This opinion will be unpublished and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
Steven Patrick Breitkreutz, petitioner,
Filed February 14, 2006
Affirmed in part, reversed in part, and remanded
Carlton County District Court
File No. K3-96-1067
John M. Stuart, State Public Defender, Lawrence Hammerling,
Assistant State Public Defender,
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
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, 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.
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.
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 (
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
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
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
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 (
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 (
Respondent contends that
appellant is barred from challenging the upward departure under State v. Knaffla, 309
Here, appellant again
challenges the imposition of consecutive sentences as an impermissible upward
departure. Appellant relies on the
But even accepting
appellant’s argument that the “multiple incidents of abuse” factor relied upon
by the district court is now improper pursuant to
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 (
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.