This opinion will be unpublished and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

A05-542

 

John T. McClune, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed September 20, 2005

Affirmed

Minge, Judge

 

Scott County District Court

File No. 01-20203

 

 

John T. McClune, MCF – Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

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.   

FACTS

            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. 

D E C I S I O N

            The 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 (Minn. 2001).   In the appeal of postconviction proceedings, this court reviews questions of law de novo.  State v. Blom, 682 N.W.2d 578, 624 (Minn. 2004).

            In 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.”  124 S. Ct. at 2537.  The Minnesota Supreme Court has applied Blakely to the Minnesota Sentencing Guidelines and held that findings that support an upward durational departure from the presumptive sentence must be found by a jury or admitted by the defendant in order to comply with the Sixth Amendment protections as stated in BlakelyState v. Shattuck, __ N.W.2d __, __, 2005 WL 1981659, at *9 (Minn. Aug. 18, 2005).

            Appellant 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 (Minn. 2003).  The imposition of the five-year conditional release is a mandatory part of the sentence.  Id.  Because appellant’s five-year conditional release was imposed solely on the basis of the facts found in the jury verdict and was not based on additional facts found by the district court, it does not violate appellant’s Sixth Amendment rights articulated under BlakelySee 124 S. Ct. at 2537.

            Appellant 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 (Minn. 2004).  A decision is a new rule if it “breaks new ground” or “imposes a new obligation on the States or the Federal Government,” that is, it is not “dictated by precedent existing at the time the defendant’s conviction became final.”  Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989) (emphasis omitted).  The Minnesota Supreme Court held in State v. Houston, __ N.W.2d __, __, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005), that Blakely created a new rule, that Blakely does not fit into an exception allowing retroactive application, and that the Blakely rule will not be applied retroactively on review to convictions that were final before Blakely was decided. 

 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 S. Ct. at 2531.  Because appellant’s conviction was final before Blakely was decided, the rule announced in Blakely would not apply to appellant’s sentence, including the five-year conditional release term.     

            Affirmed.