This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1875

 

 

James Joseph Meemken, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 3, 2005

Affirmed

Halbrooks, Judge

 

 

Stearns County District Court

File No. K4-97-3061

 

 

 

James Joseph Meemken, OID #166665, Stillwater Correctional Facility, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Janelle P. Kendall, Stearns County Attorney, Will R. Brost, Assistant County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303  (for respondent)

 

 

            Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant contests the district court’s order denying his third postconviction petition challenging his 1998 sentence for second-degree criminal sexual conduct.  Appellant argues that Blakely should apply retroactively to his upward departure under the patterned-sex-offender statute.  Because the district court did not err in concluding that Blakely does not apply retroactively to appellant’s case, we affirm.

FACTS

            In April 1998, following a jury trial, appellant James Joseph Meemken was convicted of one count of attempted criminal sexual conduct in the second degree in violation of Minn. Stat. §§ 609.343, subds. 1(a), 2; .346, subd. 2; .17, subd. 1 (1996), and one count of solicitation of a child to engage in sexual conduct in violation of Minn. Stat. § 609.343, subd. 2 (1996).  The district court subsequently sentenced appellant as a patterned sex offender under Minn. Stat. § 609.1352, subd. 1a (1996),[1] and ordered him to serve a 240-month prison sentence for the attempt conviction.  The sentence was an upward durational departure of 90 months.  As a basis for the upward departure, the district court listed aggravating circumstances, concluded that appellant was a patterned sex offender, and imposed a sentence that was authorized under the patterned-sex-offender statute.  See Minn. Stat. § 609.1352, subd. 1a (increasing statutory maximum to 40 years for predatory offense when sentenced under the patterned-sex-offender statute).

On direct appeal, appellant challenged (1) the district court’s decision to allow the jury to review during deliberations a videotaped interview of the victim; and (2) the sufficiency of the evidence.  This court affirmed appellant’s convictions in State v. Meemken, 597 N.W.2d 582 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).

In October 2001, appellant filed a petition for postconviction relief alleging ineffective assistance of counsel.  The district court denied appellant’s petition and this court affirmed in Meemken v. State, No. C2-02-915, 2002 WL 31554006 (Minn. App. Nov. 19, 2002).

In April 2002, appellant filed a second petition for postconviction relief, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and arguing that facts which were a basis for his increased sentence were neither submitted to the jury nor proved beyond a reasonable doubt.  We affirmed the district court’s denial of postconviction relief, concluding that the Apprendi rule does not apply retroactively to a collateral review.  Meemken v. State, 662 N.W.2d 146 (Minn. App. 2003).

On July 10, 2004, appellant filed his third petition for postconviction relief, seeking to have his sentence vacated based on the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  The district court denied appellant’s petition, concluding that Blakely did not apply retroactively to appellant’s case.  This appeal follows.

D E C I S I O N

            Petitions for postconviction relief are collateral attacks on judgments that carry a presumption of regularity and will not be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  We will not disturb the decision of the postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Appellant contends that he is entitled to postconviction relief because the upward durational departure imposed by the sentencing court violates the rule set forth in Blakely v. Washington, 124 S. Ct. 2531 (2004).  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.”  Id. at 2537.  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  

“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 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  The exceptions apply where the new rule (1) “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or (2) “requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.”  Id. at 311, 109 S. Ct. at 1075-76 (quotations omitted).  A case becomes final when “the availability of direct appeal has been exhausted, or 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 v. State, 679 N.W.2d 334, 336 (Minn. 2004).

Here, the availability of direct appeal of appellant’s conviction was exhausted on September 28, 1999, when the Minnesota Supreme Court denied review.  The time for appellant to petition the United States Supreme Court expired 90 days later, on December 27, 1999.  See Sup. Ct. R. 13.1 (“A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed . . . within 90 days after entry of the order denying discretionary review.”).  Accordingly, appellant’s case became final on that date, well before Blakely was decided.

This court recently reviewed the applicability of Blakely to postconviction petitions involving defendants whose sentences were finalized before Blakely and concluded that Blakely does not apply retroactively on collateral review.  State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005). 

[T]he Blakely decision . . . does not fall within the Teague exceptions to the general rule of non-retroactive application.  It does not impact the scope of government power to proscribe crime[,] [a]nd . . . is not a watershed rule that alters the understanding of the basic procedures essential to the fairness of a criminal conviction.

 

Id. (citation omitted); see also State v. Petschl, 692 N.W.2d 463, 472 (Minn. App. 2004) (concluding that “[b]ecause the Blakely rule does not improve the accuracy or fairness of a trial, . . . it is not a watershed rule subject to retroactive application on collateral review”), review denied (Minn. Jan. 20, 2005).  Accordingly, appellant is not entitled to any relief under Blakely.

            Affirmed.