This 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be unpublished and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
Shaun Emery White,
State of Minnesota,
Filed January 24, 2006
Hennepin County District Court
File No. 01036331
Bradford Colbert, Legal
Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul,
Minnesota 55105 (for appellant)
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Amy Klobuchar, Hennepin County
Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center,
Minneapolis, Minnesota 55487 (for respondent)
and decided by Lansing, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S
H E D O P I N I O N
In this appeal from an order
denying a postconviction petition challenging appellant’s EJJ sentencing on a
second-degree murder conviction, appellant argues that the postconviction court
erred in ruling that his challenge was procedurally barred under Minn. Stat. § 244.11,
subd. 3(b) (1998), because his stay of execution was a mandated stay of
execution, not a dispositional departure.
Appellant also asserts that the departure based on judicial findings
violated his right to a jury trial under Blakely
v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), and that Blakely applied retroactively to his
sentence. Appellant further argues that an
upward durational departure based solely on his plea agreement was improper
under State v. Misquadace, 644 N.W.2d
2002), and that Misquadace applies
because his conviction was not yet final when Misquadace was released. We
conclude that Minn. Stat. § 244.11, subd. 3(b), does not apply as a procedural bar
to appellant’s claim for postconviction relief.
But because appellant’s case became final before the rulings in Blakely and Misquadace, which do not apply retroactively, and appellant entered
a valid plea under the law applicable at the time of his conviction, we affirm.
an extended jurisdiction juvenile (EJJ) proceeding in 1999, appellant Shaun Emery
White pleaded guilty to aiding and abetting second-degree intentional
murder. The factual basis for White’s
plea established that November 1988 he was on his way to a party in a Minneapolis apartment building
with a companion who had a .22 caliber handgun.
When they saw three men walking up the hallway stairs, White agreed with
the companion’s plan to rob the men. During
the robbery, White’s companion shot and killed one of the men.
state charged White by amended petition in juvenile court with aiding and
abetting first-degree felony murder; aiding and abetting second-degree
intentional murder; aiding and abetting attempted aggravated robbery; and
aiding and abetting aggravated robbery. Based
on negotiations between the parties, the district court imposed an EJJ
designation, and White pleaded guilty in April 1999 to second-degree intentional
murder. The district court imposed a
stayed 360-month sentence, representing an upward durational departure from the
presumptive 306-month sentence, with the stated aggravating factor that a
robbery occurred during the commission of the crime.
April 2001, White admitted violating probation and waived his right to adult
certification and a probation-revocation hearing. The district court revoked his EJJ status and
maintained the 360-month stayed adult sentence, with adult probation. One year later, the district court held a
formal hearing and revoked White’s probation on findings that he violated the
conditions of probation.
2004, White—citing State v. Misquadace,
644 N.W.2d 65 (Minn.
2002)—filed a postconviction petition alleging that the district court erred by
departing from the presumptive sentence solely on the basis of his plea. He later added a claim that his sentence was
unconstitutional under Blakely v.
Washington, 542 U.S.
296, 124 S. Ct.
2531 (2004), because it was based on judicial findings. The district court denied the petition,
concluding that Minn. Stat. § 244.11, subd. 3(b) (1998), operated to bar his
claims; that the rules in Misquadace and
Blakely were inapplicable to his
sentence; and that his sentence was proper under the law existing at the time
of his sentencing. White appeals the
denial of the petition for postconviction relief.
D 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). A postconviction court’s findings
are afforded great deference, and its decision will not be reversed absent an
abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But this court reviews de novo a
postconviction court’s legal conclusions.
Butala v. State, 664 N.W.2d
333, 338 (Minn. 2003); State v. Petschl, 692 N.W.2d 463, 470 (Minn.
App. 2004), review denied (Minn. Jan. 20, 2005), cert.
denied, 125 S. Ct. 2912 (June 13, 2005).
asserts that the district court erred in applying Minn. Stat. § 244.11, subd. 3(b)
(1998), to determine that his sentencing appeal was untimely. We agree.
