This opinion will be unpublished and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

A04-1902

 

Jerome Dahlen, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 5, 2005

Affirmed

Kalitowski, Judge

 

Clay County District Court

File No. K3-01-1316

 

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 870 North 11th Street, Moorhead, MN 56561 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jerome Dahlen challenges the district court’s order denying his petition for postconviction relief.  Appellant contends that the district court imposed a sentence that was unconstitutional because Blakely v. Washington, 124 S. Ct. 2531 (2004), applies retroactively to his case.  In a pro se brief appellant also argues that (1) he was denied effective assistance of counsel; (2) he was subjected to double jeopardy; (3) the district court failed to rule on an objection to the constitutionality of the plea agreement; and (4) the prosecutor engaged in misconduct.  We affirm.

D E C I S I O N

I.

            Whether or not a decision applies retroactively is a legal question subject to de novo review.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).  If a defendant’s conviction is already final when a new rule of federal constitutional criminal procedure is announced, the defendant ordinarily may not benefit from the new rule.  Id.at 339.  “[A] court’s decision enunciates a ‘new rule of law’ when the decision was not dictated by precedent existing at the time the defendant’s conviction became final.”  Id.(citing Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060 (1989)).  “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, 489 U.S. at 310, 109 S. Ct. at 1075 (recognizing exceptions for rules that place certain individual conduct beyond the power of criminal law-making authority, and for watershed rules of criminal procedure). 

            On August 31, 2001, pursuant to a plea agreement, appellant pleaded guilty to first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2000); second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2000); and disseminating pornographic work involving a minor in violation of Minn. Stat. § 617.247, subd. 3 (2000).  On October 15, 2001, as agreed to by appellant, the district court imposed concurrent sentences of 15 months for disseminating pornographic work involving a minor; 21 months for second-degree criminal sexual conduct; and 200 months for first-degree criminal sexual conduct.  The latter sentence was an upward departure from the 144-month presumptive sentence.  The district court based this departure on the plea agreement and the court’s finding that the victim was treated with particular cruelty.  Appellant concedes that his convictions became final on or about January 15, 2002, or 90 days after sentencing, well before Blakely was decided.

            Appellant contends that the district court’s departure from the sentencing guidelines was unconstitutional under retroactive application of Blakely v. Washington, 124 S. Ct. 2531 (2004).  Appellant argues that Blakely is subject to retroactive application because it did not announce a new rule of law, but merely applied the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  But this court has recently held that Blakely did announce a new rule of law that is not subject to retroactive application on postconviction review when the defendant’s conviction was final before Blakely was decided.   See State v. Houston, 689 N.W.2d 556, 559-60 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005); State v. Petschl, 692 N.W.2d 463, 471-72 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  Therefore, we cannot say that the postconviction court erred in denying appellant retroactive application of Blakely.

II.

            In a pro se supplemental brief, appellant contends that the postconviction court erred in denying the following claims for relief:  (1) appellant was denied effective assistance of counsel because counsel failed to object to insufficient time to consider a proposed plea agreement; (2) appellant was subject to double jeopardy; (3) the district court failed to rule on the constitutionality of the plea; and (4) the prosecutor threatened appellant while negotiating the plea agreement.

            Appellate courts review “a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.”  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quotation omitted).  “A petitioner seeking postconviction relief has the burden of establishing by ‘a fair preponderance of the evidence’ the facts alleged in the particular petition.”  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (quoting Minn. Stat. § 590.04, subd. 3 (2000)). 

            1.         Effective assistance of counsel

            To succeed on his claim of ineffective assistance of counsel, appellant “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . .  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

            Appellant makes general assertions that his counsel was ineffective for failing to object to the time allowed to accept the plea offer, failing to request an evidentiary hearing, and failing to act in appellant’s best interest.  In support of this position, appellant presented evidence that he was given only five days to accept or reject the plea agreement in violation of “LR 83.10 (G) pleading deadline of the sentencing reform act of 1984, 18 U.S.C. 3551, et seq.”  But the postconviction court held that appellant’s “interpretation of the rule is incorrect and the rule has no impact on his argument that counsel’s representation was ineffective.”  And appellant presents no argument to the contrary.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not briefed on appeal are waived), reviewed denied (Minn. Aug. 5, 1997). 

