This opinion will be unpublished and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
State of Minnesota,
Filed May 9, 2006
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.
D E C I S I O N
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. Id.at 301, 124 S.
Ct. at 2536.
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 Blakely. See 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.
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.
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
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
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.
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,
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
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,
We conclude, based on Houston,
that Blakely does not apply
retroactively to appellant’s 2001 sentence.