Under this subsection of the statute,
If a defendant agrees to a plea agreement and is given a stayed sentence, which
is a dispositional departure from the presumptive sentence under the Minnesota sentencing
guidelines, the defendant may appeal the sentence only if the appeal is taken:
within 90 days of the date sentence was pronounced; or
before the date of any act committed by the defendant resulting in revocation
of the stay of sentence; whichever occurs first.
statute further provides that “a defendant . . . who has failed to appeal as
provided in [subsection b] may not file a petition for postconviction relief
under chapter 590 regarding the sentence.”
Id., subd. 3(c) (1998).
district court held that appellant’s petition was barred by the application of
the statute, reasoning that his stayed sentence was a dispositional departure
from the presumptive guidelines sentence as stated in the Minnesota Sentencing
Guidelines. See Minn.
Sent. Guidelines IV (stating that presumptive sentence for second-degree murder
is an executed prison sentence). Under
this reasoning, appellant’s failure to appeal his sentence within 90 days after
the date it was pronounced would make his postconviction petition
in EJJ proceedings, “the [EJJ] statute mandates that the initial disposition of
the adult sentence is a stay of execution.”
State v. Bollin, 670 N.W.2d
605, 609 (Minn.
App. 2003), review denied (Jan. 20,
2004); see Minn. Stat. § 260.126,
subd. 4(a)(2) (1998)
(stating that if an EJJ prosecution results in guilty plea or finding of guilt,
district court “shall” impose an adult criminal sentence, with execution stayed
on condition that offender not violate provisions of disposition order and not commit
a new offense). Therefore, because the
initial disposition of appellant’s sentence under EJJ was required to be a stay of execution, the district court did not
depart dispositionally at the time sentence was imposed. Thus, Minn. Stat. § 244.11, subd. 3(b) does
not apply to bar appellant’s petition for postconviction relief.
district court, as an alternate reason for dismissing the petition, held that
appellant’s delay waived his right to challenge the sentence. Delay may be a relevant factor in determining
whether postconviction relief should be granted. See Fox v. State, 474 N.W.2d
821, 826 (Minn.
1991) (stating that “appellant’s delay in seeking relief is a relevant
consideration in determining whether [postconviction] relief should be
granted”). But absent prejudice shown by
the state, delay by itself does not generally warrant barring a petition as
untimely. See, e.g., Bolinger v. State, 647 N.W.2d 16, 22 (Minn. App. 2002)
(declining to hold that appellant’s petition for postconviction relief was
barred as untimely, in the interest of justice, where state failed to allege
prejudice from denial of petition).
Because White waited only two years after the revocation of his
probation, and the state has failed to allege prejudice specific to White’s
request for sentencing relief, the district court also erred in concluding that
his delay in seeking postconviction relief waived his claim.
we conclude that Minn. Stat. § 244.11, subd. 3(b), does not preclude
appellant’s request for postconviction relief, we need not consider his further
argument on the unconstitutionality of that statute.
has also argued that the district court erred by failing to provide him with
notice of his right to appeal his sentence under Minn. R. Crim. P. 27.03, subd.
5. Because the record does not reflect
that appellant presented this argument to the district court, we need not
consider it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts
will not generally consider matters not raised and considered in district
court). But even if we were to consider
this issue, because we have determined that the postconviction court properly
considered appellant’s sentencing challenge, any error in failing to provide
notice was harmless.
further argues that his sentence is unconstitutional because it violates his
right to have the facts authorizing an upward sentencing departure found by a
jury under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). Blakely followed Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), in which the United States Supreme Court held that any facts,
other than the fact of a prior conviction, that increase the penalty for an
offense beyond the statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt. 530 U.S. at 490, 120 S. Ct.
at 2362–63. The Blakely decision
modified Apprendi by concluding that “the relevant ‘statutory maximum’
is not the maximum sentence a judge may impose after finding additional facts,
but the maximum [a judge] may impose without
any additional findings.” 542 U.S. at 303–04, 124 S. Ct.
at 2537. 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) (as amended on petition for rehearing Oct. 6, 2005).
acknowledges that his case became final before the decision in Blakely,
which was released in June 2004. The
Minnesota Supreme Court recently held that Blakely provides “a new rule
of constitutional criminal procedure unavailable for collateral use,” but it is
not a “watershed” rule requiring retroactivity.
