This opinion will be unpublished and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
Keith Allen Lind, petitioner
Filed April 4, 2006
Carlton County District Court
File No. K1-96-564
Stuart, State Public Defender, Lawrence Hammerling, Deputy State Pubic
Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower,
445 Minnesota, Street, St. Paul,
Pertler, Carlton County Attorney, 202 Courthouse,
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from denial of his
postconviction petition, appellant argues that (1) the double durational
departure violated his Sixth Amendment right to a jury under Apprendi v.
In 1998, appellant Keith Allen Lind was convicted of two counts of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(a) (1994), and the district court imposed a 172-month sentence, which was a double durational departure from the presumptive sentence. The court found that factors, such as the victim’s vulnerability, the psychological impact on the victim, the multiple instances of abuse, violation of the victim’s zone of privacy, and Lind’s position of authority were substantial and compelling reasons for a departure.
2002, Lind filed a combined direct and postconviction appeal with this court,
claiming he was entitled to a new trial because the district court erred in its
evidentiary rulings and abused its discretion in denying postconviction relief
on claims of recantation, newly discovered medical evidence, and ineffective
assistance of counsel. This court
affirmed the district court’s decision. Lind v. State,2002 WL 1544820 (Minn. App. July 16, 2002), review denied (
D E C I S I O N
Relying on Apprendi v.
“Other 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, and proved beyond a
reasonable doubt.” Apprendi v.
First, Lind is barred from raising
the Apprendi issue today because he
never raised it in his first petition for postconviction relief in January
2001, seven months after Apprendi was
decided. See Wayne v. State, 601 N.W.2d 440, 441 (
the supreme court has determined that Blakely
is not subject to retroactive application after a case is final. State
Lind’s conviction was final 90 days after the supreme court denied his petition
for review on September 25, 2002. See O’Meara v. State, 679 N.W.2d 334,
339 (Minn. 2004) (stating that a case is final when judgment of conviction has
been rendered, the availability of appeal exhausted, and the time for a
petition for certiorari has elapsed or the petition has been finally denied);
next argues that even if Apprendi and
Blakely do not apply, the double
departure is based on impermissible grounds.
Lind’s claim that the double departure was based on impermissible
grounds is barred because Lind did not raise this issue in his previous direct
appeal. State v. Knaffla, 309
Furthermore, the district court also based the departure on invasion of the victim’s zone of privacy and the psychological impact the victim suffered, which have been held as permissible grounds for departure. See, e.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (noting numerous cases holding invasion of victim’s zone of privacy to be an aggravating factor in considering departure); see also State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (stating psychological harm is an aggravating factor), review denied (Minn. Feb. 28, 1990). For these reasons, we affirm the denial of postconviction relief.