This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 10, 2007
Mark D. Nyvold,
Lori Swanson, Attorney
Michael O. Freeman,
U N P U B L I S H E D O P I N I O N
challenges the denial of his petition for postconviction relief, arguing that Blakely
v. Washington, 542
In May 2002,appellant Joseph Davis was charged with two counts of first-degree criminal-sexual conduct. The complaint was later amended to add a charge of first-degree assault. During trial in March-April 2003, appellant accepted the state’s offer to plead guilty to assault and receive a 144-month sentence, an upward departure from the presumptive 122 months, based on appellant’s particular cruelty to the victim.
July 2003, appellant filed an appeal from his conviction in this court. He filed a notice of voluntary dismissal of
that appeal in September 2003, and this court dismissed the appeal. In January 2004, appellant, acting pro se,
filed a petition for post-conviction relief. The district court denied his
petition, and he filed a notice of appeal from the denial on June 14,
2004. On June 24, 2004, the Supreme
Court released Blakely v. Washington,
retroactive application of a new case is a legal question, which an appellate
court reviews de novo. State v. Houston, 702 N.W. 2d 268, 270 (
Appellant now argues that the district court erroneously “rejected [his] contention that this Court intended [him] to be able to have Blakely apply to his case.” But this court actually said:
We recognize the timing of the release of Blakely made it impossible for appellant to raise a Blakely issue in the district court. . . . We decline to address the Blakely issue. . . . Our decision is without prejudice to appellant’s ability to later petition the district court for relief under Blakely. We make no advisory comments on that outcome.
then argues that this court “should independently find that O’Meara [v. State, 679 N.W.2d 334 (
Finally, appellant argues that he is entitled to apply Blakely because he sought resentencing before the effective date of the 2005 amendments to Minn. Stat. § 244.10 (2004) and, in cases remanded for further proceedings under Blakely, courts have authority to convene sentencing juries only if the defendant sought resentencing on or after the effective date. But this court did not remand appellant’s case for further proceedings under Blakely; it explicitly declined to address Blakely or to comment on its applicability to appellant’s case. Davis,2005 WL 646499, at *6.
The district court properly concluded that Blakely does not apply to appellant’s case.