This opinion will be unpublished and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
Thomas Wayne Evenstad, petitioner,
Filed February 7, 2006
Hennepin County District Court
File No. 98023039
Thomas Wayne Evenstad, OID #172482, Minnesota Correctional Facility, Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, 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 postconviction relief, appellant argues that the district court erred in ruling that he was not entitled to relief 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), from a custody-status point added by the district court and a five-year conditional-release term imposed pursuant to Minn. Stat. § 609.109, subd. 7 (1998). Because Apprendi and Blakely are not applicable to appellant’s sentence, we affirm.
In 1999, a jury found appellant Thomas Wayne Evenstad guilty of first- and third-degree criminal sexual conduct under Minn. Stat. §§ 609.342, .344 (1998). Based on a severity level of eight and four criminal-history points (including one custody-status point), the district court sentenced him to 139 months in prison. He also received a conditional-release term of five years pursuant to Minn. Stat. § 609.109, subd. 7 (1998). This court affirmed Evenstad’s conviction on June 6, 2000, and the supreme court denied his petition for review on August 15, 2000. Approximately one year later, Evenstad filed a petition for postconviction relief, claiming ineffective assistance of counsel, newly discovered evidence, and failure by the prosecution to reveal favorable evidence. This court affirmed the dismissal of the petition but vacated the conviction for third-degree criminal sexual conduct. Evenstad v. State, No. C4-02-1421 (May 20, 2003). On July 20, 2004, Evenstad brought a second petition for postconviction relief, arguing that his sentence violated the Sixth Amendment under Apprendi and Blakely. The district court denied his second petition, and this appeal followed.
D E C I S I O N
Evenstad first argues that the district
court’s addition of a custody-status point to his criminal-history score increased
his sentence by ten months and violated the Sixth Amendment because the
sentence was not based on a prior conviction or a jury verdict. “Other 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 v.
A defendant’s criminal-history score is
one of the axes on the Sentencing Guidelines grid that determines the
Evanstad relies on Apprendi and Blakely to
support his argument. Apprendi was
decided on June 26, 2000, 20 days after
this court affirmed his conviction on direct appeal. But Evenstad did not raise the Apprendi issue in his first petition for
postconviction relief filed in August 2001, and he is now barred from raising
it in subsequent petitions. See Wayne v. State, 601 N.W.2d 440, 441
Moreover, the supreme court recently
rejected the precise argument made by Evenstad that the Sixth Amendment
prevents a district court from adding a custody-status point to a defendant’s
criminal-history score based on judicial findings. Because the facts relevant to a defendant’s
criminal-history score flow directly from a prior conviction, “the district
court’s assigning [the defendant] a custody-status point to calculate his
criminal history score [does] not violate the Sixth Amendment.” State
v. Allen, 706 N.W.2d 40, 48 (
Evenstad also argues that the five-year
conditional-release term violates the Sixth Amendment because it extends his
penalty beyond the maximum guidelines sentence but is not based on a prior
conviction or jury findings.
“Notwithstanding the statutory maximum sentence otherwise applicable to
the offense or any provision of the sentencing guidelines, . . . [i]f
the person was convicted for a violation of section 609.342 . . . ,
the person shall be placed on conditional release for five years, minus the
time the person served on supervised release.”
Minn. Stat. § 609.109, subd.
7(a) (1998). Ignoring the fact
that neither Apprendi nor Blakely applies to Evenstad’s sentence
for reasons already stated, the district court’s imposition of a mandatory
five-year conditional-release term does not violate the Sixth Amendment. See State v. Jones, 659 N.W.2d 748,