This opinion will be unpublished and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
Kevin Lee Jennings, petitioner,
McLeod County District Court
File No. K4-03-1028
John M. Stuart,
State Public Defender, Richard Schmitz, Assistant Public Defender,
Attorney General, 1800
Michael K. Junge,
McLeod County Attorney,
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a denial of a postconviction motion for correction of his 2003 sentence for kidnapping, appellant argues that Blakely did not announce a new rule of constitutional criminal procedure because it was dictated by the Supreme Court’s decision in Apprendi, and therefore the Blakely rule dates back to Apprendi, which was decided before the charges were brought against him. We affirm.
In August 2003, appellant Kevin Jennings was charged with kidnapping – safe release, false imprisonment, third-degree assault, and fleeing a peace officer, after he allegedly kidnapped his wife and her two children. Appellant subsequently waived his right to a jury trial and entered an Alford plea to kidnapping – safe release. The plea agreement called for a 63-month sentence, which was a 12-month upward durational departure from the presumptive guidelines sentence of 51 months. The departure was justified on the grounds that (1) the kidnapping took place over an extended period of time; (2) appellant fled the police; (3) appellant placed himself and the victims in danger; and (4) children were present.
In February 2006, appellant filed a pro se motion to correct his sentence on the basis that the sentencing departure was unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district court denied the motion, holding that Blakely does not apply because appellant’s case was final at the time Blakely was decided. This appeal followed.
D E C I S I O N
Appellant argues that his Sixth Amendment rights under Blakely were violated when his sentence
was increased based on facts not found by a jury beyond a reasonable doubt and
that Blakely applies retroactively to
his conviction. The determination of 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 (
In Blakely, the Supreme Court
held that the greatest sentence that a judge may 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, 542
“Unless they 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
that Blakely did not announce a new rule of constitutional criminal
procedure because it was dictated by the Supreme Court’s decision in Apprendi,
and therefore the Blakely rule dates back to Apprendi, which was
decided before the charges were brought against him. This argument was rejected by the Minnesota
Supreme Court in State v. Houston,
702 N.W.2d 268, 273 (
 Appellant concedes that
his argument was rejected in