This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Kevin Felipe Sebasky, petitioner,





State of Minnesota,



Filed February 28, 2006


Lansing, Judge


Ramsey County District Court

File Nos. K4-94-2243, K6-94-2048


John D. Ellenbecker, 803 West St. Germain Street, P.O. Box 1127, St. Cloud, MN 56301 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Kevin Sebasky appeals from the summary denial of his postconviction petition for a reduction in sentence on his 1995 conviction of three counts of first-degree criminal sexual conduct.  Sebasky maintains that the upward departure based on judicial findings of aggravating factors violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because Blakely does not apply retroactively and because Sebasky’s direct appeal of his conviction and sentence was final before the Supreme Court issued Blakely, the holding of Blakely does not provide a basis for relief, and we affirm.


            In 1994 the state charged Kevin Sebasky with three counts of first-degree criminal sexual conduct arising from incidents that occurred between 1990 and 1994.  A jury found him guilty of all three counts in February 1995.

            At sentencing, the district court departed from the presumptive guidelines sentences.  The district court determined that a number of aggravating factors existed:  the two victims were subjected to multiple incidents of abuse for an extended period of time, both victims were subjected to multiple types of abuse, the conduct involved a pattern of grooming and seduction, Sebasky held a position of trust and authority over each victim, Sebasky showed pornographic images to both victims, and Sebasky knew that he was HIV-positive when he committed the acts.  Based on these factors, the judge imposed significant upward departures on Sebasky’s three sentences.

            Sebasky appealed from his conviction and sentencing in 1996.  We affirmed the district court, and the supreme court denied review.  State v. Sebasky, 547 N.W.2d 93 (Minn. App. 1996), review denied (Minn. June 19, 1996).

            In October 2004 Sebasky petitioned for postconviction relief, arguing that  Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),should apply retroactively to invalidate his sentences, which exceeded the sentencing guidelines based on judicially determined facts and therefore violated his Sixth Amendment right to a jury determination.  The district court denied his petition without a hearing, and Sebasky appeals.


A postconviction-relief petition is a procedural mechanism to obtain collateral review of a criminal conviction.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  A petitioner has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2004).  Summary denial of a petition is appropriate when the grounds alleged in the petition are insufficient to warrant relief.  Id., subd. 1.  On appeal, we review a district court’s summary denial of a postconviction hearing under an abuse-of-discretion standard.  McDonough v. State, 707 N.W.2d 384, 387 (Minn. 2006).

The Minnesota Supreme Court has determined that the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which Sebasky seeks to apply to his criminal-sexual-conduct convictions,does not apply retroactively to cases on collateral review.  See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (concluding that Blakely states new, but not watershed, rule of constitutional criminal procedure and thus is unavailable for retroactive application on collateral review); see also State v. Henderson, 706 N.W.2d 758, 760 n.1 (Minn. 2005) (“Blakely does not apply retroactively to cases on collateral review.”); State v. Allen, 706 N.W.2d 40, 44 n.2 (Minn. 2005) (restating inapplicability of Blakely to cases on collateral review).

            Sebasky was convicted and sentenced in 1995.  We affirmed the district court’s conviction and sentence, and the supreme court denied review in 1996.  Sebasky’s conviction became final in 1996 when he exhausted the availability of direct review.  Because his appeal was final before the new rule in Blakely was announced, Sebasky may not invoke Blakely to support his petition for collateral review of his sentence.  Consequently, the facts alleged in the petition are insufficient to warrant relief and the district court did not abuse its discretion by summarily denying Sebasky’s postconviction-relief petition.