This opinion will be unpublished and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

A04-1749

 

Lovell N. Oates, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed July 5, 2005

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 9812470

 

 

Lovell N. Oates, MCF-Stillwater, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court’s second denial of postconviction relief for his  convictions of second-degree murder and second-degree assault.  Appellant argues that (1) he could not be convicted of second-degree murder because the charge was not contained in the indictment; (2) the statutes he was convicted of violating are void because they have no titles or enacting clauses; and (3) both the trial judge and the postconviction judge exhibited bias, demonstrated in part because of the delay in issuing the postconviction order.  Appellant also challenges his sentence, arguing that (1) separate sentences were erroneously imposed because the assaults were part of the same behavioral incident and (2) his sentence was imposed in violation of the Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm.

FACTS

 

Following a 1998 shooting at a nightclub in Minneapolis, a grand jury indicted appellant Lovell Oates on charges of first-degree murder, attempted first-degree murder, and four counts of second-degree assault.[1]  During the incident, Oates pulled a gun on Ricky Fuller, the intended victim.  As Fuller and a nightclub employee struggled to retrieve the gun from Oates, Ragan Durrenberger was shot and killed, and Justin Vasser and Diamond Porter suffered gunshot wounds. 

            Following a jury trial, Oates was convicted of one count of second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (1998), and four counts of second-degree assault, in violation of Minn. Stat. § 609.222, subd. 2 (1998).  The district court imposed the presumptive guidelines sentence of 306 months’ imprisonment for second-degree murder.  The district court also imposed presumptive sentences of 36 months’ imprisonment for each count of second-degree assault and ordered Oates to serve two of these sentences concurrently and the remaining two consecutively. 

            We affirmed Oates’s conviction on direct appeal, holding that any errors in the jury instructions were harmless and that the evidence was sufficient to support the conviction.  State v. Oates, 611 N.W.2d 580, 584-87 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).  We also affirmed Oates’s sentence, holding that the imposition of consecutive sentences was not an abuse of discretion.  Id.at 587.

            Oates filed his first petition for postconviction relief in 2002, arguing that (1) he was denied effective assistance of trial and appellate counsel; (2) the prosecutor committed misconduct at trial; and (3) the district court failed to inquire into his counsel’s prior representation of two Spreigl witnesses.  The district court denied the petition without an evidentiary hearing, and we affirmed the first postconviction ruling.  Oates v. State, No. C7-02-2269, 2003 WL 21911197, at *2-*3 (Minn. App. Aug. 12, 2003). 

            In 2004, Oates filed his second petition for postconviction relief, arguing in relevant part that (1) he was erroneously convicted of second-degree murder because the charge was not contained in the indictment; (2) the district court lacked subject-matter jurisdiction; and (3) the statutes under which he was convicted were void because they lacked titles and enacting clauses.  In its order dated August 24, 2004, the district court denied the second petition because the issues were known when Oates filed both his direct appeal and his first postconviction petition. 

In a supplemental petition, which the district court construed as a third petition for postconviction relief, Oates raised several challenges to his sentence.  After Oates filed a notice of appeal from the August 2004 order, the district court denied relief on Oates’s sentencing claims contained in the supplemental petition. 

D E C I S I O N

 

We review the postconviction court’s findings for clear error and its conclusions of law de novo.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).    We will not disturb the district court’s denial of postconviction relief absent an abuse of discretion.  Doppler v. State, 660 N.W.2d 797, 800 (Minn. 2003).

A district court may “summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.”  Minn. Stat. § 590.04, subd. 3 (2004).  Once a petitioner takes a direct appeal of a conviction, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).  Also, any claim that a petitioner could have raised in a prior postconviction petition will not be considered in a subsequent petition unless the claim is novel and the legal basis was unavailable at the time of direct appeal, or fairness requires consideration of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue.  Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999); Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997). 

I.

            Oates could have raised the following arguments in his direct appeal: (1) the second-degree-murder conviction was erroneous because it was not included in the indictment; (2) the statutes under which he was convicted were void for lack of titles and enacting clauses; and (3) the district court judge exhibited bias by committing errors at trial.  Accordingly, postconviction relief was properly denied on these claims.  See Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (stating that “[w]here direct appeal has already been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief” (quotation omitted)).

On direct appeal, we expressly rejected Oates’s claim that separate sentences were erroneously imposed because the assault counts were part of the same behavioral incident.[2]  See Oates, 611 N.W.2d at 587 (holding that 378-month aggregate sentence did not violate the prohibition against multiple punishments).  Because this issue was previously raised and decided, Oates is barred from relitigating the issue in a subsequent petition for postconviction relief.  Minn. Stat. § 590.04, subd. 3; Taylor v. State, 691 N.W.2d 78, 79 (Minn. 2005).  Thus, the district court properly denied postconviction relief on the multiple-sentencing issue.

