This opinion will be unpublished and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 APPEALS
Edward Santiago III,
State of Minnesota,
Filed October 31, 2006
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
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
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.
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.
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.
On remand, the
matter was rescheduled for trial. Before
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
you understand that the deal here is 240 months, correct?
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,
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
D E C I S I O N
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.
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
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
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,
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.
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
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.
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
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.