This opinion will be unpublished and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
Peter Gerard Lonergan,
Filed February 21, 2006
Dakota County District Court
File No. K7-91-1490
Mike Hatch, Attorney General, 1800
James C. Backstrom, Dakota
Peter G. Lonergan, OID #134611, 1000 Lakeshore Drive, Moose
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.
challenges the district court’s denial of his postconviction motion to reduce
or correct his sentence, arguing that the sentence was an upward durational
departure based on impermissible aggravating factors and in violation of his
constitutional rights under Apprendi v.
In September 1991, appellant Peter Gerard Lonergan was charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342 (1990), following a report of sexual abuse by an eight-year old child that appellant babysat. Appellant was subsequently convicted of the offense after a retrial.
Appellant was sentenced to 268 months in prison, double the presumptive guidelines sentence. The district court based the upward durational departure on a multitude of aggravating factors, including vulnerability and age of the victim; appellant’s violation of a position of trust; multiple acts of abuse; terrorization of the victim, including use of an electrical shocking device and a knife; appellant’s threats to kill the victim if he told of the abuse; and appellant’s predatory pattern of behavior.
appellant filed a direct appeal challenging his conviction and sentence. This court affirmed in State v. Lonergan, 505 N.W.2d 349 (Minn. App. 1993), and the
Minnesota Supreme Court denied review on
In April 1997, appellant filed a petition for a writ of habeas corpus to the Federal District Court of Minnesota. His petition was denied on all grounds. The Eighth Circuit declined to review this decision.
February 2003, appellant filed a petition for postconviction relief. The district court denied the petition,
finding that appellant raised, or knew of and had the opportunity to raise, all
of the claims raised in his petition at his prior appeal. This court affirmed the district court in Lonergan v. State, No. A03-453 (Minn.
July 2004, appellant filed a motion for correction or reduction of his sentence
under Minn. R. Crim. P. 27.03, subd. 9, arguing that the aggravating factors
used to support the upward durational departure were improper and violated his
constitutional rights under Apprendi v.
D E C I S I O N
Appellant raises two arguments on appeal. First, appellant argues that his sentence violates his constitutional rights because the aggravating factors supporting the upward durational departure were not found by a jury. Although appellant asserts a variety of constitutional arguments, his arguments rely on the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Respondent contends that Blakely does not apply retroactively to appellant’s sentence, which was final prior to Blakely’seffective date.
In Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), the United States Supreme Court held that any fact,
other than the fact of a prior conviction, that increases the penalty for an
offense beyond the statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt. Apprendi, 530
Further, the Minnesota
Supreme Court recently held that while the Blakely
decision created a new rule of constitutional criminal procedure, it is not
a “watershed” rule and, therefore, will not be applied retroactively to cases
that were final prior to Blakely’s
effective date of June 24, 2004. State v.
Here, appellant was
convicted and sentenced in 1992. This
court affirmed the conviction and sentence, and the Minnesota Supreme Court
denied review on October 19, 1993. The
time for petition for writ of certiorari to the United States Supreme Court
argues that he is entitled to a reduction of his sentence because the
aggravating factors used to support the upward durational departure constitute
an abuse of discretion pursuant to the Minnesota Supreme Court’s decision in Taylor v. State, 670 N.W.2d 584 (
Prior to Blakely, the district court had broad
discretion to depart from a presumptive sentence if aggravating circumstances
were present. State v. Murphy, 545 N.W.2d 909, 917 (
contends that appellant is barred from challenging his sentence under State v. Knaffla, 309
appellant’s argument regarding the impropriety of the aggravating factors is
without merit. Appellant relies on the
Appellant also argues that the district court erred in denying his motion for
postconviction relief under Minn. R. Crim. P. 27.03, subd. 9 on the basis that
a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1 was
the proper mechanism to seek redress.
Rule 27.03, subd. 9 states, “[T]he court at any time may correct a
sentence not authorized by law.” For a
sentence to be unauthorized, it must be contrary to law or applicable
statutes. State v. Humes, 581 N.W.2d 317, 319-20 (