This opinion will be unpublished and

may not be cited except as provided by

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







Robert LeRoy Rustman,






State of Minnesota,




Filed October 25, 2005


Klaphake, Judge


Lyon County District Court

File No. KX-99-256


Robert LeRoy Rustman, OID #123869, 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


Richard R. Maes, Lyon County Attorney, 607 W. Main Street, Marshall, MN  56258 (for respondent)


            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


            Appellant Robert Leroy Rustmann challenges the district court’s order denying his postconviction petition for a reduction in his sentence and vacation of the ten-year conditional release term imposed under Minn. Stat. § 609.109, subd. 7 (1998).  Appellant based his petition on the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because Apprendi and Blakely do not apply retroactively to matters that were final before their issuance, we affirm.


            We review the postconviction court’s decision for an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “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) (citation omitted).

            A defendant is entitled to the benefit of a new federal rule of criminal law or procedure if it is announced while his or her case is still pending on direct review.  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  A case is pending until the availability of direct review is exhausted.  Id.  Appellant’s conviction and sentence became final in 1999 when he failed to pursue a direct appeal. 

            We have previously determined that both Apprendi and Blakely announced new rules of constitutional law that are not subject to retroactive application on collateral review.  State v. Houston, 702 N.W.2d 268, 272 (Minn. 2005); see also State v. Petschl, 692 N.W.2d 463, 471-72 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005); Meemken v. State, 662 N.W.2d 146, 149 (Minn. App. 2003).  Because appellant’s conviction and sentence were final in 1999, before Apprendi and Blakely were decided, the district court did not err by denying his postconviction petition for a reduction in sentence or relief from the conditional release term.

            We further note that imposition of the conditional release term was approved in State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003).  The supreme court there reasoned that the conditional release term imposed under Minn. Stat. § 609.109, subd. 7, is authorized on the basis of the jury verdict alone and does not require additional factfinding by the district court, and thus does not violated Sixth Amendment rights.  Id.