This opinion will be unpublished and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
Gary Raymond Tomberlin, petitioner,
Anoka County District Court
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Benjamin J. Butler, Assistant State Public Defender, State Public Defender’s Office, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.
TOUSSAINT, Chief Judge
Raymond Tomberlin challenges the denial of his July 14, 2004 petition for
postconviction relief. On January 18,
2001, appellant was sentenced to 120 months in prison for convictions of two
counts of criminal sexual conduct in the second degree under Minn. Stat. §
609.343, subd. 1 (2000). The sentence
was an upward durational departure from the sentencing guidelines based on
judicial findings of aggravating factors.
Appellant’s sentence was affirmed on direct appeal in February
2002. State v. Tomberlin, 2002 WL 171992, No. C0-01-689 (Minn. App. Feb.
5, 2002), review denied (
postconviction relief are collateral attacks on judgments which carry a
presumption of regularity and, therefore, cannot be lightly set aside. Pederson
v. State, 649 N.W.2d 161, 163 (
that the district court erred when it sentenced him to 120 months in prison, an
upward durational departure from the presumptive sentence, because the Sixth
and Fourteenth amendments to the federal constitution, as interpreted in Apprendi v.
argues that he should benefit from the rule announced in Apprendi 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” because
it was decided before his convictions and sentence became final in 2002. Apprendi,
argues that he is entitled to the retroactive application of the rule announced
in Blakely, which issued after his
sentence became final. The rule
from Blakely altered the
understanding of “statutory maximum” for Apprendi purposes by stating that “the maximum sentence the judge
may impose based solely upon those facts either reflected in the jury verdict
or admitted by the defendant . . . [is] the presumptive sentence.” State
however, argues that Blakely does
apply retroactively to his case because it is a new watershed rule of criminal
procedure. There are two exceptions to the general
rule that new rules of law do not apply to convictions that are final: (1) if the new rule “place[s] an entire
category of primary conduct beyond the reach of the criminal law, or . . . prohibit[s]
imposition of a certain type of punishment for a class of defendants because of
their status or offense”; and (2) “new watershed rules of criminal procedure
that are necessary to the fundamental fairness of the criminal proceeding.” O’Meara,
679 N.W.2d at 340 n. 3 (quoting Sawyer v.