.W.2d 334,
2004), the supreme court concluded that Blakely,
as a new rule of federal constitutional criminal procedure, applied
retroactively to matters still pending on direct review, but not to those that
were final before Blakely was issued.
704 N.W.2d at 272. A conviction is final when a defendant’s
direct appeal rights are exhausted and the time for filing a petition for
certiorari has passed or a petition for certiorari has been denied by the
Supreme Court. O’Meara, 679 N.W.2d at
336. Here, appellant’s direct appeal
rights were exhausted when the Minnesota Supreme Court denied his petition for
review of our decision confirming his conviction on February 26, 2003, and the
time for filing a petition for certiorari passed. Appellant’s conviction thus was final well
before the Blakely decision was
issued in June 2004.
the time his direct appeal rights were exhausted, appellant had been sentenced
in accordance with the principles of Apprendi
to no more than the statutory maximum of 30 years. See,
e.g., State v. Grossman, 636 N.W.2d 545, 549 (Minn. 2001) (limiting sentencing departures
after Apprendi to no more than the
maximum set forth in statute). Because
appellant is not entitled to retroactive application of Blakely, the district court did not abuse its discretion by denying
his petition for postconviction relief from his sentence.
also challenges the district court’s imposition of the mandatory conditional
release term under Minn. Stat. § 609.109, subd. 7 (2000), arguing that it
increases his sentence beyond the statutory maximum based on judicially found
facts. In State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003), also a post-Apprendi but pre-Blakely case, the supreme court concluded that because the
conditional release term of Minn. Stat. § 609.109, subd. 7, is authorized on
the basis of the jury verdict alone and does not require any additional
factfinding, it is permissible under Apprendi. We therefore reject appellant’s challenge to
the imposition of a conditional release term.