IN SUPREME COURT
Court of Appeals
Anderson, G. Barry, J.
State of Minnesota,
August 18, 2005
of Appellate Courts
Gerald E. Houston,
L L A B U S
Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004) stated a new rule of constitutional criminal procedure that applies
to all cases pending on direct review at the time of the decision. But Blakely
is not a “watershed” rule and thus will not be given full retroactive effect.
considered, and decided by the court en banc.
O P I N I O N
ANDERSON, G. Barry,
October 10, 2001, appellant Gerald E. Houston was convicted of one count of
attempted first-degree controlled substance crime, Minn. Stat. §§ 152.021,
subd. 2a (2000), 609.17 (2004), and one count of fifth-degree controlled
substance crime, Minn. Stat. § 152.025, subd. 2(1) (2004), arising from his
possession, in his motor vehicle, of several items necessary to manufacture
methamphetamine. The district court
to 240 months in prison under the “career offender statute,” Minn. Stat. § 609.1095,
subd. 4 (2004). This was a substantial
upward durational departure from the presumptive guidelines sentence that the
court determined was 80½ months (Houston’s
offense carried a severity level of VIII and Houston had a criminal history score of 7).
Sent. Guidelines IV, II.G. The district
court based the upward departure on a finding that (1) Houston had been convicted of at least five
previous felonies, and (2) the current crime was committed as “part of a
pattern of criminal behavior.” Houston appealed, the
court of appeals affirmed, and this court denied review. State
v. Houston, 2002 WL 31892561 (Minn. App. Dec. 31, 2002), rev. denied (Minn. Mar. 18, 2003).
Houston petitioned for postconviction relief challenging the
length of his sentence under Neal v.
State, 658 N.W.2d 536 (Minn.
2003). The postconviction court upheld Houston’s sentence against
that challenge. While his appeal of the
postconviction court’s decision was pending, the U.S. Supreme Court decided Blakley v. Washington,542 U.S.
296, 124 S. Ct. 2531 (2004). The parties briefed and argued to the court of
appeals the applicability of Blakely to
sentence. The court of appeals held that
not benefit from Blakely because Blakely announced a new rule of
constitutional criminal procedure, and under our retroactivity jurisprudence, a
new rule does not apply once all direct appeals have been exhausted. State
v. Houston, 689 N.W.2d 556, 559-560 (Minn. App. 2004). The court of appeals also concluded that because
Blakely was not a “watershed” rule, Blakely is not subject to retroactive
application on collateral review. Id.
at 560. The parties do not dispute that Blakely is applicable to upward
durational departures under the Minnesota Sentencing Guidelines, and we granted
review on the limited issue of the retroactivity of Blakely.
Whether Blakely applies retroactively to
convictions final at the time Blakely was
decided is a purely legal issue which this court reviews de novo. See O’Meara
v. State, 679 N.W.2d 334, 338 (Minn.
2004). Our jurisprudence on
retroactivity, most recently set out in O’Meara,
recognizes that the retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), control when we are faced with
a federal constitutional rule of criminal procedure. See O’Meara,
679 N.W.2d at 339. Under Teague, we first ask whether the rule of
federal constitutional criminal procedure is new, or whether it is merely a
predictable extension of a pre-existing doctrine. Id. at
301. If the rule is considered “new,” it
must be applied to all cases pending on direct review – cases where the
availability of direct appeal has not been exhausted and the time for a
petition for certiorari has not elapsed.
O’Meara, 679 N.W.2d at
339-40. A defendant whose conviction is
final but who attacks the conviction or sentence on collateral review (e.g., a
petition for post-conviction relief) does not receive the benefit of a “new”
rule of constitutional criminal procedure.
Teague, however, lays out two exceptions
to this rule. When either of these
exceptions applies, the new rule of constitutional criminal procedure must be
given full retroactive effect, such that it is available to all defendants
similarly situated, even though the defendant is seeking collateral review. Teague,
at 311. The first exception, not relevant
here, applies whenever the new rule places certain specific conduct “beyond the
power of the criminal law-making authority to proscribe.” See id. The second exception, known as the “watershed
rule” exception, applies when the new rule “requires the observance of those
procedures that * * * are implicit in the concept of ordered liberty”
or “alter our understanding of the bedrock
procedural elements that must be found to vitiate the fairness of any
particular conviction.” Id.
