This opinion will be unpublished and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

A04-2179

 

 

Michael Daniel Vanhouse,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 19, 2005

Affirmed

Klaphake, Judge

 

Beltrami County District Court

File No. K3-99-1329

 

 

Michael D. Vanhouse, #148732, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Shari R. Schluchter, Chief Assistant County Attorney, 619 Beltrami Avenue, Suite 40, Bemidji, MN  56601 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Michael Daniel VanHouse was convicted on August 11, 2000, of first-degree criminal sexual conduct and sentenced to 30 years in prison, the statutory maximum sentence under Minn. Stat. § 609.342, subds. 1(a), 2 (2000).  His conviction was affirmed on direct appeal to this court.  State v. Vanhouse, 634 N.W.2d 715 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  In 2004, appellant filed a postconviction petition, asking for correction of his sentence in accordance with Blakely v. Washington, 124 S. Ct. 2531 (2004).  Appellant challenges the district court’s denial of his request for postconviction relief.

            Because appellant is not entitled to retroactive application of the Blakely holding on collateral review, the district court did not abuse its discretion by denying his petition.  We therefore affirm.

D E C I S I O N

            “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The postconviction court’s decision will not be reversed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            Appellant was sentenced in 2000, after the United States Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  In that case, the court stated that “[o]ther 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.”  Id. at 490, 120 S. Ct. at 2362-63.  Based on this, appellant was sentenced to 30 years, the statutory maximum, rather than an enhanced 40-year sentence under Minn. Stat. § 609.108 (2000), the predatory offender statute.

            In 2004, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the court reaffirmed Apprendi, but stated that for Apprendi purposes, the statutory maximum is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537.  This means that the “statutory maximum” is the presumptive sentence under a determinate sentencing scheme.  The Minnesota Supreme Court acknowledged the applicability of Blakely to the Minnesota Sentencing Guidelines in State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam order holding that imposition of upward durational departure based on aggravating factors not considered by jury was violation of defendant’s rights under Blakely, and stating that full opinion will follow).  Appellant therefore argues that his sentence should be corrected to the presumptive sentence of 98 months.

            A defendant is entitled to the benefit of a new federal rule of criminal law or procedure that is announced while his or her case is pending on direct review.  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  A case is pending “until such time as the availability of direct appeal has been exhausted, 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.”  Id.  Under these guidelines, appellant’s direct appeal rights were exhausted as of March 2002.  See Meemken v. State, 662 N.W.2d 146, 149 (Minn. App. 2003) (stating that new constitutional rule cannot be applied retroactively to cases on collateral review, except as permitted in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989)).

            Under Teague, a new constitutional rule may be applied retroactively in two limited situations: (1) if the new rule places certain kinds of individual conduct beyond the power of the government to criminally proscribe; or (2) if the new rule represents a “watershed rule” of criminal procedure that changes the notions of basic procedures essential to the fairness of a criminal conviction.  State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  The first exception is not applicable here.  In Petschl, 692 N.W.2d at 472, this court stated that both Apprendi and Blakely were not concerned with increasing the reliability of the determination of guilt, the rationale for the second Teague exception, but were concerned only with accuracy in sentencing and thus were not subject to retroactive application on collateral review.

            More specifically on point, in State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004), review granted (Minn. argued May 5, 2005), this court concluded that a defendant who was sentenced after Apprendi but whose direct appeal was final before Blakely, could not claim retroactive application of Blakely on collateral review.  We reasoned that Blakely was a new rule and not dictated by the holding of Apprendi, but that it also did not fall within the Teague exceptions, because it did not change procedural rules designed to enhance the fairness of the conviction.  Houston, 689 N.W.2d at 559-60.

            We therefore conclude that because appellant is not entitled to retroactive application of Blakely, the district court did not abuse its discretion by denying his petition for postconviction relief. 

            Affirmed.