This opinion will be unpublished and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
Calvin Thomas King, petitioner,
Filed January 31, 2006
Hennepin County District Court
File No. 02016749
Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy J. Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On postconviction appeal, appellant contends that he is
entitled to the retroactive application of the rule in Blakely v. Washington, 542
On June 19, 2002, appellant Calvin Thomas King pleaded guilty to a drug offense listed as a severity level II offense under the Minnesota Sentencing Guidelines. He had six or more criminal-history points, and his presumptive sentence was 21 months executed. On the plea date, the district court imposed a 60-month stayed sentence and placed King on probation.
The duration of King’s sentence was an upward departure from the sentencing guidelines and was based on the district court’s finding under Minn. Stat. § 609.1095, subd. 4 (2002), that King was a career offender in that he had a prior criminal-history score of six or more felonies and his current offense was part of a “pattern of criminal conduct.” King’s stayed sentence and probation constituted a downward dispositional departure from the presumptive sentence.
After King violated his probation, the district court revoked his probation and ordered the execution of his sentence on August 29, 2002. King did not appeal his conviction, sentence, or probation revocation.
In 2004, the United States
Supreme Court held that an accused is entitled to a jury trial as to any fact,
other than a prior conviction, that would increase the accused’s sentence
duration beyond the statutory maximum sentence.
Blakely v. Washington, 542
Contending that he is entitled to a jury trial on the issue of whether his current offense was part of a pattern of criminal conduct, King filed a petition for postconviction relief on November 3, 2004. The district court denied the petition, holding that Blakely is not applicable retroactively to King’s sentence. King appealed.
D E C I S I O N
We begin by noting that the Blakely rule applies to upward
durational departures under the Minnesota Sentencing Guidelines. State
v. Shattuck, 704 N.W.2d 131 (
King contends that, although
his conviction was final when Blakely was
decided, he is entitled to the retroactive application of the Blakely rule to the upward durational
departure component of this sentence because Blakely was merely an extension of Apprendi v.
King’s contention is
answered by the controlling authority of State
v. Houston, 702 N.W.2d 268 (
There are two exceptions to
the retroactivity rule explained in O’Meara. The first relates to the lack of power in
the lawmaking authority to proscribe the conduct at issue, and the second to
“watershed” rules of constitutional procedure.
Teague v. Lane, 489