This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jeremy A. Luckhardt,



Filed ­­­November 8, 2005

Reversed and remanded

Dietzen, Judge


Lyon County District Court

File No. K1-02-433


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


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


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge; Toussaint, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court’s order and judgment resentencing him following a decision of this court affirming his conviction of two counts of first-degree controlled substance crimes, but reversing the sentence for count one and remanding both for resentencing. Appellant argues that his sentence was an upward departure that violated his constitutional rights under Blakely.  Because his direct appeal was pending when Blakely was decided and the sentence violates his rights under Blakely, we reverse.


On July 23, 2002, appellant Jeremy A. Luckhardt was convicted of first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b) and 609.05, subd. 1 (2002), for selling 10 grams or more of a mixture containing methamphetamine (count one); and first-degree controlled substance crime in violation of Minn. Stat. §§ 152.021, subds. 1(1) and 3(b), and 609.05 subd. 1, for possession with intent to sell methamphetamine (count two).

            The district court ordered concurrent 220-month sentences on both counts one and two, an upward departure from the presumptive guidelines sentences of 158 months for count one and 161 months for count two.  The district court based the upward departure on its findings that appellant was a “career offender” pursuant to Minn. Stat. § 609.1095, subd. 4, a “dangerous offender” pursuant to Minn. Stat. § 609.1095, subd. 2(1), and “that children were affected.”

            Following sentencing, appellant filed a notice of appeal and, on May 25, 2004, this court affirmed the convictions but reversed the sentence for count one and remanded both sentences to the district court for resentencing.  State v. Luckhardt, No. C3-02-2026, 2004 WL 1153024, at *10 (Minn. App. May 25, 2004).  This court concluded that the district court erred by enhancing appellant’s sentence for count one because the number of convictions were incorrectly determined under the career-and-dangerous offender statute and the children were not present during the commission of the crime.  Id. at *9-*10.  This court affirmed the district court’s finding that children were present during commission of count two, but remanded on both counts, stating, “[o]n this record, we are not convinced that the trial court would have imposed the upward departures if it had not erroneously determined that appellant was a career offender and a dangerous offender.”  Id. at *10.

On June 24, 2004, appellant filed a petition for review to the Minnesota Supreme Court, the same day that the United States Supreme Court’s Blakely decision was filed.  The petition for review was denied on August 25, 2004 and a final judgment was entered on Sept. 8, 2004.  On January 5, 2005, appellant moved the district court for resentencing on count two, arguing that the upward departure for “presence of children” violated the rule articulated in Blakely.  The district court ordered the presumptive sentence of 158 months for count one and 220 months for count two based on its finding that the presence of children was an aggravating factor.  This appeal followed.


On appeal, we review a postconviction resentencing court’s decision to grant or deny relief under an abuse-of-discretion standard.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  Legal questions, however, are reviewed de novo. State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  The determination of whether a decision applies retroactively or nonretroactively is a legal question that we review de novo.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).

Appellant contends that the imposition of an enhanced sentence of 220 months for count two violated his constitutional rights under Blakely because the upward durational departure was based on judicial findings that children were present during commission of the crime.  Appellant argues that an upward durational departure must be supported either by the defendant’s admissions or jury findings, and cannot be based on judicial findings.

In Apprendi v. New Jersey, 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 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  In Blakely v. Washington, the Supreme Court concluded 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.”  542 U.S. 296, ___, 124 S. Ct. 2531, 2537 (2004) (citation and emphasis omitted).  And the Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005), rehearing granted (Minn. Oct. 6, 2005).

Here, appellant’s upward departure was based on judicial findings that children were present during the commission of the crime.  This fact was not reflected in the jury’s verdicts finding appellant guilty of two first-degree controlled substance crimes nor was it admitted by appellant.  The district court explicitly stated at the sentencing hearing that it based the departure on its own findings regarding the evidence presented at trial:

I’m satisfied children were affected. Children were living in this house, and my recollection is that there was actually evidence at trial which showed definitely that children were affected. That evidence was the videotape that was played, videotape when the search warrant was executed. Officer went in with a video camera and as he was panning all the rooms where different things were found, one thing that stuck out in my mind probably more than anything else in this trial is the picture of two young, very small children cowering at the end of a couch, their mother reading a story to them while huge policeman were involved. So, those kids were absolutely involved. Those kids will carry with them the rest of their lives some of the things that you have subjected them to.


This use of judicial fact-finding to enhance a presumptive sentence clearly violates the rule enunciated in BlakelySee 542 U.S. at ___, 124 S. Ct. at 2537.

Appellant argues that he is entitled to benefit from the rule announced in Blakely. A 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.  “[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.”  Id. at 336.  A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for postconviction relief) generally may not benefit from the new rule.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  An exception exists, however, when the new rule is a “watershed rule of criminal procedure.”  Petschl, 692 N.W.2d at 471.  But, the Minnesota Supreme Court determined that Blakely is not a watershed rule of criminal procedure and therefore is not subject to retroactive application on collateral review.  Houston, 702 N.W.2d at 273.

The issue of the retroactive effect of Blakely has been the subject of recent decisions of this court and the Minnesota Supreme Court.  The Minnesota 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.  Id. Here, appellant was found guilty of two counts of first-degree controlled substance crimes and he was sentenced to concurrent 220-month sentences, which were both upward departures from the presumptive guidelines sentences.  This court reversed and remanded the sentences on May 25, 2004.  Appellant petitioned the Minnesota Supreme Court for review on June 24, 2004, the same day that Blakely was filed.  Appellant’s case, therefore, was “pending” on direct review when the rule in Blakely was announced.  See O’Meara, 679 N.W.2d at 336.  Thus, appellant is entitled to benefit from the rule announced in Blakely on resentencing for count two.  Consequently, we remand for resentencing on count two in accordance with Blakely,and the Minnesota Supreme Court’s decision in Shattuck.  704 N.W.2d at 141.

            Reversed and remanded.