This opinion will be unpublished and

may not be cited except as provided by

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






Kristopher Jon Zuhlsdorf, petitioner,





State of Minnesota,



Filed May 9, 2006


Toussaint, Chief Judge


Redwood County District Court

File No. K1-01-214


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and


Michelle A. Dietrich, Redwood County Attorney, 250 South Jefferson, Box 130, Redwood County Courthouse, Redwood Falls, MN  56283 (for respondent)


John E. Mack, Mack & Daby, P.A., 26 Main Street, Post Office Box 302, New London, MN  56273 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Randall, 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

            Appealing from an order denying his motion challenging his 2001 sentence for third-degree criminal sexual conduct, Kristopher Jon Zuhlsdorf argues that the upward durational departure based on findings made by the district court violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because Blakely does not apply retroactively to appellant’s sentence, we affirm.


            Appellant argues that the durational departure imposed on him in September 2001 based on the judge’s findings violated his right to a jury trial under the Supreme Court’s later holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Whether a decision applies retroactively is a legal question, which this court reviews de novo.  State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

            In Blakely, the Supreme Court held that the maximum sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  542 U.S. at 303 , 124 S. Ct. at 2537 (emphasis in original).  The defendant, it held, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. 301, 124 S. Ct. at 2536.

            “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”  Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  A case becomes final when the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

            Appellant filed a direct appeal in which he challenged the upward departure, imposed under the pattern-sex-offender statute, based on the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  This court affirmed the conviction and the sentence, concluding that appellant’s sentence did not violate Apprendi because it was shorter than the 180-month statutory maximum sentence for third-degree criminal sexual conduct.  State v. Zuhlsdorf, 2002 WL 31012980, at *2 (Minn. App. Aug. 30, 2002).  Appellant did not petition for further review in the supreme court.  His conviction, therefore, became final in September 2002, when his time to petition for further review expired.

            The supreme court has held that Blakely is notretroactively applicable to convictions that became final between the release of Apprendi and the release of BlakelySee State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (holding Blakely announced new rule, not merely foreseeable application of Apprendi).  In Houston, the court also held that Blakely was not a “watershed” rule and, therefore, it is applied only prospectively and to cases that were on direct review when it was released.  Id.; see also Petschl, 692 N.W.2d at 472 (“Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that it is not a watershed rule subject to retroactive application on collateral review.”).

            Appellant argues that Houston held only that Blakely is not fully retroactive to convictions that became final before Blakely was released.  The term “full” retroactivity, as it is used in Houston, however, is used only in relation to whether Blakely is a “watershed” rule that should be given “full” retroactive application. 702 N.W.2d at 270.  The use of the term in that context recognizes that even applying Blakely to cases that were pending on direct review when Blakely was released is “partial” retroactive application, because Blakely was released after the sentences in those cases were imposed.  See Teague, 489 U.S. at 304, 109 S. Ct. at 1072 (recognizing inequity of not applying new rule “retroactively” to defendants whose convictions are not yet final).  Thus, the term “full” retroactivity does not imply that some defendants whose convictions were final before Blakely should get the retroactive application of that decision.

Appellant also argues that Houston does not bar the retroactive application of Blakely  in this case because (1)  he made an Apprendi challenge to the sentence on direct appeal, and (2) he raised the Blakely challenge in a motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9, rather than in a postconviction petition.

            The bar against retroactive application of “new” rules of constitutional criminal procedure does not rest on the concept of waiver, distinguishing those defendants who have preserved an issue from those who have not.  Rather, it rests on “[t]he principle of finality,” which requires that final criminal judgments should not be continually reexamined simply because the law evolves.  Houston, 702 N.W.2d at 271.  It is not relevant, for purposes of finality, whether or not a defendant has raised an argument that is later vindicated.  Appellant argued Apprendi in his direct appeal, and therefore foresaw the later holding of Blakely, but, for purposes of finality, he is situated similarly to all other defendants whose convictions became final between Apprendi and Blakely, including those who did not foresee Blakely.

            Appellant suggests not only that it would be fair to give him the benefit of Blakely because he raised the Apprendi issue, but also that it would be an injustice not to because he was denied relief on the Apprendi claim only because of this court’s “error.”  But the supreme court itself acknowledged in Houston that it had not foreseen the Blakely holding, nor had most appellate courts that had faced the issue.  702 N.W.2d at 273.  Therefore, this court’s holding in appellant’s direct appeal did not represent “error.”  Nor does the bright-line retroactivity rule followed in Houston recognize as a factor the “error” of courts in failing to anticipate a new rule.

            The supreme court in another context has fashioned a rule of partial retroactivity taking into account whether defendants had raised the argument resulting in the “new” rule.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 837-38 (Minn. 1991).  But in Friedman, the court was dictating the effect of its own rule.  Houston acknowledges that because Blakely is a new rule of federal law, the “retroactivity principles” of federal law must govern.  702 N.W.2d at 270.  The Teague standard for retroactive application does not contain an exception for defendants whose direct appeals were not pending when the “new” rule was announced but who had raised the same claim.  See Teague, 489 U. S. at 310, 109 S. Ct. at 1075 (holding that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced”).

               Appellant also argues that he should receive the retroactive application of Blakely because he has raised the issue in a motion under rule 27.03, subdivision 9, rather than in a postconviction petition.  This argument is not supported by the language of Houston and would attach undue significance to the merely procedural distinction between a motion under rule 27.03, subdivision 9, and a postconviction petition.

            Houston involved a defendant who petitioned for postconviction relief in an attempt to benefit from Blakely.  702 N.W.2d at 270.  But it does not limit its holding of non-retroactivity to postconviction proceedings.  Rather, in using the term “collateral review,” the Houston court mentions postconviction petitions as only an example of “collateral review.”  Id. (“A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for postconviction relief) does not receive the benefit of a ‘new’ rule . . .”).  Although a postconviction proceeding is the most typical form of collateral review in Minnesota, it is not the only form.  See Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (holding that postconviction petition is collateral attack on conviction); cf. State ex rel. Adams v. Jackson, 254 Minn. 164, 167, 94 N.W.2d 285, 287 (1959) (noting that habeas corpus proceeding is collateral attack on criminal judgment). 

This court has construed motions filed under rule 27.03, subdivision 9, as postconviction proceedings for some purposes.  See State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995) (noting that order denying motion for sentence modification could be construed as postconviction order for purposes of appellate jurisdiction), review denied (Minn. Mar. 14, 1995); State v. Stutelberg, 435 N.W.2d 632, 634-35 (Minn. App. 1989) (considering term “postconviction proceeding” to include motion under rule 27.03, subdivision 9, for purposes of discussion of waiver).

            This court has also held that Blakely does not apply retroactively to cases being reviewed in a probation-revocation appeal, although probation-revocation appeals are not a typical form of  “collateral review.”  See State v. Losh, 694 N.W.2d 98, 101 (Minn. App. 2005), review granted (Minn. June 28, 2005).  And Losh essentially rejected the argument that appellant makes here, stating that “the fact that modification of a sentence is possible [under rule 27.03, subdivison 9] does not mean a judgment is not final for the purpose of precluding the retroactive application of a new rule.”  Id. at 101, n.2.

            We conclude, based on Houston, that Blakely does not apply retroactively to appellant’s 2001 sentence.