This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-737

 

 

Steven Patrick Breitkreutz, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed ­­­February 14, 2006

Affirmed in part, reversed in part, and remanded

Dietzen, Judge

 

Carlton County District Court

File No. K3-96-1067

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Marvin E. Ketola, Carlton County Attorney, Carlton County Courthouse, P.O. Box 300, Room 202, Carlton, MN 55718; and

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.


U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court’s denial of postconviction relief, arguing that the imposition of consecutive sentencing is an impermissible upward departure in violation of his constitutional rights under Blakely and based on improper aggravating factors.  Appellant also argues that his sentences were erroneously calculated.  Because Blakely does not apply retroactively to appellant’s sentence and appellant’s other claim is without merit, we affirm in part; however, because the sentencing court miscalculated appellant’s sentences, we reverse in part and remand for resentencing. 

FACTS

In August 1996, appellant Steven Patrick Breitkreutz was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b) (1996), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(b) (1996).  The state alleged that appellant repeatedly sexually abused his minor stepson, R.N., over a period of two years.  At the beginning of the alleged abuse, R.N. was barely 12 years old. 

Subsequently, appellant was convicted of all three counts and sentenced to a mandatory minimum sentence of 36 months for the second-degree conviction and concurrent 122 and 146-month sentences for the first-degree convictions.  The district court ordered that the 146-month sentence be served consecutively to the 36-month sentence, with a total sentence of 182 months.  The following day, the district court amended its order by making the 36-month sentence consecutive to the 146-month sentence.  The district court determined that the sentences constituted an upward departure justified by a variety of factors, including appellant’s particular cruelty toward the victim, including physically assaulting the victim when he reported the abuse; the emotional and psychological impact on the victim who suffered suicidal thoughts, self-mutilation, sexual identity issues, and depression as a result of the abuse; and “the multiplicity of violations that [the victim] testified about, and . . . the multiple convictions that the jury, therefore, must have believed or found, I think that there are some—that this is significantly more serious than the normal single conviction of any one of these things[.]” 

            Appellant filed a notice of appeal, but then moved this court to dismiss his appeal in order to pursue postconviction relief.  This court granted the motion.  In June 1999, appellant filed a petition for postconviction relief, alleging ineffective assistance of counsel.  The district court denied the petition, and appellant filed a combined direct and postconviction appeal. 

On appeal, appellant challenged his convictions, arguing ineffective assistance of counsel, and that his convictions arose from a single behavioral incident.  In a supplemental pro se brief, appellant also challenged his consecutive sentence as an improper departure and alleged prosecutorial, judicial, and juror misconduct.  In March 2000, this court affirmed the denial of postconviction relief.  See Breitkreutz v. State, 2000 WL 249373 (Minn. App. 2000).  Appellant filed a petition for review with the Minnesota Supreme Court, which was denied on April 25, 2000. 

In August 2004, appellant filed a second petition for postconviction relief pro se.  Thereafter, a supplemental petition for postconviction relief was submitted by appellant’s counsel challenging appellant’s consecutive sentence as an impermissible upward departure under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Taylor v. State, 670 N.W.2d 584 (Minn. 2003).  The district court denied the petition, and this appeal follows. 

D E C I S I O N

I.

 

Appellant raises three arguments on appeal.  First, appellant contends that he is entitled to postconviction relief because the consecutive sentence imposed by the district court constituted an upward departure in violation of his constitutional rights under 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’s effective date. 

In Apprendi v. New Jersey, 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.  530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  The Blakely decision modified Apprendi by concluding that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings.”  542 U.S. at 303-04, 124 S. Ct. at 2537 (quotation omitted).  The Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).   

Further, the Minnesota Supreme Court recently held that while the Blakely decision created a new rule, it is not a “watershed rule” and will not be applied retroactively to cases that were final prior to Blakely’s effective date of June 24, 2004.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  Here, appellant concedes that his case was final prior to Blakely, but asks this court to reconsider the issue of Blakely’s retroactive effect.  But the supreme court has decided the issue, and this court has no authority to overrule decisions of the supreme court.  Mueller v. Theis, 512 N.W.2d 907, 912 (Minn. App. 1994), review denied (Minn. Apr. 28, 1994).  Because appellant’s case was final prior to Blakely’s effective date, appellant is not entitled to benefit from the rule enunciated therein.   

II.

            Second, appellant argues that the aggravating factors used to support the upward departure are impermissible pursuant to the Minnesota Supreme Court’s decision in Taylor v. State, 670 N.W.2d 584 (Minn. 2003).  

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 (Minn. 1996).  We will not reverse the district court’s decision if there is adequate support for the district court’s reasons or if there is sufficient evidence in the record.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). 

Respondent contends that appellant is barred from challenging the upward departure under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because appellant challenged his consecutive sentence as an improper upward departure in a prior appeal.  Knaffla provides:  “where a direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Id. at 252, 243 N.W.2d at 741.  This includes all claims that appellant should have known of at the time of appeal.  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005).  The two recognized exceptions to this rule involve (1) claims that are so novel that their legal basis was not available on direct appeal, and (2) the petitioner did not “deliberately and inexcusably” fail to raise the claim on direct appeal and fairness requires its consideration.  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (quotation omitted).

Here, appellant again challenges the imposition of consecutive sentences as an impermissible upward departure.  Appellant relies on the Taylordecision to support his new argument, i.e., that multiple uncharged incidents of sexual abuse are an improper basis for departure, which is a new rule warranting an exception to Knaffla.  670 N.W.2d 584, 588-89. 

But even accepting appellant’s argument that the “multiple incidents of abuse” factor relied upon by the district court is now improper pursuant to Taylor, other factors found by the district court, i.e., particular cruelty and emotional and psychological harm to the victim, are supported by the record, and constitute “substantial and compelling circumstances” for which the court could depart durationally.  See, e.g., State v. Cermak, 344 N.W.2d 833, 840 (Minn. 1984) (holding that offender acts with particular cruelty when he threatens to break every bone in the victim’s body if victim reports sexual abuse); see also State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992) (psychological and emotional injury may justify upward departure).  And the district court needs only one valid basis to support an upward departure from the sentencing guidelines.  See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984).  Therefore, the district court’s imposition of an upward durational departure does not constitute an abuse of discretion. 

III.

            Third, appellant argues that the sentencing court erred in its calculation of his criminal history scores, resulting in the imposition of a total sentence of 182 months, rather than 158 months.  Respondent agrees that an error in calculation occurred and requests that this court modify appellant’s sentences from 182 months to 158 months.  

The district court calculated the criminal history scores using the Hernandez method, beginning with the 36-month sentence for the second-degree conviction.  See State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981) (when sentencing on the same day for multiple offense which are not part of the same behavioral incident, the court may increase a defendant’s criminal history score as each sentence is imposed).  However, when the district court re-ordered the imposition of the sentences, it failed to re-calculate the criminal history scores.  Had it done so, the first-degree sentences would have been 98 months and 122 months, based on criminal history scores of 1.5 and 3, respectively, rather than 3 and 5.  Properly calculated, the consecutive sentences total 158 months.
Because the sentencing court miscalculated appellant’s sentence, we reverse and remand for resentencing consistent with this opinion. 

            Affirmed in part, reversed in part, and remanded.