This opinion will be unpublished and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
John T. McClune, petitioner,
State of Minnesota,
Scott County District Court
File No. 01-20203
John T. McClune, MCF –
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto,
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
Based on the rule announced in Blakely v. Washington, appellant challenges the district court’s dismissal of his post-conviction petition to modify his sentence to eliminate the period of conditional release. 124 S. Ct. 2531 (2004). Because appellant’s conditional release was not based on any additional facts found by the district court and because appellant’s conviction was final before Blakely was decided and Blakely is not retroactive, we affirm.
In October 2001, appellant John McClune was charged with criminal sexual conduct in the second degree, in violation of Minn. Stat. § 609.343, subds. 1(h)(iii), 2 (2000). Appellant was found guilty of the charge after a jury trial in January 2003. In April 2003, appellant was sentenced to the presumptive guidelines sentence of 48 months with five years of conditional release. Appellant did not appeal his conviction.
In January 2005, appellant filed a petition for postconviction relief. The district court denied the petition without a hearing. This appeal follows.
issue in this case is whether the imposition of a conditional release as part
of appellant’s sentence violated his Sixth Amendment rights as expressed by the
United States Supreme Court in Blakely v.
Washington, 124 S. Ct. 2531 (2004).
This court gives great deference to a postconviction court’s findings of
fact and will not reverse those findings unless they are clearly
erroneous. Dukes v. State, 621 N.W.2d 246, 251 (
Blakely, the United States Supreme
court held that a judge may not impose any sentence that is greater than that
which can be imposed “solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.”
argues that the imposition of a five-year conditional release term in addition
to the 48-month sentence violates Blakely
because it increases his sentence beyond the presumptive sentence. Under Minn. Stat. § 609.109, subd. 7(a) (2000),
a five-year conditional-release period is mandatory for sex offenders convicted
under section 609.343. The Minnesota
Supreme Court found that “[t]his 5-year conditional release term is authorized
on the basis of the jury verdict, and does not require any additional findings
of fact to be made by the district court.”
State v. Jones, 659 N.W.2d
748, 753 (
also argues that Blakely should be
applied to his sentence even though it was final before Blakely was decided. Federal decisions that constitute a new rule
will not be applied retroactively to a conviction that is final unless the
conviction fits into certain exceptions.
O’Meara v. State, 679 N.W.2d
334, 339 (
The district court entered appellant’s
sentence in April 2003, and he did not appeal within the 90 days allowed by
law. See Minn. R. Crim. P. 28.02, subd. 4(3).
Blakely was decided on June
24, 2004. 124