This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-1667

 

 

Tony D. Jackson,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 30, 2002

Afirmed
Foley, Judge*

 

Ramsey County District Court

File No. K0971881

 

Tony D. Jackson, #197562, MCF-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (appellant pro se)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges the district court’s denial of his postconviction petition claiming that he was improperly sentenced and citing numerous errors.  Because we find that appellant’s sentence is proper and that his other claimed errors were precluded on postconviction review, we affirm.

FACTS

            On May 18, 1998, a jury convicted appellant Tony DeJuan Jackson of first-degree criminal sexual conduct, first-degree burglary assault, and first-degree burglary with a dangerous weapon.[1]  The district court sentenced appellant on July 8, 1998, to 96 months for the first-degree burglary assault conviction, an upward durational departure from the 48-month presumptive sentence, based on aggravating factors.  The court also imposed a mandatory life sentence on appellant for his first-degree criminal sexual conduct conviction pursuant to Minn. Stat. § 609.346, subd. 2a(a)(1), (2)(i) (1996),[2] after finding that on April 22, 1998, he had been sentenced under Minn. Stat. § 609.1352 (1996) [3] as a patterned sex offender for a first-degree criminal sexual conduct offense committed in Washington County.  In sentencing appellant as a patterned sex offender, the court also found appellant to be a danger to public safety and in need of long-term sexual offender treatment.  The court cited the following aggravating factors: (1) appellant violated the victim’s zone of privacy by attacking her in her bedroom while she was asleep; (2) appellant penetrated the victim multiple times; (3) the victim suffered injury; and (4) appellant threatened to kill her.  This court affirmed appellant’s convictions and sentences, finding no abuse of discretion by the district court, and the supreme court denied review.

            Appellant filed a pro se postconviction petition arguing that his life sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because the factors that increased his sentence from the 30-year maximum sentence should have been submitted to the jury and proved beyond a reasonable doubt.  The public defender’s office then filed a motion and notice of motion for correction of sentence on appellant’s behalf arguing that his life sentence is invalid under Apprendi.  The postconviction court denied appellant’s postconviction petition and motion for correction of sentence holding that (1) the pronouncements in Apprendi do not retroactively apply on collateral review; and (2) appellant’s other claims lacked merit and were precluded on postconviction review because he failed to raise them on direct appeal.  This appeal followed.

D E C I S I O N

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  A postconviction court decision will not be disturbed on appeal unless the court abused its discretion. Id.  A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (footnote omitted).

I.

            Appellant argues that his life sentence was improper because any facts that increased his penalty should have been submitted to the jury and proved beyond a reasonable doubt.  For this proposition, appellant relies on a United States Supreme Court decision that was decided after his direct appeal.

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

 

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  In light of Apprendi, this court held that the patterned sex-offender statute violates due process because it increases the statutory maximum sentence for offenders sentenced under it based on findings by the sentencing court rather than the jury.  State v. Grossman, 622 N.W.2d 394, 399 (Minn. App. 2001), aff’d 636 N.W.2d 545 (Minn. 2001). 

            When appellant was sentenced in 1998 for his 1997 offense, the statutory maximum for first-degree criminal sexual conduct was 30 years.  Minn. Stat. § 609.342, subd. 2 (1996).  Pursuant to Minn. Stat. § 609.346, subds. 2a(a)(1), (2)(i) (1996), the court increased appellant’s sentence from 30 years to life imprisonment because he was convicted of first-degree criminal sexual conduct and had previously been sentenced as a patterned sex offender in Washington County.[4]   The postconviction court held that, because Apprendi was decided after appellant’s direct appeal, it did not retroactively apply on postconviction review.  A reviewing court need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

            We note that Apprendi recognized that a court may, consistent with due process, make a finding as to a prior conviction that enhances the sentence for the current offense beyond the statutory maximum.  Appellant’s sentence was increased from the statutory 30-year maximum to a life sentence based on a judge’s finding as to his prior patterned sex-offender sentence.  Although this finding may fall within the Apprendi exception, Apprendi was decided after appellant’s direct appeal and is only applicable if the rule it announces applies retroactively on collateral review.  Cf. Grossman, 636 N.W.2d at 549 (Minn. 2001) (although appellant was convicted and sentenced prior to Apprendi, its holding applies on appellant’s direct appeal because new rules for the conduct of criminal prosecutions must be applied retroactively to all criminal cases pending on direct review) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708 (1987)). 

            Apprendi announced a new constitutional rule that cannot be retroactively applied on collateral review unless it (1) “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”; or (2) is a watershed rule of criminal procedure that alters “our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.”  Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76 (1989) (quotation omitted). 

            Appellant argues that Apprendi is a watershed rule because it impacts the fairness of a particular sentence by mandating that factors that increase a penalty be submitted to the jury and proved beyond a reasonable doubt.  Even though Apprendi’sretroactive application on postconviction appeal is one of first impression in Minnesota, the Eighth Circuit has held, consistent with the Ninth and Fourth Circuits and the overwhelming majority of district courts, that “Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review.”  U.S. v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, ___ U.S. ___, 122 S. Ct. 848 (2002).[5]  Although it can be argued that the rule in Apprendi increases the accuracy of a sentence, it does not increase the reliability of the guilt-innocence determination because the rule limits the sentencing exposure of those who have already been validly convicted.  Moss, 252 F.3d at 999.  We determine that in this case Apprendi cannot retroactively apply to allow appellant to challenge his sentence on postconviction review.  Such a question is best left to the supreme court.  See Terault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (noting that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).  

II.

            Appellant claims that he was denied effective assistance of counsel when his attorney in the postconviction proceeding failed to raise ineffective assistance of counsel claims against his trial and appellate lawyers.  Appellant, however, failed to raise these claims to the postconviction court, and we will not consider matters that were not argued or considered below.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court will generally not consider issues not raised or considered in the court below). 

Appellant also argues that (1) he was improperly sentenced under Minn. Stat. § 609.346 (1996) because he had not been sentenced as a sex offender prior to the date of his offense in this case; (2) he was denied his constitutional right to a fair and impartial jury because the district court erred in refusing to excuse a juror based on bias, thus forcing him to use “his last preemptory challenge”; and (3) he was not given reasonable notice or an opportunity to be heard at his sentencing hearing.  Postconviction relief is not available for claims known, but not raised at trial or on direct appeal, unless the claims are so novel that their legal basis was not reasonably available to counsel at the time direct appeal was taken.  Roby, 547 N.W.2d at 357.  Because appellant knew of these claims when his direct appeal was taken and failed to raise them, they are precluded on postconviction review. 

III.

            Appellant raises two motions on appeal.  First, he requests that documents relating to his Washington and Dakota County criminal sexual conduct convictions be considered on appeal, and, second, that the court accept an addendum to his brief that makes an arguement based on these documents.  Under the rules of appellate procedure, the record on appeal consists only of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings * * * .”  Minn. R. Civ. App. P. 110.01.  “Although a party may submit a supplemental record to provide relevant pieces of the record” not contained in the appendices of the briefs, “a party may not change the record itself on appeal.”  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 2001).  Because appellant is attempting to supplement the record on appeal with new documents involving his Washington and Dakota County convictions, this motion is denied.  Furthermore, appellant’s motion to accept an addendum to his brief is also denied because it argues based on these new documents. 

Affirmed.