This opinion will be unpublished and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
Nathan Daniel Clark, petitioner,
Filed December 6, 2005
Hennepin County District Court
File No. 99115263
Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, #1610W, St. Paul, MN 55101 (for appellant)
Mike Hatch, Attorney General, 1800
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that the denial of an evidentiary hearing on the alleged ineffective assistance of appellate counsel constitutes an abuse of discretion and that his sentence violates the rule enunciated in Blakely. Appellant also raised several pro se arguments. Because we conclude that the district court did not abuse its discretion by denying an evidentiary hearing, that appellant’s waiver was adequate under the controlling law at the time of his sentence, that Blakely is inapplicable to appellant’s sentence, and that appellant’s pro se arguments lack legal merit, we affirm.
In September 1999, appellant Nathan Daniel Clark contacted the authorities to report a robbery. When police officers arrived at a residence shared by appellant and his girlfriend, they discovered appellant’s girlfriend was dead as a result of strangulation. The victim’s face and chest were purple, some of her fingernails were broken, a clump of her hair was torn from her head, and her t-shirt and a ripped pair of underwear were lying on the floor nearby. The victim also had deep bruises on her arms and a small laceration on her cheek. Appellant claimed that two suspects had entered the residence looking for money and had beaten the victim. Appellant told the officers that the robbery suspects had left ten minutes prior to the officers’ arrival; but an autopsy report indicated that the victim had died several hours prior to the officers’ discovery of the body.
was charged with first-degree murder.
During plea negotiations, the parties agreed that appellant would enter
a guilty plea to second-degree unintentional murder and the prosecutor would
recommend an enhanced sentence not to exceed 378 months. On
On February 24, 2000, appellant was sentenced to 378 months in prison, an upward departure from the presumptive guidelines sentence. At the sentencing hearing, the district court based the upward durational departure on the following factors:
[F]irst, that it was negotiated between the parties. Secondly, it’s based on the fact that the murder took place in the victim’s own home. Three, that the defendant lied to the police and rather than getting help for the victim, attempted to hide the fact that he was in fact the murderer and the fact that the history of the domestic violence, coupled with the cruelty with which the victim was treated at the time of the homicide would have justified a conviction for murder in the first degree.
appellant contacted the State Public Defender’s office regarding a possible
appeal. In April 2000, the public
defender’s office notified appellant that it had received his preliminary
information. On May 4, 2000, an
assistant public defender stated in a letter to appellant that, after
thoroughly reviewing his case, an appeal of his sentence was without merit because
its terms were negotiated. The assistant public defender stated that appellant could
contact her with any concerns regarding his case. Appellant did not file a direct appeal before
the time for appeal expired on
In July 2002, appellant filed a pro se petition for postconviction relief, requesting modification and reduction of his sentence. Appellant argued that the aggravating factors found by the district court to justify departure from the presumptive sentence were improper and inapplicable. The district court denied appellant’s petition.
May 2004, appellant filed a second pro se petition for postconviction relief,
arguing prosecutorial misconduct, ineffective assistance of trial counsel, and
insufficiency of the evidence. Subsequently,
an assistant public defender was appointed to represent appellant. In an amended petition for postconviction
relief, appellant argued ineffective assistance of appellate counsel based on
the assistant public defender’s decision not to file a direct appeal;
inadequate waiver of the right to be sentenced under the Minnesota Sentencing
Guidelines; and a Blakely violation
in the imposition of the upward departure.
The amended petition requested an evidentiary hearing, vacation of the
previously imposed sentence, and imposition of the presumptive sentence. The district court denied the petition for
postconviction relief in its order of
D E C I S I O N
“On appeal from a summary denial of
postconviction relief, we examine whether sufficient evidence exists to support
the postconviction court’s findings and will reverse those findings only upon
proof that the postconviction court abused its discretion.” Ives v.
