This opinion will be unpublished and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
State of Minnesota,
Matthew Thomas Gullickson,
Filed September 11, 2007
Itasca County District Court
File No. K4-01-1850
Stuart, State Public Defender, Philip Marron, Assistant Public Defender,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying his motion for resentencing following probation revocation, appellant Matthew Thomas Gullickson argues that he is entitled to reversal of his sentence, which violates State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002). Appellant argues that, although the time to directly appeal his sentence had expired when Misquadace was released, he is entitled to the application of that decision because his opportunity to challenge the sentencing departure in a probation-revocation proceeding had not expired. We affirm.
In January 2002, appellant pleaded guilty to one count of first-degree arson in violation of Minn. Stat. § 609.561, subd. 3 (2000). Pursuant to the plea agreement, the district court sentenced appellant to a stayed term of 96 months, which was an upward durational departure and a downward dispositional departure from the presumptive guidelines sentence of an executed 48-month term.
18, 2006, appellant pleaded guilty to a felony offense of fleeing a peace
officer and admitted that the offense was a violation of the probation
conditions for appellant’s arson offense.
Appellant moved to modify the sentence for the arson offense from 96
months to the presumptive term of 48 months.
The district court revoked appellant’s probation and denied his motion
for resentencing. The district court found
that the only basis for the sentencing departure was the plea agreement but
that appellant was not entitled to resentencing under State v. Misquadace, 644 N.W.2d 65 (
This appeal followed.
D E C I S I O N
court decision applies retroactively is a legal question, which we review de
novo. O’Meara v. State, 679 N.W.2d 334, 338 (
agreement cannot by itself form the basis for a sentencing departure. State
v. Misquadace, 644 N.W.2d 65, 71 (
supreme court has held that “a case is pending until such time as the
availability of direct appeal has been exhausted, the time for a petition for
certiorari has elapsed or a petition for certiorari with the United States
Supreme Court has been filed and finally denied.” O’Meara,
679 N.W.2d at 336. Citing State v. Fields, 416 N.W.2d 734, 736 (
But the supreme court has specifically rejected the argument that a challenge under Fields should be considered a direct appeal for purposes of retroactive application of a new rule of law. State v. Losh, 721 N.W.2d 886, 894-95 (Minn. 2006). The supreme court has stated:
Neither Fields nor subsequent decisions by this court interpreting Fields have described such a procedure
as a “direct appeal” or “direct review.”
Losh argues that the policy arguments mentioned in Fields support her position that an appeal of a sentence pursuant
to Fields should be considered direct review for retroactivity
purposes. In Fields this court stated that defendants initially placed on
probation often have less incentive to appeal the durational departure.
Losh, 721 N.W.2d at 894-95 (footnotes omitted).
Like Losh, appellant failed to appeal his sentence within 90 days after it was imposed, and, therefore, the appeal rights that he retained after the 90-day period were not direct-appeal rights. Appellant argues that, because Losh and O’Meara involved the application of Washington v. Blakely, 542 U.S. 296, 124 S. Ct. 2531 (2004), which is a federal decision, the supreme court was required to apply federal retroactivity principles and that, because Misquadace involved interpretation of state law, federal retroactivity principles need not apply. See O’Meara, 679 N.W.2d at 338-39 (noting that, because case involved issue of federal procedure, court must apply federal retroactivity principles).
Appellant argues that a stay of execution should be treated like a stay of imposition for retroactivity purposes. See State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005) (holding that, when a district court stays imposition of sentence, thereby precluding a challenge to the sentence duration on direct review, and later vacates the stay and imposes a sentence that is an upward durational departure, Blakely applies retroactively to a defendant’s pending appeal of the sentence imposed because the sentence was not final when Blakely was released). We disagree. A stay of imposition differs from a stay of execution in that “the point at which the district court vacates the stay [of imposition] and imposes the sentence is the first opportunity to appeal the duration of the sentence.” Beaty, 696 N.W.2d at 410. When appellant was sentenced in 2002, he knew that an upward durational departure had been imposed based on his plea agreement, and he had an opportunity at that time to appeal the sentencing departure.
also argues that this court should follow State
v. Lewis, 656 N.W.2d 535, 537-38 (
Because Misquadace was not decided until 95 days after appellant’s sentence was imposed and appellant had not appealed when Misquadace was decided, his case was not pending when Misquadace was decided. Accordingly, he is not entitled to have that case applied to his sentence, and the district court properly denied appellant’s motion for resentencing.