(emphasis in original, internal quotation marks omitted, omissions in original).
Houston argues that Blakely did not announce a new rule of constitutional criminal
procedure because it was dictated by the Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and
therefore the Blakely rule dates back
to Apprendi, which was decided before
his direct appeal was exhausted. In the
argues that, if Blakely did announce a
“new” rule, then that rule is a “watershed” rule under the second Teague exception, and Blakely must be given full retroactive
effect. We disagree with both arguments.
Supreme Court held in Teague that a
rule of constitutional criminal procedure is new if it is not “dictated” by
precedent. 489 U.S. at 301. This principle serves to “validat[e]
reasonable, good-faith interpretations of existing precedents made by state
courts even though they are later shown to be contrary to later
decisions.” Butler v. McKellar, 494 U.S.
407, 414 (1990). This “serves to ensure
that gradual developments in the law over which reasonable jurists may disagree
are not later used to upset the finality of state convictions valid when
entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). The principle of finality is key, as the
doctrine is aimed at blocking the formation of a “mechanism for the continuing
reexamination of final judgments based upon later emerging legal
doctrine.” Id. Thus,
it is not enough that a new constitutional rule of procedure is logically an
extension of some precedent, as that is true of virtually all recently announced
rules, but rather the test is whether “reasonable jurists hearing petitioner’s
claim at the time his conviction became final ‘would have felt compelled by existing precedent’ to rule
in his favor.” Graham v. Collins, 506 U.S. 461, 467 (1993) (emphasis
In the context of
the present case, Blakely altered the
meaning of “statutory maximum” for purposes of Apprendi. Apprendi held that any fact, other than
the fact of a prior conviction, that increases the penalty for an offense
beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. 530 U.S. at 490. Prior to Blakely,
“statutory maximum” was generally thought to mean the heaviest penalty a court
could impose on a defendant—the ceiling of the relevant statutory sentencing
range. See Harris v. United States, 536 U.S. 545, 562-63 (2002) (concluding
that a mandatory minimum sentencing statute did not raise Apprendi concerns because the statute did not increase the penalty
for the offense above the prescribed statutory maximum). Blakely altered
this understanding, holding that the maximum punishment for Apprendi purposes is the maximum
sentence the judge may impose based solely upon those facts either reflected in
the jury verdict or admitted by the defendant, which meant the presumptive
sentence under the Washington state sentencing guidelines. Blakely,
542 U.S. at , 124 S. Ct.
Supreme Court did not speak directly on the retroactivity issue, United States v. Booker supports the “new
rule” analysis. See 543 U.S.
___, 125 S. Ct. 738 (2005). In Booker,applying Blakely to the federal sentencing guidelines, the Supreme Court
noted, “we must apply today’s holdings – both the Sixth Amendment holding and
our remedial interpretation of the Sentencing Act – to all cases on direct
review.” Id.at ___, 125 S. Ct at 769. Booker
then applied the rule from Griffith v.
Kentucky that a new rule in a criminal prosecution is applied
“retroactively to all cases * * * pending upon direct review or not
yet final.” Id. (citing Griffith v. Kentucky,479 U.S.
314, 328 (1987)). Although the Supreme
Court did not finally tie it up neatly, this language suggests that Booker was a new rule for Teague purposes. Booker merely
applied the rule of Blakely in a new
context— federal sentencing—and Booker qualified
as a new rule. Blakely altered our prior understanding of “statutory maximum” in a
much more fundamental way, applying the rule of Apprendi in the context of state sentencing guidelines, and is therefore
also a new rule.