State, 655 N.W.2d 633, 635 (
Appellant raises three issues on appeal. First, appellant contends that his petition for postconviction relief asserting ineffective assistance of appellate counsel raises material issues of fact that entitle him to: (a) an evidentiary hearing, and (b) the right to pursue a direct appeal after the statutory deadline.
The district court
must grant an evidentiary hearing for a postconviction appeal “[u]nless the
petition and the files and records of the proceeding conclusively show that the
petitioner is entitled to no relief[.]”
Here, there were
no facts in dispute that required an evidentiary hearing. See id.
(“To establish ineffective assistance of appellate counsel, a petitioner
must demonstrate that appellate counsel’s performance was objectively
unreasonable and that the unreasonable performance prejudiced him.”) (citing Strickland v. Washington, 466
contacted appellant three weeks prior to the 90-day deadline, no prejudice
resulted from the public defender’s action.
It was appellant who waived the right to appeal by failing to timely file
a notice of appeal or to request an extension to file an appeal within the time
remaining for appeal. See Spann v. State, 704 N.W.2d 486, 491
argues that he is entitled to pursue an untimely direct appeal due to counsel’s
failure to file a timely appeal. Respondent
contends that the relief sought by appellant in his petition, i.e., a direct
appeal after the statutory deadline, is not available to him under
appellate jurisdiction is limited to that provided by applicable rule or
statute. State v. Verschelde, 585 N.W.2d 429, 432 (
Second, appellant contends
that he is entitled to postconviction relief because the upward durational
departure imposed by the sentencing court violates his constitutional rights
pursuant to Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004). On appeal, we review a
postconviction court’s decision to grant or deny relief under an
abuse-of-discretion standard. Hale v. State, 566 N.W.2d 923, 926 (
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63
(2002), 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. In Blakely, 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
A. Waiver of Right to Jury Trial on Aggravating Factors
First, appellant contends he did not knowingly, voluntarily and intelligently waive his right to have a jury trial on the existence of aggravating factors when he entered his guilty plea and agreed to an enhanced 378-month sentence. Respondent argues that appellant’s waiver of his right to be sentenced under the guidelines was adequate under the controlling law at the time.
The law at the
time of appellant’s guilty plea was that defendants may relinquish their right
to be sentenced under the guidelines, i.e., agree to an upward departure as
part of a plea bargain. State v. Givens, 544 N.W.2d 774, 777 (
Here, the district court advised appellant of his right to proceed to trial and advised him that the 378-month sentence was an upward departure in excess of the sentencing guidelines. Appellant acknowledged his understanding of these rights both on the record at the guilty plea hearing and in writing. The district court and appellate counsel also questioned appellant on the record to determine whether he understood that he was giving up his right to a jury trial, whether he had enough time to consult with his attorney, and whether he was freely and voluntarily pleading guilty. Counsel also questioned appellant to determine whether a valid factual basis existed for the plea and for the upward departure, including whether there had been a pattern of domestic abuse between victim and appellant, that the murder took place in the victim’s home, and whether appellant concealed information and was dishonest with the police. Following the hearing, the district court concluded that appellant knowingly, intelligently, and voluntarily waived his right to be sentenced under the guidelines pursuant to the controlling law at the time, i.e., Givens. Based on our review of the record, the district court’s conclusion was adequately supported by the record.
B. Retroactive Application of Blakely
Appellant argues that the imposition of the upward durational departure absent a waiver of his right to a jury trial to determine the existence of aggravating factors violates his constitutional rights under Blakely. Appellant contends that Blakely applies retroactively to his sentence, and therefore, controls the adequacy of his waiver rather than Givens. Respondent contends that Blakely does not apply retroactively to appellant’s sentence, which was final prior to Blakely’s effective date.
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
v. State, 679 N.W.2d 334, 339-40 (
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
Third, appellant raises several arguments in his pro se brief, none of which merit reversal of the district court’s denial of postconviction relief. Appellant’s arguments relating to ineffective assistance of appellate counsel, upward departure, and sentencing either duplicate issues discussed above or lack legal merit.