State v. Houston,
702 N.W.2d 268, 273 (Minn.
2005). The court in Houston
stated that “extending the benefit of the Blakely
rule beyond those cases pending on direct review at the time of the
announcement of the rule would undermine the retroactivity policy of validating
good-faith state court decisions and preserving finality.” Id. Because White’s case was final before the
ruling in Blakely, and because Blakely does not apply retroactively,
White is not entitled to benefit from the rule in Blakely.
also alleges that his sentence is unconstitutional under Ring v. Arizona, 536 U.S.
584, 122 S. Ct.
2428 (2002). In Ring, the United States Supreme Court held that because the
defendant’s death sentence exceeded the statutory maximum of life imprisonment,
it could be constitutionally imposed under Apprendi
only if the necessary aggravating factors were found by a jury. Id. at 609, 122 S. Ct.
at 2443. But until Blakely was decided in 2004, courts looked to the applicable
statute, not to the sentencing guidelines, to determine the maximum sentence
for an offense. Houston,
702 N.W.2d at 271. When White was
sentenced, the statutory maximum sentence for second-degree intentional murder
was 40 years. Minn. Stat. § 609.19, subd. 1 (1998). Because White’s 360-month sentence did not
exceed the statutory maximum for second-degree intentional murder, his sentence
did not violate Ring.
White challenges the postconviction court’s determination that the rule in State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) did not
govern the terms of his sentencing. In Misquadace, the Minnesota Supreme Court
held that a plea agreement, standing alone, did not provide a sufficient basis
for departure from the sentencing guidelines.
Id. at 72. In so doing, the supreme court refined the
rule in State v. Givens, 544 N.W.2d
774, 777 (Minn. 1996), which held that a defendant may, by negotiated plea
agreement, relinquish his right to be sentenced under the guidelines. The supreme court stated that the new rule of
law would apply to “all pending and future cases.” Misquadace,
644 N.W.2d at 72. The court later determined that because Misquadace announced a new rule of law,
it would not be applied retroactively to a conviction that had become final
after the date of that decision. Hutchinson v. State, 679 N.W.2d 160, 165 (Minn. 2004).
argues that although he did not file a direct sentencing appeal, his case was
“pending” when Misquadace was decided
because the time to appeal his sentence following its execution at the
probation-revocation proceedings had not yet expired. But appellant’s sentence became “final” for
purposes of determining retroactivity in 1999 when he was convicted and
sentence was imposed, though not yet executed, and the time to file a direct
appeal expired. Hutchinson,
679 N.W.2d at 162; see also Minn. R.
Crim. P. 28.02, subd. 2 (stating that judgment shall be consideredfinal “when there is a judgment of conviction
. . . and sentence is imposed or the imposition of sentence is stayed”). Moreover, this court has recently held that a
probation-revocation appeal does not extend the date of finality for purposes
of applying the rule in Blakely v.
Washington to sentence departures. State v. Losh, 694 N.W.2d 98, 101 n.2 (Minn. App. 2005), review
June 28, 2005). As in Losh,
appellant knew the duration of his sentence and had the opportunity to contest
the sentence when it was first imposed. Thus,
the rule announced in Misquadace does
not apply to appellant’s sentence.
maintains that, even if Misquadace
does not apply, he did not waive his right to be sentenced under the sentencing
guidelines, as required by Givens. See
Givens, 544 N.W.2d at 777 (stating requirement of a knowing, voluntary, and
intelligent waiver of right to guidelines sentence). The plea hearing transcript and the order of
disposition in this EJJ case do not definitively indicate whether appellant
waived his right to a guidelines sentence. But if he did not waive the right to a
guidelines sentence, appellant’s proper remedy would be a plea withdrawal, not
the sentence reduction he is requesting as a reformation of the plea agreement
and to which the law does not entitle him.
When a defendant does not seek to withdraw his plea, an appellate court
will not impose that remedy upon him. See State
v. Garcia, 582 N.W.2d 879, 882 (Minn.
1998) (finding grounds to withdraw plea but leaving choice to defendant).
the district court did not err in departing from the presumptive sentence on
the basis of appellant’s plea under Givens,
the law applicable at the time of his conviction.