This opinion will be unpublished and

may not be cited except as provided by

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






Edward Santiago III, petitioner,





State of Minnesota,



Filed October 31, 2006


Dietzen, Judge


Hennepin County District Court

File No. 97061930


Edward Santiago III, OID #156912, MCF – Rush City, 7600 525th Street, Rush City, MN 55069 (appellant pro se)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Ross, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N




Appellant challenges the district court order denying his petition for postconviction relief, arguing that his sentence for his convictions of conspiracy to commit second-degree murder, attempted second-degree murder, and second-degree assault was an upward departure imposed in violation of Blakely, that his sentence was contrary to the sentencing guidelines, and that he was improperly denied an evidentiary hearing.  Because we conclude that appellant’s sentence was final before the effective date of Blakely and that the district court properly applied the law and did not abuse its discretion, we affirm.


            In July 1997, appellant Edward Santiago III and his cousin, Thomas Rodriguez, went to an outdoor swimming pool at an apartment complex in Richfield.  At the pool, Rodriguez got into a verbal altercation with A.P., M.H., and others.  The altercation escalated beyond name calling and turned physical.  Santiago was heard encouraging Rodriguez to “take care of your business” and was seen passing a gun to Rodriguez.  Rodriguez then shot and killed A.P. and shot and injured M.H.  During the shooting, Rodriguez accidentally shot another cousin, S.A., in both feet.[1]

            Santiago and Rodriguez were charged with second-degree murder and two counts of second-degree attempted murder.  The cases were consolidated for trial.  Following trial, both defendants were found guilty as charged.  On appeal, Santiago challenged the joinder of his trial with that of Rodriguez.  The Minnesota Supreme Court reversed and remanded, holding that the consolidated trial was prejudicial and that severance was necessary.  Santiago v. State, 644 N.W.2d 425 (Minn. 2002).

On remand, the matter was rescheduled for trial.  Before trial, Santiago and the state entered into a plea agreement.  As a result, Santiago was sentenced to 240 months’ incarceration on count one, conspiracy to commit second-degree murder, which included an upward departure of 25 1/2 months for the “greater than normal danger to human life because so many victims and potential victims were at the scene.”  Santiago was also sentenced to 214 1/2 months on count two, attempted second-degree murder for the shooting of M.H.  Finally, Santiago was sentenced to 25 1/2 months on count three, assault for the shooting of S.A., which was a downward departure from the presumptive sentence of 36 months.  The sentence for count one was to run concurrently with the other sentences, and the sentences for counts two and three were to run consecutively to each other.  Santiago acknowledged that he understood and agreed with the sentence of 240 months.  On the record, he answered the following questions:

Q:        And you understand that the deal here is 240 months, correct?


A:        Correct.


Q:        And there’s two ways that there’s going to be—you are going to get to the 240 months, and you agree with both of those ways, is that right?


A.        That’s correct.


Santiago did not file a direct appeal.  In December 2003, he petitioned for postconviction relief.  This court affirmed the district court’s denial of postconviction relief, but remanded for reconsideration of the sentence in light of Blakely.  Santiago v. State, No. A04-537 (Minn. App. Oct. 05, 2004).

            On remand, Santiago requested a sentencing hearing following the resolution of State v. Shattuck, 704 N.W.2d 131 (Minn. 2005).  The district court denied Santiago’s request for postconviction relief without a hearing.  This appeal follows.




Santiago contends that his sentence is unconstitutional under Blakely v. Washington. 542 U.S. 296, 124 S. Ct. 2531 (2004).  Issues of constitutional interpretation are issues of law that we review de novo.  State v. Shattuck, 704 N.W.2d 131, 135 (Minn. 2005).

“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 . . . .”  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  Blakely held that this rule also applies to sentences imposed under the sentencing guidelines.  542 U.S. at 300-01, 124 S. Ct. at 2535-36.  Factors supporting a departure from the presumptive sentence must therefore be determined by a jury or admitted by the defendant.  Id. at 303, 124 S. Ct. at 2537.  The Minnesota Supreme court has concluded that this rule applies to upward durational departures from the guidelines.  Shattuck, 704 N.W.2d at 141.  “[I]mposition of the presumptive sentence is mandatory absent additional findings.”  Id.

Blakely, however, does not apply retroactively.  State v. Houston, 702 N.W.2d 268 (Minn. 2005).  Rather, Blakely’s new rule of criminal procedure applies only prospectively to cases or appeals that were pending on direct review when Blakely was decided on June 24, 2004.  See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 2522 (2004) (holding that when a Supreme Court decision results in a “new rule,” that new rule “applies to all criminal cases still pending on direct review.”).  Here, Santiago’s conviction became final in August 2003, when the time for his direct appeal expired.  Because his sentence was final before the effective date of Blakely, it was not unconstitutional.


