This opinion will be unpublished and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
Leroy Bogan, petitioner,
Filed February 14, 2006
Ramsey County District Court
File Nos. K4-01-1890 & K5-01-1252
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a denial of
postconviction relief, appellant argues that his sentence, an upward durational
departure from the presumptive guidelines sentence, violated the Sixth
Amendment, as interpreted in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Apprendi v.
In April 2001, the state charged appellant Leroy Bogan with third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2000). One month later, the state charged Bogan with two counts of third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2000). In accordance with a plea agreement involving both cases, Bogan pleaded guilty to two counts of third-degree controlled-substance crime, and the state agreed to dismiss the remaining count and to recommend a sentence of 108 months for each offense; sentences to be served concurrently.
On September 18, 2001, the district court sentenced Bogan to 108 months, an upward durational departure from the presumptive guidelines sentencing range of 55 to 59 months. The district court made findings of aggravating factors to support this upward durational departure. Bogan did not file a direct appeal.
In September 2004, Bogan petitioned for postconviction relief from his sentence, relying on Apprendi and Blakely. The district court denied the postconviction petition, and this appeal followed.
D E C I S I O N
The state argues that because Bogan expressly declined to seek retroactive application of Blakely in his petition for postconviction relief, he is not entitled to raise this claim for the first time on appeal.
court will generally not consider matters not argued and considered in the
district court. Roby v. State, 547 N.W.2d 354, 357 (
Petitions for postconviction relief are collateral attacks on judgments
that carry a presumption of regularity and, therefore, cannot be lightly set
aside. Pederson v. State, 649 N.W.2d 161, 163 (
Bogan argues that Blakely did not announce a new rule, and he is, therefore, entitled to benefit from the rule in Apprendi as described in Blakely. He argues in the alternative that Blakely did announce a watershed rule of criminal procedure that applies retroactively to his sentence. There is no merit to either of Bogan’s alternative arguments.
Apprendi v. New Jersey, the United
States Supreme Court held that “[o]ther 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
Here, Bogan was sentenced on
September 18, 2001, and he did not perfect an appeal within 90 days. See
Minn. R. Crim. P. 28.02, subd. 4(3) (requiring party to appeal felony
conviction within 90 days). Therefore,
Bogan’s case was final on December 17, 2001.
See O’Meara v. State, 679 N.W.2d 334, 339 (
Further, in addressing specifically Bogan’s claim to relief under Apprendi, we note that before Blakely, courts looked to the applicable statute, not to the sentencing guidelines, to determine the statutory maximum sentence for an offense. See, e.g., State v. McCoy, 631 N.W.2d 446, 451 n.1 (Minn. App. 2001) (deciding that Apprendi was inapplicable to the defendant’s sentence, which was less than half of the statutory maximum sentence of 25 years). Here, the statutory maximum sentence for third-degree controlled-substance crime was 240 months. Minn. Stat. § 152.023, subd. 3(a) (2000). Bogan’s sentence is 108 months. Because this sentence does not exceed the statutory maximum sentence, no relief is available to Bogan under Apprendi.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.