            The postconviction court also held that appellant

fails to prove that at the time of the plea hearing, counsel’s representation fell below the objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.  A review of the file indicates that the plea agreement was reasonable and fair to the defendant.

 

The state points out that the evidence against appellant was overwhelming and that appellant’s counsel had no control over the timing of the state’s plea offer.  On review of the record, we cannot say that appellant established that his counsel’s representation fell below an objective standard of reasonableness.

            2.         Double jeopardy

            Appellant claims that he was subjected to double jeopardy under the plea agreement because of counsel’s “failure to object to double punishment/multiple punishments which caused double jeopardy under the plea agreement in accordance to Blockburger v. United States.”  See 284 U.S. 299, 304, 52 S. Ct. 180 (1932).  Appellant’s argument is without merit.

            “The double jeopardy clauses of the federal and state constitutions include a protection from multiple punishments for the same offense.  In Minnesota, there is also statutory protection against multiple punishment for the same conduct.”  State v. Senske, 692 N.W.2d 743, 747 (Minn. App. 2005) (citation omitted), review denied (Minn. May 17, 2005); see also Minn. Stat. § 609.035, subd. 1 (2000) (providing that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them”). 

            Appellant asserts that he was subjected to double jeopardy under the Blockburger test because “the same evidence was used to convict” appellant of first-degree criminal sexual conduct and second-degree criminal sexual conduct.  We construe appellant’s argument to be that he was convicted and sentenced for the same offense twice.  “Whether two offenses are the ‘same offense’ for purposes of double jeopardy is determined under the Blockburger test, which asks whether each offense requires proof of an act that the other does not.”  State v. Bowen, 560 N.W.2d 709, 711 (Minn. App. 1997) (citing Blockburger, 284 U.S. at 304, 52 S. Ct. at 182). 

            Here, although appellant’s offenses did involve the same victim, his convictions for first-degree and second-degree criminal sexual conduct resulted from different actions occurring at different times.  Appellant was convicted of (1) second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2000), for engaging in sexual contact with the victim on or between September 1, 1996 and May 7, 2000; and (2) first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2000), for engaging in sexual penetration with the victim on or between May 8, 2000 and June 10, 2001.  These offenses occurred at different times, and one required sexual contact while the other required sexual penetration.  Therefore, appellant was not subjected to double jeopardy.   

            3.         Failure to rule on constitutionality of appellant’s plea

 

            Appellant contends that the district court failed to rule on an objection made at the plea hearing.  Appellant states that whether the objection was made formally or informally, his counsel expressed concern as to whether the upward departure was appropriate.  At the plea hearing, appellant’s counsel stated:

Assuming the court accepts the plea, which we expect the court will, we’ll review the facts to determine whether it’s correctly offered.  Normally, your honor, from the defendant’s perspective a plea agreement is desirable to limit the upward exposure and in this instance I have to concede that that was a concern for us.  And I also have to express concern that the court consider whether the upward departure is appropriate.  So I do ask the court to be mindful of that.

 

In denying appellant’s claim, the postconviction court stated that “[a] review of the transcript of the plea hearing indicates that no formal objection by counsel was raised.”  The record does not support appellant’s assertion that he raised a constitutional issue or objection at the plea hearing.  Thus, we cannot say that the postconviction court erred in denying relief on this claim.

            4.         Prosecutorial misconduct

            Appellant claims that the prosecutor threatened appellant “at the bottom of plea agreement with stacking of charges and other counts.”  The postconviction court held that the record provides no basis for this claim, and we find no evidence to the contrary.  Moreover, appellant indicated at the plea hearing that he fully understood the terms and conditions of the plea agreement and that no one made any threats or promises to induce a guilty plea.  Therefore, we cannot say that the postconviction court erred in denying appellant’s postconviction claim of prosecutorial misconduct. 

            Affirmed.