This opinion will be unpublished and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
Jerry King, petitioner,
State of Minnesota,
Anoka County District Court
File No. K9013925
Jerry King, MCF/Moose Lake,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, Seventh Floor, 2100 Third Avenue, Anoka, MN 55303 (for respondent)
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*
Appellant challenges the denial of his petition for postconviction relief in which he argued that his sentence violated his right to a jury trial under Apprendi and Blakely. Because these cases do not apply to appellant’s sentence, we affirm.
In September 2001, appellant was sentenced to 144 months, with five years conditional release, for his conviction of first-degree criminal sexual conduct. The district court stayed execution of sentence and placed appellant on probation with conditions. In September 2003, appellant pleaded guilty to, was convicted of, and was sentenced for a new offense. Appellant admitted that this conviction was a violation of his probation, and his 2001 sentence was executed.
Appellant petitioned for
postconviction relief, requesting vacation of the five-year conditional release
and his “custody status point of 1.”
Appellant relied on Blakely v.
“A petition for postconviction
relief is a collateral attack on a judgment which carries a presumption of
regularity and which, therefore, cannot be lightly set aside.” Pederson
v. State, 649 N.W.2d 161, 163 (
In Apprendi v.
the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
The district court correctly denied appellant’s request for relief under Blakely because appellant received the presumptive guidelines sentence for the crime he committed. The sentencing guidelines provide:
When an offender has been convicted of an offense with a mandatory minimum sentence of one year and one day or more . . . [t]he presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.
Unless a longer mandatory minimum sentence is otherwise required by law or the sentencing guidelines provide for a longer presumptive executed sentence, the court shall presume that an executed sentence of 144 months must be imposed on an offender convicted of violating this section. Sentencing a person in a manner other than that described [here] is a departure from the sentencing guidelines.
Minn. Stat. § 609.342, subd. 2(b) (2000). Appellant’s 144-month sentence was authorized solely on the basis of his conviction of first-degree criminal sexual conduct, which in turn was based on the facts he admitted in his guilty plea. There were no judicially found facts that increased his punishment beyond the presumptive term. The district court did not abuse its discretion in denying the petition on the ground that appellant received a presumptive sentence and his Sixth Amendment rights were not violated.
II. Conditional-release term
Appellant also challenged the imposition of a five-year conditional release. Minn. Stat. § 609.109, subd. 7(a) (2000), provides:
Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section 609.342 . . . the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of section 609.342 . . . the person shall be placed on conditional release for five years, minus the time the person served on supervised release.
The district court correctly concluded that imposition of the
conditional-release term does not violate the Sixth Amendment principles
described in Apprendi and clarified
in Blakely. In State
v. Jones, the supreme court held that a conditional-release term under
Minn. Stat. § 609.109, subd. 7, is “authorized on the basis of the jury
verdict, and does not require any additional findings of fact to be made by the
district court. For statutorily
designated sex offenders it is a mandatory aspect of their sentence.” 659 N.W.2d 748, 753 (
III. Custody-status point
Appellant further contends that he was entitled to postconviction relief because the determination of a custody-status point in connection with imposition of his sentence was also a violation of his Sixth Amendment rights under Blakely. There is no indication in the record that a custody-status point was used in the determination of appellant’s 2001 sentence. But even if a factual basis for this claim existed, the supreme court recently rejected the argument that judicial findings on the existence of a custody-status point in imposing a guidelines sentence violates Blakely. See State v. Allen, 706 N.W.2d 40, 47-48 (Minn. 2005) (noting that the existence of a custody-status point flows from the fact of a prior conviction and is essentially analogous to a prior conviction such that it does not require a jury determination and holding that the district court’s assignment of a custody-status point in determining the presumptive sentence did not violate the Sixth Amendment). There is no merit in appellant’s argument regarding a custody point.
IV. Blakely is not retroactive
The district court did not rely on
nonretroactivity of Blakely in
denying appellant’s petition, but we note that the supreme court’s holding that
Blakely does not apply retroactively
to sentences that were final before Blakely
was released on June 24, 2004, is a further basis for denial of appellant’s
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.