This opinion will be unpublished and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
Jerome Norman Micholski,
Filed February 28, 2005
Morrison County District Court
File Nos. K0-02-629, K3-02-1161, and K9-02-1455
Mike Hatch, Attorney General,
Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota Street, Suite 1800,
John M. Stuart, State Public
Defender, Rochelle R. Winn, Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Jerome Norman Micholski challenges denial of his postconviction petition,
arguing that his sentence violates his Sixth Amendment rights under Apprendi v.
D E C I S I O N
for postconviction relief are collateral attacks on judgments, which carry a
presumption of regularity and, therefore, cannot be lightly set aside. Pederson
v. State, 649 N.W.2d 161, 163 (
Micholski pleaded guilty to two
counts of theft and to one count of receiving stolen property. On March 24, 2003, the district court imposed
a 78-month sentence, an upward durational departure from the presumptive
26-month sentence, for each offense, to run concurrently. The statutory maximum penalty for theft and for
receiving stolen property is 20 years.
argues that his sentence violates his Sixth Amendment rights under Apprendi and Blakely. Under Apprendi and Blakely,any fact
supporting an upward departure from the maximum sentence authorized by the jury’s
verdict must be submitted to a jury and proved beyond a reasonable doubt. Blakely,
Apprendi 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.” Apprendi,
sentence was final in 2003. See O’Meara v. State, 679 N.W.2d 334,