This opinion will be unpublished and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
Filed October 11, 2005
Ramsey County District Court
File No. K8-01-2430
Ronald A. Butler, OID #207904, MCF – Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014 (appellant pro se)
Mike Hatch, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
Appellant challenges the denial of his petition for postconviction relief arguing that the addition of the 10-year conditional-release term to the presumptive sentence was an upward departure that violated his constitutional rights under Apprendi and Blakely, and that the conditional-release term violated the plea agreement. Because appellant’s sentence did not violate his rights under Apprendi and Blakely, and appellant is procedurally barred from contesting his plea agreement, we affirm.
On July 10, 2001, appellant
Following sentencing, appellant
filed notice of appeal and, on September 17, 2002, this court affirmed the
In April 2003, appellant petitioned
for postconviction relief, arguing ineffective assistance of counsel,
insufficiency of the evidence, and that the conditional-release statute was not
effective at the time of his prior conviction and, therefore, was not
applicable. The district court denied
the petition, and in April 2004, we affirmed.
In August 2004, appellant brought a second petition for postconviction relief, arguing that the 10-year conditional term violates his constitutional rights under Apprendi and Blakely because it constitutes an unlawful sentencing enhancement and that it violated the plea agreement. The district court denied the petition for reduction of sentence and other postconviction relief. The district court also denied appellant’s subsequent motion for reconsideration of this matter. This appeal follows.
D E C I S I O N
A petition for
postconviction relief is a procedural mechanism to obtain collateral review of
a criminal conviction. See Hummel v. State, 617 N.W.2d 561, 563
Appellant contends that the
imposition of conditional-release terms for sex offenders under Minn. Stat. §
609.109, subd. 7 violates the principles in Apprendi
In Apprendi, the United States Supreme Court held that any fact, other
than the fact of a prior conviction, that increases the penalty for an offense
beyond the statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt. 530
Appellant argues that he is entitled
to benefit from the rule announced in Blakely.
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, 679 N.W.2d at 339-40. “[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.”
The issue of the retroactive
effect of Blakely has been the
subject of recent decisions of this court and the Minnesota Supreme Court. The supreme court decided that Blakely is a new rule of constitutional
criminal procedure and therefore affirmed this court’s decision that Blakely is not retroactive past its
effective date of June 24, 2004.
contention is that the conditional release imposed violated the plea agreement.
Respondent argues that appellant is
procedurally barred from raising this issue under State v. Knaffla, 309
A postconviction court’s
factual findings will be sustained if they are supported by sufficient
evidence, but this court makes an independent determination of the law as it
applies to the facts. Doan v. State, 306
The long-standing Knaffla rule provides: “where a direct
appeal has once been taken, all matters raised therein, and all claims known but
not raised, will not be considered upon a subsequent petition for
postconviction relief.” Knaffla, 309
Here, appellant bases his present claim on a guilty plea that he entered on September 5, 2001 and for which he was sentenced on October 29, 2001. Since those dates, appellant has appealed to this court on two other occasions but has never raised a claim that the imposition of the conditional-release term violated the plea agreement. The alleged violation of the plea agreement was clearly known at the time of direct appeal. Further, a breach of a plea agreement is not a novel claim, and appellant did not make any appeal to “fairness” in his brief.
But even if appellant was
not procedurally barred, this claim would fail as a matter of law. Appellant argues lack of notice of the
imposition of the conditional-release term prior to entering his guilty plea. In State
v. Rhodes, the supreme court determined that the appellant had notice of
the conditional-release term for sex offenders because the statutory
requirement of conditional release was added in 1992 (many years before
appellant entered his plea); case law existed that recognized the mandatory
nature of conditional release; the presentence investigation referenced
conditional release; and the state requested and the court imposed conditional release
at the sentencing hearing. 675 N.W.2d 323, 327 (
Here, appellant was also provided sufficient notice of the imposition of conditional release. Appellant did not enter his guilty plea until 2001, many years after the publication of the relevant statute and case law. His presentence investigation mentioned a 10-year conditional-release term and the district court explained its intention to place appellant on conditional release at the sentencing hearing. Neither appellant nor his counsel objected or raised concerns when given a final opportunity to speak.
Appellant relies on the
cases of State v. Wukawitz, 662
N.W.2d 517 (
involved either the failure to mention the conditional-release term at the sentencing hearing or the failure to include the term in the initial sentence.