But we need not
divine the intentions of the Supreme Court. That reasonable jurists disagreed
about the result reached in Blakely
is clear: the decision was issued by a closely divided five to four court. Further, as Justice O’Connor noted in her Blakely dissent, prior to Blakely,only one court had previously reversed an upward departure from a
guidelines sentence. 542 U.S. at ___ n.1, 124 S. Ct. at 2547 n.1 (O’Connor,
dissenting); see State v. Gould, 23
P.3d 801, 814 (Kan.
2001). We have previously held that the
maximum sentence authorized by the jury’s verdict was the maximum penalty
allowable by the statute defining the offense, a position now invalidated by Blakely.
See State v. Grossman, 636 N.W.2d 545,549 (Minn. 2001). It is no overstatement to observe that few
saw Blakely on the horizon.
jurists, including this court, disagreed over the import of Apprendi for sentencing guidelines,
extending the benefit of the Blakely
rule beyond those cases pending on direct review at the time of the
announcement of the rule would undermine the retroactivity policy of validating
good-faith state court decisions and preserving finality. Thus, Blakely
is a new rule of constitutional criminal procedure unavailable for
While Blakely is a new rule of federal
constitutional criminal procedure, it is not a “watershed” new rule requiring
full retroactivity. Under Teague, a new rule must be retroactively
applied as a “watershed” rule if it “requires the observance of those
procedures that * * * are implicit in the concept of ordered liberty.” 489 U.S. at 311 (internal quotation
marks omitted). This category is
reserved for watershed rules of criminal procedure that “alter our
understanding of the bedrock procedural
elements that must be found to
vitiate the fairness of a particular conviction.” Id.(emphasis in original). To be a watershed rule, the new rule must be
one without which “the likelihood of an accurate conviction is seriously
diminished.” Id.at 313.
A rule is not a watershed rule simply because it improves the accuracy
of proceedings, but rather the rule must also be essential to fundamental
fairness of a proceeding. Sawyer, 497 U.S. at 242. Rules
qualifying under the second Teague exception
as “watershed” rules are extremely rare. Tyler
v. Cain, 533 U.S.
656, 667 n.6 (2001); see also Meemken v.
State, 662 N.W.2d 146, 149 (Minn. App. 2003).
While the right to
jury trial implicated by Blakely is fundamental
to our system of criminal procedure, see
Summerlin, 542 U.S. at
___, 124 S. Ct.
at 2525-26, Blakely does not impact
the accuracy of an underlying determination of guilt or innocence. Instead, it modifies the manner in which
certain factors – those factors justifying upward durational departures in
states which use determinate sentencing guidelines – must be treated. In Summerlin,
deciding that Ring did not fall under
the Teague watershed rule exception,
the United States Supreme Court reasoned that there was no evidence that “judicial
fact-finding so ‘seriously diminishe[s]’
accuracy that there is an ‘impermissibly large risk’ of punishing conduct the
law does not reach” is created. Summerlin, 542 U.S. 348, 124 S. Ct.
at 2525 (emphasis in original, citations omitted). In this regard, the remedy applied when we
find a Blakely violation gives a
further clue as to the nature of the rule.
A Blakely violation requires
remand for resentencing, and not a new trial or vacation of a conviction. We are hard-pressed to see how a rule that,
when violated, merely requires re-sentencing can be said to be one “without
which the likelihood of an accurate conviction is seriously diminished.” Teague,
Houston further argues that the Apprendi line of cases requires that all
sentencing factors, which increase the penalty for an offense beyond the
ceiling of punishment available based solely on the jury’s verdict or guilty
plea, be treated as elements of the underlying offense. See Apprendi,530 U.S.
at 494 n.19. Houston claims that
because elements of an offense must be placed in the charging instrument,
submitted to a jury, and found beyond a reasonable doubt, treating sentencing
factors as elements implicates “bedrock procedural elements” regarding
accuracy. See Teague,489 U.S. at 311. But the Supreme Court has not explicitly
addressed this issue, let alone as appellant suggests, and we decline to
address the issue here.
We therefore hold that,
while Blakely is a new rule, it is
not a watershed new rule of constitutional criminal procedure. The decision of the court of appeals is