STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2081

Kelly James Leith, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 5, 2005

Affirmed

Wright, Judge

Dakota County District Court

File No. K2-01-1383

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

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

James C. Backstrom, Dakota County Attorney, Shirley A. Leko, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (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 argues that he is entitled to postconviction relief because his sentence constitutes an upward durational departure imposed in violation of the Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the Blakely decision is not subject to retroactive application on collateral review, we affirm.

FACTS

Appellant Kelly Leith pleaded guilty to making terroristic threats against his estranged wife and to kidnapping her male friend, in violation of Minn. Stat. งง 609.25, subds. 1(3), 2(2), .713, subd. 1 (2000). The district court imposed the presumptive guidelines sentence of 27 months’ imprisonment for the terroristic-threats offense and a concurrent sentence of 130 months’ imprisonment for the kidnapping offense. The 130-month sentence is an upward durational departure from the presumptive guidelines sentence of 108 months. The district court based the upward departure on two aggravating factors: (1) Leith’s violation of the victim’s zone of privacy and (2) his particular cruelty toward the victim. We affirmed the sentence in State v. Leith, No. C8-02-577 (Minn. App. July 2, 2002), and the Minnesota Supreme Court denied Leith’s petition for review on August 20, 2002.

On August 18, 2004, Leith petitioned for postconviction relief, alleging that his sentence was unconstitutional under Blakely v. Washington. The district court denied the petition, and this appeal followed.

D E C I S I O N

A petition for postconviction relief is a collateral attack on the judgment, which carries a presumption of regularity. 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).

In Blakely, the Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[.]” 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63). The Blakely courtheld that the greatest sentence a judge can 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. Accordingly, the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543. Blakely announced a new constitutional rule that was not dictated by the holding of Apprendi. State v. Houston, 689 N.W.2d 556, 558-59 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).

Leith argues that he is entitled to postconviction relief because the Blakely decision merely interprets Apprendi and he did not waive his right to a jury trial on the factors justifying his sentencing departure. Leith maintains that he does not seek retroactive application of Blakely. Rather, he is entitled to prospective application of Apprendi in light of Blakely’s interpretation of the Apprendi decision.

As a threshold matter, Leith asserts that, because he could not have raised his Apprendi claim in his direct appeal, his claim is not waived. We agree. As a general rule, “once a direct appeal has been taken, all matters raised in it, and all claims known but not raised, will not be considered in postconviction proceedings.” Id.at 559 n.1. But in the interest of fairness, we may consider a postconviction claim if the petitioner did not “deliberately and inexcusably” fail to raise it on direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Because, at the time of Leith’s direct appeal, we interpreted Apprendi to apply only to those sentences that literally exceeded the “statutory maximum,” State v. McCoy, 631 N.W.2d 446, 450-51 (Minn. App. 2001), we cannot conclude that Leith deliberately and inexcusably failed to raise the Apprendi claim in his direct appeal. Leith, therefore, is not barred from doing so in a postconviction proceeding. Houston, 689 N.W.2d at 559 n.1.

After Leith submitted his appellate brief, we released our decision in Houston, which is dispositive of the issue Leith raises here. In Houston, the defendant was sentenced after Apprendiwas decided, and we determined that Blakely was not “dictated” by the holding of Apprendi. Id. at 558-60. Because Blakely does not affect the scope of the government’s power to proscribe crime and because it is not a watershed rule of criminal procedure, we concluded that Blakely does not fall within the exceptions to the general rule of prospective application of new rules of law to cases on collateral review. Id.at 560; see also Teague v. Lane, 489 U.S. 288, 307, 311, 109 S. Ct. 1060, 1073, 1075-76 (1989) (enumerating exceptions to prospective applications). Therefore, Blakely is not subject to retroactive application on collateral review. Houston, 689 N.W.2d at 560.

Leith’s conviction and sentence became final on November 18, 2002, the deadline for filing a petition for writ of certiorari to the United States Supreme Court. U.S. S. Ct. Rule 13. Blakely was decided on June 24, 2004. Because his conviction and sentence were final when the new rule was announced, Leith may not avail himself of the new rule. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). Accordingly, the district court did not err in denying Leith’s petition for postconviction relief.

Affirmed.