II.

            Two of Oates’s arguments are properly before us because they could not have been raised on direct appeal or in his first petition for postconviction relief.  We review these arguments on the merits.

A.

            Oates maintains that the postconviction judge exhibited bias by failing to issue its order in a timely manner.  Due process entitles a criminal defendant to an impartial and disinterested tribunal.  McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998).  A judge must have no actual bias against the defendant.  Id.  When evaluating arguments challenging the impartiality of the tribunal, we consider whether the district court’s conduct prejudiced the outcome.  State v. Sime, 669 N.W.2d 922, 928 (Minn. App. 2003).  In doing so, we presume that the district court executed its duties properly.  McKenzie, 583 N.W.2d at 747.

As to the timely issuance of postconviction orders, Minn. Stat. § 590.04 (2004) provides that “the court shall promptly. . . determine the issues, [and] make findings of fact and conclusions of law with respect thereto.”  Minn. Stat. § 590.04, subd. 1.  Section 590.04 also requires the district court to issue the postconviction order promptly.  Saiki v. State, 375 N.W.2d 547, 549 (Minn. App. 1985), review denied (Minn. Dec. 19, 1985).  Further, Section 546.27 states that “all motions and matters submitted to a judge for a decision . . . shall be disposed of and the decision filed with the court administrator within 90 days[.]”  Minn. Stat. § 546.27, subd. 1(a) (2004).  This language, however, is directory, not mandatory.  Haasken v. Haasken, 396 N.W.2d 253, 257 (Minn. App. 1986). Error cannot be established without a showing of prejudice.  Id.  Delay alone does not necessarily constitute legal error.  Id. 

Oates offers no proof that a failure to issue the postconviction order promptly affected the merit of his claims or the outcome of his postconviction appeal.  The record establishes that, although the postconviction decision was issued five months after the state’s response to the petition, the postconviction order addressed each of Oates’s arguments in a legally correct manner.  In doing so, the order reached the merits of several arguments when such thorough review and analysis were not legally required.  Because Oates has not demonstrated any prejudice from the delay in issuing the postconviction order, his claim of judicial bias fails.

B.

Oates next argues that the sentence imposed violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).[3]  In Blakely, the United States Supreme Court held that, if factual findings are required to justify an increased sentence, absent a knowing and intelligent waiver by the defendant, those facts must be found by a jury and proven beyond a reasonable doubt.  124 S. Ct. at 2536-37.  The Minnesota Supreme Court has held that Blakely applies to upward durational departures from the presumptive sentence under the Minnesota Sentencing Guidelines.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). 

“Consecutive sentencing of multiple felonies with multiple victims is permissive and within the broad discretion of the [district] court.”  State v. Richardson, 670 N.W.2d 267, 284 (Minn. 2003).  Permissive consecutive sentences are not upward durational departures from the presumptive guidelines sentence.  See Minn. Sent. Guidelines II.F (defining permissive consecutive sentences as sentences that may be given “without departure”).  As such, we have held that Blakely does not apply to permissive consecutive sentencing for “crimes against persons.”  State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005), review denied (Minn. May 17, 2005).

Contrary to his argument, Oates did not receive an upward durational departure.  For the second-degree murder offense, the district court imposed the presumptive guidelines sentence of 306 months’ imprisonment.  See Minn. Sent. Guidelines IV (with a criminal history score of zero, the guidelines sentence for second-degree murder, a severity level X offense, is 306 months).  The district court also imposed the 36-month mandatory minimum sentence for each conviction of second-degree assault.  See Minn. Stat. § 609.11, subds. 5, 9 (1998).  When a statute provides for a mandatory minimum sentence, the presumptive sentence is the mandatory minimum duration or the duration under the guidelines grid, whichever is longer.  Minn. Sent. Guidelines II.E.  Because the 36-month mandatory minimum is longer than the 21-month sentence under the guidelines grid, the 36-month sentence imposed for each second-degree assault offense is the presumptive guidelines sentence.  

That the district court ordered Oates to serve two of the 36-month sentences consecutively was not an upward departure because the consecutive sentences were permissive.  Minn. Sent. Guidelines II.F.  Because the district court did not depart upward from the sentencing guidelines, Oates’s argument for relief under Blakely is unavailing.  Moreover, Oates’s sentence was final on August 22, 2000, when the Minnesota Supreme Court denied review of our decision in the direct appeal.  The Blakely decision was released on June 24, 2004.  Blakely does not apply retroactively to a sentence that was final before the Blakely decision was released.  State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004), review granted (Minn. Jan 20, 2005). [4] 

Accordingly, Oates’s challenge to the district court’s denial of postconviction relief fails. 

Affirmed.