STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1843

Jerrad William Wailand, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 16, 2005

Affirmed

Wright, Judge

Beltrami County District Court

File Nos. K3-00-1130, K3-01-568

John M. Stuart, State Public Defender, Benjamin J. Butler, 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

Timothy R. Faver, Beltrami County Attorney, Beltrami County Courthouse, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)

Considered and decided by Peterson, Presiding Judge; Schumacher, 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 denial of postconviction relief, arguing that his sentence imposed in 2000 for attempted third-degree criminal sexual conduct violates 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

On July 18, 2000, appellant Jerrad Wailand pleaded guilty to attempted third-degree criminal sexual conduct, a violation of Minn. Stat. งง 609.17, subd. 1, .344, subd. 1(c) (1998). At the sentencing hearing on August 28, the district court imposed a sentence of 60 months’ imprisonment, stayed its execution, and placed Wailand on probation for seven and one-half years. The 60-month stayed sentence is an upward durational departure and a downward dispositional departure from the presumptive guidelines sentence of 24 months’ imprisonment. Minn. Sent. Guidelines II.G, IV. Wailand did not file a direct appeal of his conviction or sentence.

In June 2001, Wailand admitted violating the conditions of his probation by initiating sexual contact with two girls under the age of 16. Based on this conduct, Wailand pleaded guilty to two counts of third-degree criminal sexual conduct, a violation of Minn. Stat. ง 609.344, subd. 1(b), (d) (2000). After accepting the guilty pleas, the district court revoked Wailand’s probation on the 2000 offense and executed the 60-month sentence previously imposed. The district court then sentenced Wailand to two executed terms of 36 months’ imprisonment for the new offenses and ordered him to serve all of the sentences consecutively.

In 2003, Wailand filed his first petition for postconviction relief, seeking withdrawal of his 2001 guilty pleas. The district court denied the petition without an evidentiary hearing, and we affirmed the ruling. Wailand v. State, A03-803, 2004 WL 727415, at *3 (Minn. App. Apr. 6, 2004), review denied (Minn. June 15, 2004).

In 2004, Wailand filed his second petition for postconviction relief, seeking resentencing under Blakely v. Washington, 124 S. Ct. 2531 (2004). The district court interpreted Wailand’s petition as a challenge to the sentences imposed for the 2001 offenses, rather than the sentence imposed for the 2000 offense. Because the 2001 sentences were not upward departures from the sentencing guidelines, the district court denied the petition without an evidentiary hearing. This appeal followed.

D E C I S I O N

Wailand argues that he is entitled to postconviction relief because the 2000 sentence, which was an upward durational departure, was imposed in violation of his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). 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).

As a threshold matter, we must determine whether Wailand’s Blakely challenge to his 2000 sentence was preserved for appeal. In his 2004 petition for postconviction relief, Wailand did not expressly challenge the 2000 sentence. Rather, referencing only the file numbers for his 2001 convictions, Wailand generally challenged “his sentence” under Blakely. Because the district court interpreted Wailand’s petition as a challenge to the sentences imposed for the 2001 offenses, it did not address whether Wailand’s 2000 sentence violated the right to a jury trial under Blakely. Wailand now contends that, although the petition for postconviction relief is unclear, it should be interpreted liberally to include a challenge to the 2000 sentence, which was an upward durational departure from the sentencing guidelines. We agree.

Generally, a “court shall liberally construe [a postconviction] petition and any amendments thereto and shall look to the substance thereof and waive any irregularities or defects in form.” Minn. Stat. ง 590.03 (2004). We also liberally construe allegations and make allowances in pro se petitions for postconviction relief. Payne v. Erickson, 404 N.W.2d 277, 279 (Minn. 1987); Thomale v. State, 261 N.W.2d 353, 353 (Minn. 1977). In doing so, we may consider an issue raised for the first time in a pro se brief. Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995).

Wailand would not have a cognizable Blakely argument if we did not construe his petition to include a challenge to his 2000 sentence. We, therefore, interpret Wailand’s pro se petition for postconviction relief liberally and consider the Blakely claim even though it was not raised before the district court.

In Blakely, the United States 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 court held 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.

Wailand argues that, because his sentence was not final when the United States Supreme Court decided Apprendi, and because Blakely was merely an extension of the holding in Apprendi, he is entitled to benefit from the rule announced in Blakely. After Wailand submitted his appellate brief, we released our decision in State v. Houston, 689 N.W.2d 556 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005), which is dispositive of the precise issue Wailand raises here.

In Houston, the defendant was sentenced after Apprendi was decided, but before Blakely was released. 689 N.W.2d at 558. In assessing Blakely’s applicability to the defendant’s sentence, we held that Blakely announced a new constitutional rule that was not dictated by the holding in Apprendi. Id.at 559-60. We also held that, because Blakely does not fall within one of the exceptions to the rule of prospective application for a new constitutional rule, Blakely is not subject to retroactive application in a collateral attack on a sentence. Id.at 560; see also Teague v. Lane, 489 U.S. 288, 307, 311, 109 S. Ct. 1060, 1073, 1076 (1989) (enumerating exceptions to rule of prospective application).

Whether Wailand is entitled to relief under Blakely depends on whether hissentence was final when the Blakely decision was released. “A case is final when a ‘judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.’” O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (alteration in original) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6 (1987)). Wailand’s conviction and sentence became final in November 2000, when the 90-day direct appeal period expired. See Minn. R. Crim. P. 28.02, subd. 4(3); State v. Losh, 694 N.W.2d 98, 100 (Minn. App. 2005) (stating where defendant did not file direct appeal within 90 days, his conviction became final). The Blakely decision was released on June 24, 2004. Because Wailand’s sentence was final when the new rule in Blakely was announced, Wailand is not entitled to relief under Blakely. O’Meara, 679 N.W.2d at 339. Accordingly, the district court properly denied Wailand’s postconviction petition to correct his sentence.

Affirmed.