This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed March 20, 2007
Itasca County District Court
File No. K0-02-1094
Lori Swanson, Attorney General,
John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)
John M. Stuart, State Public
Defender, G. Tony Atwal, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
This appeal from an order revoking
probation and executing a sentence for first-degree assault has been remanded
by the supreme court for reconsideration of appellant Clayton Bellanger’s claim
that he was denied his right to a jury determination of sentencing issues. Appellant argues that the Supreme Court
holding on the Sixth Amendment right to a jury determination of sentencing
factors announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004), should apply to his sentence.
Based on the record and on the supreme court’s decision in State v. Losh, 721 N.W.2d 886 (
Clayton Bellanger pleaded guilty to first-degree assault on September 20,
2002. State v. Bellanger, 2005 WL 1514438, at *1 (Minn. App. June 28,
2005), review granted (
Bellanger had several
probation-violation reports in 2003 and 2004, one of which resulted in him
serving six months in jail.
In his initial brief, Bellanger
argued that the district court failed to make the
Bellanger also argued that the
statute restricting his right to appeal the upward departure was
Bellanger also raised a Blakely challenge to the upward durational departure. This court held that Blakely did not apply, stating:
Bellanger was sentenced on October 28, 2002. Ninety days from October 28, 2002, would require an appeal of the sentence to have been brought in January of 2003. He did not appeal the sentence within the 90-day time frame required for sentencing appeals; therefore, his case was final. Blakely was released on June 24, 2004. Bellanger did not have a direct appeal pending when that decision was announced, and, thus, Blakely does not apply. Notably, this court recently held that a probation-revocation appeal does not extend the date of finality for purposes of applying the Blakely rule to sentence departures. State v. Losh, 694 N.W.2d 98, 101 n.2 (Minn. App. 2005).
supreme court granted review and stayed the appeal pending its own decision in Losh.
After that opinion was filed, on September 28, 2006, the supreme court
vacated the sections of this court’s opinion dealing with the challenges to
Minn. Stat. § 244.11, subd. 3, and the Blakely
challenge. The supreme court in Losh affirmed this court’s determination
that a probation-revocation appeal is not “direct review” of a sentence for
purposes of retroactivity analysis. State v. Losh, 721 N.W.2d 886, 895 (
The supreme court has vacated the portions of
this court’s opinion dealing with the statutory and Blakely challenges to Bellanger’s sentence. The supreme court has found that Minn. Stat.
§ 244.11, subd. 3 (2002), violates the separation-of-powers doctrine, and that
issue is no longer before us. The remaining issue is whether Blakely applies to Bellanger’s
sentence. Whether a holding applies
retroactively is a legal question, which this court reviews de novo.
general rule is that Blakely, as a
new rule of constitutional criminal procedure, is retroactively applicable to
cases pending on direct review at the time Blakely
was released, but not to cases then on collateral review or later challenged on
collateral review. State v.
In Blakely, the Supreme
Court held that the greatest 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.”
Blakely v. Washington, 542
In Beaty, this court noted that a defendant who receives a stay of
imposition of sentence does not know what the duration of his sentence is, or
whether an upward departure will be imposed, until his probation is
Bellanger argues that he was precluded from challenging his sentence duration because his plea agreement barred him from doing so. Therefore, he argues, the reasoning of Beaty should apply.
There is a difference, however, between having no sentence duration to challenge and having a reason not to do so, even a reason as strong as an agreement not to do so. Bellanger’s appeal waiver constituted only a reason not to challenge the sentence duration on direct review. And Bellanger received a significant benefit for the waiver, in the form of a dispositional departure. Other defendants might have different reasons for not appealing their sentence – particularly the reason noted in Fields that, intending to succeed on probation and thereby avoid serving the prison term altogether, they would have no incentive to challenge the sentence duration. Some defendants might choose simply to spare themselves the expense of a direct appeal in which they could challenge their sentence duration.
Bellanger’s appeal waiver presents a strong reason why he would not have challenged his sentence duration on direct review. But if this court were to recognize the appeal waiver as justifiable grounds for applying Blakely retroactively other grounds would inevitably be advanced. Some of them, such as the situation in which a defendant’s attorney is asked to file a direct appeal but fails to do so, could prove as compelling as the appeal waiver in this case. But in that case the Blakely retroactivity analysis would evolve from a bright-line rule into a fairness argument dependent on the facts of each individual case.
The Supreme Court adopted the Teague standard, which draws the line
for retroactivity purposes at the point when the right to direct review expires
or is exhausted, precisely to avoid inconsistent results. See
Teague v. Lane, 489
Bellanger’s argument would be stronger if his
appeal waiver made it impossible for him to challenge his sentence on direct
appeal. But such waivers may be
challenged, even on direct appeal. See Spann v. State, 704 N.W.2d 486, 495 (
We decline to open the door to a wide variety of fact-specific exceptions to the Teague bright-line rule distinguishing between direct review and collateral review. Bellanger has not shown that the very limited exception this court recognized in Beaty should extend to his very different situation
 This appeal is being considered and decided despite the statutory provision that would bar it. Therefore, we need not address the challenge to Minn. Stat. § 244.11, subd. 3.
 The supreme court has held
that a defendant could not waive his right to appeal as part of a stipulation
dismissing the appeal. Spann v. State, 704 N.W.2d 486, 495 (