opinion will be unpublished and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
Samuel Lee Byers,
State of Minnesota,
October 25, 2005
County District Court
Lee Byers, MCF/Rush City, 7600 525th
Street, Rush City, MN 55069 (pro se appellant)
Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN
Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County
Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
1995, appellant was convicted of second-degree murder. Appellant was sentenced to 240 months in
prison, an upward departure from the presumptive sentence of 156 months under
the Minnesota Sentencing Guidelines. In
1997, appellant’s conviction was affirmed by the Minnesota Supreme Court. State
v. Byers, 570 N.W.2d 487 (Minn.
1997). Appellant now argues that the imposition of an upward departure
was not justified based on the facts and that it was a violation of his Sixth
Amendment right to a jury trial under 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 under Minnesota law the rule
from Blakely does not apply
retroactively to cases on collateral review, we affirm.
E C I S I O N
“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). This court will not disturb the decision of a
postconviction court absent an abuse of discretion. Dukes
v. State, 621 N.W.2d 246, 251 (Minn.
2001). The scope of review is limited to
determining whether there is sufficient evidence in the record to support the
findings of the postconviction court. Doughman v. State, 351 N.W.2d 671, 674
(Minn. App. 1984), review denied
(Minn. Oct. 16, 1984). Appellant is
seeking to relitigate the underlying basis for the upward durational departure;
however, the propriety of his sentence was fully litigated in appellant’s
direct appeal. “[W]here
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.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Appellant is now barred from raising the
Appellant also argues that the upward durational departure
is a violation of his Sixth Amendment right to a jury trial under Apprendi and Blakely. Appellant was found
guilty and was sentenced before Apprendi
and Blakely were decided. The United States Supreme Court held 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.” Apprendi, 530 U.S.
at 490, 120 S. Ct. at 2362-63. In Blakely,
the Court extended the rule in Apprendi
to sentencing-guideline regimes, holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at ____, 124 S. Ct.
at 2537 (emphasis omitted). The
Minnesota Supreme Court has held that Apprendi
and Blakely apply to upward
durational departures under the Minnesota Sentencing Guidelines. State
v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005), pet. for rehearing filed (Aug. 29, 2005). Further, the supreme court held that while
the Blakely decision created a new
rule, it is not a watershed rule and will not be applied retroactively on
collateral review. State v. Houston, 702 N.W.2d 268,
law, the rule from Blakely does not
apply retroactively to cases on collateral review, the imposition of an
upward departure in this case was not a violation of appellant’s Sixth
Amendment right to a jury trial.