This opinion will be unpublished and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
State of Minnesota,
Filed October 4, 2005
File No. K4-00-1368
Mary M. McMahon, McMahon & Associates, Suite 140, 2499 Rice Street, Roseville
Mike Hatch, Attorney General 1800 Bremer
Tower, 445 Minnesota Street, St.
Paul, MN 55101; and
Janelle Prokopec Kendall, Stearns
County Attorney, Room 448
Administrative Center, 705 Courthouse Square, St. Cloud, MN
Considered and decided by Dietzen, Presiding Judge; Lansing,
Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
challenges the district court order denying his petition for postconviction
relief, arguing that the upward departure from his presumptive sentence violated
his right to a jury trial under Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Because appellant’s conviction was final at
the time Blakely was decided, Blakely does not apply to appellant’s
sentence, and we therefore affirm.
Patrick Jones, a.k.a. “Chico,”
was charged in March 2000 with criminal racketeering under Minn. Stat.
§§ 609.903, subd. 1(1), 609.904, subds. 1, 2 (2000). Appellant pleaded guilty to the charge as a
level-eight offense. Appellant’s
presumptive sentence under the Minnesota Sentencing Guidelines for this offense
with no criminal history points is 86 months.
See Minn. Sent. Guidelines II.C. The plea agreement called for a sentencing
range between 86 and 98 months.
Consistent with the plea agreement, the district court imposed a
sentence of 98 months which was an upward sentencing departure. Appellant filed a notice of appeal, but that
appeal was dismissed by stipulation in November 2001.
August 2004, appellant filed a petition for postconviction relief, arguing that
his sentence violated his constitutional rights because the upward durational
departure was based on aggravating factors found by the judge, not a jury. The district court denied the petition for
postconviction relief on the grounds that appellant’s conviction and sentence
were final by the time Blakely was
decided. This appeal follows.
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 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 a postconviction court’s determination of a legal issue is reviewed
de novo. Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).
that his sentence is unconstitutional because a judge, not a jury, found the
facts supporting the upward durational departure. He argues that he is entitled to benefit from
the rule announced in Blakely v.
Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004), because the ruling merely
clarified the substantive rule, announced before his sentence was imposed, in Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348 (2000).
Thus, he asserts that his sentence must be reduced from 98 months to the
presumptive sentence of 86 months.
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.” Id. at 490, 120 S. Ct.
at 2362-63. 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 [a judge] may impose without any additional
findings.” 524 U.S. ___, 124 S. Ct.
at 2537. 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. Aug. 18, 2005).
Jones argues that
he is entitled to benefit from the rule announced in Blakely because he was sentenced after Apprendi was decided, and Blakely
does not announce a new rule but rather is an extension of Apprendi. This issue was
recently addressed by the Minnesota Supreme Court in State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005). In Houston, the Minnesota
Supreme Court was presented with the issue of whether the rule in Blakely applies retroactively to
sentences issued after Apprendi but
before Blakely was released. Id. The court held that Blakely was a new rule that was not dictated by the holding of Apprendi. Id. at 272. The court also held that Blakely did not announce a “watershed” new rule of constitutional
criminal procedure and thus has no retroactive effect to alter final sentences
challenged on collateral review. Id.
at 273. The court reasoned that “[t]o be
a watershed rule, the new rule must be one without which ‘the likelihood of an
accurate conviction is seriously diminished.’”
Id.(citation omitted). The court
further stated that “Blakely does not
impact the accuracy of an underlying determination of guilt or innocence. Instead, it modifies the manner in which
certain factors—those factors justifying upward durational departures . . .
must be treated.” Id. The supreme court therefore held that Blakely is a new rule of constitutional
criminal procedure, but not a watershed rule.
A defendant is
entitled to benefit from a new rule of federal constitutional criminal
procedure if his case is pending on direct review when that new rule is
announced. O'Meara v. State, 679 N.W.2d 334,
339 (Minn. 2004). “[A] case is final when a judgment of conviction
has been rendered, the availability of appeal exhausted, and the time for a
petition for certiorari [has] elapsed or a petition for certiorari [has been
filed and] finally denied.” Id.
(quotation omitted). A defendant whose
conviction is already final at the time the new rule is announced generally may
not benefit from the new rule. Id.
at 339–40. In some circumstances, Blakely may apply retroactively to a
defendant’s sentence when the sentence was not final when Blakely was released. State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005).
Here, Jones entered
his guilty plea for racketeering in January 2001 and he was sentenced in June
2001. Jones appealed his sentence in
September 2001, but his appeal was dismissed by stipulation in November 2001. Therefore, appellant’s conviction and sentence became
final when his direct appeal was dismissed by stipulation on November 14, 2001. See
Hutchinson v. State, 679 N.W.2d
160, 162 (Minn.
2004) (holding that an appeal suspends a judgment but dismissal of an appeal
makes the judgment final). Jones’s
guilty plea and sentence were both final before Blakely was decided in 2004; therefore, his case was not pending on
direct review at that time. And because Blakely did not announce a “watershed rule
of criminal procedure,” Jones is not entitled to retroactive relief. Houston, 702
N.W.2d at 273.
In light of the
holding in Houston, and because appellant’s sentence
was already final before Blakely was
decided, Blakely provides no legal
basis upon which appellant can successfully challenge his sentence. Therefore, the district court did not abuse
its discretion in denying Jones postconviction relief.