            Santiago contends that the district court abused its discretion by sentencing him to 240 months of incarceration.  A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity and cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The denial of a postconviction petition is reviewed for an abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).  We review the record to determine whether sufficient evidence exists to support the postconviction court’s findings, and we will reverse those findings only upon proof that the postconviction court abused its discretion.  Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).

            Santiago makes two arguments.  First, he argues that the upward departure on his sentence was contrary to the sentencing guidelines.  The district court shall impose the presumptive sentence provided in the guidelines unless the individual case involves “identifiable, substantial, and compelling circumstances.”  Minn. Sent. Guidelines II.D.  When departing from the guidelines, the district court must include a statement of the reasons for the departure on the record at the time of sentencing.  Id.  Departures from the Minnesota Sentencing Guidelines are reviewed for abuse of discretion.  Shattuck, 704 N.W.2d at 140.

A guilty plea itself may not be the sole basis for an upward departure.  State v. Misquadace, 629 N.W.2d 487, 491 (Minn. App. 2001), aff’d, 644 N.W.2d 65 (Minn. 2002).  Even when the defendant agrees to an upward departure, “a sentencing court must support any departure from the presumptive sentence with substantial and compelling reasons.”  Id.; see also Minn. Sent. Guidelines cmt. II.D.04 (“When a plea agreement is made that involves a departure from the presumptive sentence, the court should cite the reasons that underlie the plea agreement . . . .”).

The sentencing guidelines include a non-exclusive list of reasons that support departure.  Minn. Sent. Guidelines II.D.2.  Additionally, the Minnesota Supreme Court has identified “a greater than normal danger to the safety of other people” as a factor justifying an upward departure.  State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981) (permitting an upward departure on a conviction arising out of a bank robbery because a number of people present at the bank were put in fear for their safety).

Minnesota’s pre-Blakely jurisprudence provided that a judge could increase the presumptive sentence if it found aggravating factors.  Here, the district court found that upward departure in Santiago’s sentence was appropriate based on “the greater than normal danger to human life because so many victims were at the scene.”  “Greater than normal danger to the safety of others” is an aggravating factor that justifies upward departure.  McClay, 310 N.W.2d at 685.  Here, the shooting took place at an outdoor pool where children and adults were present, and one of the onlookers was shot.  At sentencing, Santiago admitted that his conduct constituted a “greater than normal danger to human life.”  Because the upward departure in Santiago’s plea agreement and sentence is supported by the record, the court did not abuse its discretion by denying Santiago’s postconviction petition.

            Next, Santiago argues that his sentence did not comport with Minnesota Sent. Guidelines II.G.  Under Minn. Sent. Guidelines II.G, a sentence for attempt or conspiracy must equal the mandatory minimum or half the duration of the presumptive sentence for the completed offense.  Thus, Santiago argues that he should have been presumptively sentenced to 120 months for his convictions of conspiracy to commit intentional second-degree murder and attempt to commit intentional second-degree murder.  We disagree.

Based on Santiago’s criminal-history score of seven, the presumptive-sentence range for the completed offense of intentional second-degree murder under the 1997 sentencing guidelines is 419-433 months.  Minn. Sent. Guidelines IV.  When the presumptive sentence for the completed offense is reduced by half, as required by Minn. Sent. Guidelines II.G, the presumptive-sentence range for attempt or conspiracy to commit intentional second-degree murder is 209 1/2 months to 216 1/2 months.  Santiago’s 214 1/2‑month sentence for attempt and 214 1/2‑month sentence for conspiracy to commit second-degree murder (prior to the 25 1/2–month upward departure) are both within this range.  Therefore, the record amply supports the determination of the district court.


            Santiago contends that the district court abused its discretion by not conducting an evidentiary hearing.  The district court must conduct an evidentiary hearing upon a petition for postconviction relief “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief . . . .”  Minn. Stat. § 590.04, subd. 1 (2004).  “An evidentiary hearing is required whenever material facts are in dispute that have not been resolved in the proceedings resulting in conviction and that must be resolved in order to determine the issues raised on the merits.”  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  The petitioner must “allege[] such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief.”  Roby, 547 N.W.2d at 356.

Here, Santiago has not alleged facts that show he is entitled to relief on either of his arguments.  First, the facts related to his upward departure are not in dispute.  Hodgson, 540 N.W.2d at 517.  Santiago conceded that he and his cousin conspired to kill the victims and that their conduct created an unreasonable danger to others.  This danger to others is not merely hypothetical; Santiago’s conduct in fact resulted in the shooting of his cousin, an unintended victim.  Second, the facts related to his sentencing for attempt and conspiracy are not in dispute.  Id. Santiago has not identified facts that would lead to a different result.  Because Santiago has not alleged facts that would entitle him to relief,
the postconviction court did not abuse its discretion by denying Santiago’s petition for an evidentiary hearing.  Roby, 547 N.W.2d at 356.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] A detailed description of the events is set forth in Santiago v. State, 644 N.W.2d 425, 431-33 (Minn. 2002).