This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Anthony Daniel Johnson, petitioner,





State of Minnesota,




Filed July 10, 2007


Lansing, Judge


Hennepin County District Court

File No. 98019401




Anthony Daniel Johnson, MCF-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)


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


Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


            In 1998, Anthony Johnson pleaded guilty to two counts of second-degree felony murder, and the district court sentenced him to two consecutive 150-month sentences.  In April 2006, Johnson filed a third petition for postconviction relief and the district court denied his petition based on the Knaffla rule.  Because Blakely does not apply retroactively and the multiple-victim exception to Minn. Stat. § 609.035 (1996) does not violate the Double Jeopardy Clause, we affirm.


            Anthony Johnson acted as a lookout during a 1996 shooting in which two people were killed.  In 1998, he pleaded guilty to two counts of second-degree felony murder and received two consecutive 150-month sentences.

            In 2002, Johnson filed for postconviction relief and was assigned counsel to assist with his petition.  Johnson argued that his plea agreement was involuntary, that he received ineffective assistance of counsel, and that there was prosecutorial misconduct.  The district court denied the petition and this court affirmed on appeal.  Johnson v. State, No. A03-934 (Minn. App. Apr. 27, 2004), review denied (Minn. July 20, 2004).

            In 2006, Johnson filed a pro se “motion for correction of sentence” challenging the imposition of consecutive sentences.  Johnson argued that the multiple-victim exception to Minn. Stat. § 609.035 (1996) violates the Double Jeopardy Clause and that the state was required to prove that his crimes were part of separate behavioral incidents.  The district court denied Johnson’s petition because it was barred by the Knaffla rule and because it failed on the merits.  Johnson appeals the denial.


            As a preliminary matter, we must determine whether Johnson’s petition is procedurally barred by the Knaffla rule.  Under Knaffla, when a direct appeal has been taken, all claims that were raised or could have been raised are waived and will not be considered in a petition for postconviction relief unless an exception applies.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

            In this case, however, Johnson’s arguments both relate to the imposition of multiple sentences.  The protections against multiple sentencing are not waivable.  State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974); State v. Johnson, 653 N.W.2d 646, 650-51 (Minn. App. 2002).  The Knaffla-waiver rule therefore cannot be applied to multiple-sentencing issues.  Johnson, 653 N.W.2d at 651.

            Although the Knaffla rule does not bar Johnson’s petition, his claims have no merit.  First, the multiple-victim exception to Minn. Stat. § 609.035 (1996) does not violate the Double Jeopardy Clause.  See State v. Mitjans, 408 N.W.2d 824, 834-35 (Minn. 1987) (concluding that multiple-victim exception is consistent with federal double jeopardy standard provided in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932)).  Second, the rule in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), does not apply to Johnson’s conviction.  Johnson was convicted in 1998 and his time to appeal expired before Blakely was decided in 2004.  Minn. R. Crim. P. 28.02, subd. 4(3) (establishing ninety-day window to file appeal following final judgment).  The Blakely decision is not retroactive and only applies to cases on direct appeal at the time of the decision.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).