This opinion will be unpublished and

may not be cited except as provided by

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








Brian Warren Briggs, petitioner,

Respondent (A04-2146),

Appellant (A04-2170),




State of Minnesota,

Appellant (A04-2146),

Respondent (A04-2170).


Filed October 25, 2005


Willis, Judge


Steele County District Court

File No. K9-02-1122


John M. Stuart, State Public Defender,  Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for respondent/appellant Brian Warren Briggs)


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and


Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN  55060 (for appellant/respondent State of Minnesota)


            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


This is a consolidated appeal from an order granting respondent-appellant Brian Warren Briggs postconviction relief from a 2003 sentence.  Appellant-respondent state argues that the postconviction court erred by applying Blakely retroactively to Briggs’s sentence, and Briggs challenges the district court’s order convening a sentencing jury.  Because we conclude that the district court abused its discretion by vacating Briggs’s sentence, we reverse.


            In April 2003, Briggs pleaded guilty to fifth-degree controlled-substance crime, in violation of Minn. Stat. § 152.025, subds. 2(1), 3 (2002), and to possession of a short-barrel shotgun, in violation of Minn. Stat. § 609.67, subd. 2 (2002).  On June 2, 2003, the district court sentenced Briggs to one year and one day, stayed, on the gun-possession charge and to the mandatory 36-month minimum under Minn. Stat. § 609.11, subd. 5 (2002), for the controlled-substance crime because Briggs possessed a firearm during the commission of the drug offense.  Briggs did not directly appeal his convictions or his sentences. 

            In August 2004, Briggs filed a petition for postconviction relief based on the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  The postconviction court granted Briggs’s motion to vacate his 36-month sentence, concluding that Blakely was a watershed rule of criminal procedure that applied retroactively to Briggs’s sentence and that the sentencing scheme in Minn. Stat. § 609.11, subd. 5, is unconstitutional under Blakely.  The postconviction court ordered a jury trial to decide the issue of whether an upward departure in sentencing is warranted. 

            Both the state and Briggs appealed the postconviction court’s decision, and this court consolidated the appeals for review.


“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A postconviction court’s findings are afforded great deference, and its decision will not be reversed unless the postconviction court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But we review de novo a postconviction court’s legal conclusions, such as whether a decision applies retroactively.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003); State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005), cert. denied, 125 S. Ct. 2912 (U.S. June 13, 2005).

Briggs argues that (1) Blakely v. Washington, 124 S. Ct. 2531 (2004),did not announce a new rule, and he is, therefore, entitled to benefit from the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), as described in Blakely; (2) in the alternative, Blakely is a watershed rule of criminal procedure; and (3) his sentence was unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002).  The state argues that, in light of this court’s recent decisions, the district court abused its discretion by determining that Blakely is a watershed rule of criminal procedure that applies retroactively to Briggs’s sentence. 

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  530 U.S. at 490, 120 S. Ct. at 2362-63.  In Ring, the Supreme Court extended this reasoning to capital cases when the death penalty is authorized only if an aggravating factor is present.  536 U.S. at 603-09, 122 S. Ct. at 2440-43.  The Supreme Court also determined in Ring that the Sixth Amendment, as interpreted in Apprendi, requires that such aggravating factors be found by a jury rather than a judge.  Id.  In Blakely, the Supreme Court concluded that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  124 S. Ct. at 2537.  And the Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, __ N.W.2d __, __, 2005 WL 1981659, at *8 (Minn. Oct. 6, 2005).

Briggs argues that Blakely did not announce a new rule but rather extended the rule announced in Apprendi and that he is, therefore, entitled to benefit from the Blakely court’s interpretation of Apprendi.  “[A] court’s decision enunciates a ‘new rule of law’ when the decision was not ‘dictated’ by precedent existing at the time the defendant’s conviction became final.”  Petschl, 692 N.W.2d at 471 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989)).  In State v. Houston, the Minnesota Supreme Court determined that Blakely is a new rule that was not dictated by Apprendi and is not available for collateral use.  702 N.W.2d 268, 273 (Minn. 2005). 

In the alternative, Briggs argues that Blakely is a “watershed rule” of constitutional criminal procedure that should apply retroactively to his sentence.  A defendant is entitled to benefit from a new rule of federal constitutional criminal procedure if his case is pending on direct review when the new rule is announced.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  “[A] case is pending until such time as 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.”  Id. at 336.  A defendant whose conviction and sentence are final when the new rule is announced may not benefit from that rule, but an exception exists when the new rule is a “watershed rule of criminal procedure.”  Id. at 340 & n.3.  

A watershed rule of criminal procedure is a rule that “alters the understanding of the basic procedures essential to the fairness of a criminal conviction.”  Petschl, 692 N.W.2d at 471.  The United States Supreme Court has specifically noted that judicial fact-finding does not seriously diminish the accuracy of a conviction.  Schriro v. Summerlin, 124 S. Ct. 2519, 2525-26 (2004).  And the Minnesota Supreme Court has concluded that Blakely is a new constitutional rule of criminal procedure that is not a watershed rule subject to retroactive application on collateral review.  Houston, 702 N.W.2d at 274. 

Here, Briggs pleaded guilty in April 2003, and he was sentenced on June 2, 2003.  Briggs did not directly appeal his convictions or sentences.  A defendant must appeal his conviction or sentence within 90 days after final judgment or entry of the order appealed from.  Minn. R. Crim. P. 28.02, subd. 4(3).  Therefore, Briggs’s convictions and sentences became final on August 31, 2003, almost one year before the Supreme Court decided Blakely.  Because Briggs’s convictions and sentences were final before Blakely, he is not entitled to benefit from the rule announced in that case.  The district court, therefore, erred by applying Blakely retroactively to Briggs’s 36-month sentence.

Finally, Briggs also argues that his 36-month sentence is unconstitutional under Ring,which was decided while his case was pending on direct appeal.  Ring applied Apprendi to Arizona’s death-penalty scheme.  536 U.S. at 603-09, 122 S. Ct. at 2440-43.  Before Ring was decided, Arizona law authorized the death penalty only when a trial judge determined that aggravating factors were present.  Id. at 588, 122 S. Ct. at 2432.  In Ring, the Supreme Court determined that such aggravating factors must be found by a jury.  Id. at 603-09, 122 S. Ct. at 2440-43.  Briggs argues that his sentence is unconstitutional under Ring because the district court could not impose “a sentence longer than the top-of-the-box guidelines sentence” without finding an aggravating factor.  But until Blakely was decided, courts looked to the applicable statute, not to the sentencing guidelines, to determine the maximum sentence for an offense.  Houston, 702 N.W.2d at 271; see, e.g., State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001) (deciding that Apprendi was inapplicable to the defendant’s sentence, which was less than half of the statutory maximum sentence of 25 years). 

Here, Briggs was sentenced to 36 months for the fifth-degree controlled-substance crime.  The maximum statutory sentence for a fifth-degree controlled-substance crime was 60 months.  Minn. Stat. § 152.025, subd. 3 (2002).  Because Briggs’s sentence was less than the statutory maximum sentence, his sentence did not violate Ring. 

Because Briggs is not entitled to the application of Blakely or Ring to his sentence, the district court erred by vacating Briggs’s sentence.  Because Briggs’s 36-month sentence is, therefore, reinstated, we need not consider the other arguments raised by the state or Briggs.