This opinion will be unpublished and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

A04-2236

 

 

Paul Michael Reineke, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed August 30, 2005

Affirmed

Lansing, Judge

 

Otter Tail County District Court

File No. K6-95-68

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and

 

David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

 

John Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this postconviction sentencing appeal, Paul Reineke argues that the district court’s upward durational departure is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because Reineke’s conviction was final before the Supreme Court decided Blakely and because Blakely does not apply retroactively, Reineke may not obtain sentencing relief through collateral review, and we affirm.

F A C T S

The state charged Paul Reineke in January 1995 with two counts of first-degree criminal sexual conduct.  Reineke pleaded guilty under the terms of a plea agreement on July 10, 1995, to one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1994). 

            The district court sentenced Reineke to 200 months in prison and ten years of conditional release.  This sentence amounted to a 90-month upward durational departure from the 110-month presumptive sentence under the sentencing guidelines.  The sentencing court determined that substantial and compelling reasons justified the upward departure.  The reasons, stated by the district court, included that Reineke exploited a position of trust, used physical force that was particularly cruel, threatened to rape the victim again and to kill her family, inflicted significant psychological and emotional harm, violated the victim’s zone of privacy, and used multiple methods of penetration. 

            Almost ten years later, on July 28, 2004, Reineke petitioned for postconviction relief and requested the appointment of a public defender.  The district court appointed a public defender to represent Reineke on the sole issue of whether Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), could be applied retroactively to Reineke’s sentence.  After receiving written submissions, the district court denied Reineke’s petition, and Reineke appeals.  The state does not dispute that if Blakely applies, Reineke is entitled to a remand for resentencing.

D E C I S I O N

A postconviction-relief petition is a procedural mechanism to obtain collateral review of a criminal conviction.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).We review a postconviction court’s decision to grant or deny relief under an abuse-of-discretion standard. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The determination of whether a holding applies retroactively is a legal question, and we review legal questions de novo.  State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).  When the United States Supreme Court announces a new rule of federal constitutional criminal procedure, we apply the decisions of the Supreme Court to determine whether the new rule receives retroactive application.  Am. Trucking Ass’ns v. Smith,496 U.S. 167, 177-78, 110 S. Ct. 2323, 2330-31 (1990); O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

Reineke was convicted and sentenced in 1995 and did not institute a direct appeal.  In 2004, the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which held that an upward sentencing departure is unconstitutional unless the facts upon which the departure was based were admitted by the defendant or found by a jury.  Thus Reineke’s conviction became final almost ten years before Blakely was announced, and also before the Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), which Blakely modified.  See Minn. R. Crim. P. 28.02, subd. 4(3) (mandating that criminal defendant must appeal final judgment within ninety days after its entry). 

The Minnesota Supreme Court recently held that “Blakely is a new rule of constitutional criminal procedure unavailable for collateral use” and it is not a “watershed” rule, which would require retroactivity.  State v. Houston, ___N.W.2d___, ___, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005).  In denying Blakely’s application for collateral review, the court stated that “extending the benefit of the Blakely rule beyond those cases pending on direct review at the time of the announcement of the rule would undermine the retroactivity policy of validating good-faith state court decisions and preserving finality.”  Id.; Sawyer v. Smith,497 U.S. 227, 234, 110 S. Ct. 2822, 2827 (1990) (cautioning against “continuing reexamination of final judgments based upon later emerging legal doctrine”).  The court then concluded that Blakely had not promulgated a “watershed” rule, stating that the new rule would have sentencing implications but would not diminish the likelihood of an accurate conviction.  Houston, 2005 WL 1981578, at *4 (citing Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077 (1989)).

Because Blakely stated a new rule of criminal constitutional procedure, but not a watershed rule, it is governed by the general tenet that the rule does not apply to a case that was final at the time that Blakely enunciated the new rule.  Reineke’s case was final before Blakely was decided, and consequently Reineke may not invoke the Blakely holding to support his petition for collateral review of his sentence.  This analysis similarly applies to convictions and sentences that were final prior to the Supreme Court’s decision in Apprendi.  See, e.g., State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005), cert. denied, 125 S. Ct. 2912 (2005); Meemken v. State,662 N.W.2d 146, 147 (Minn. App. 2003).

For these reasons we conclude that Reineke is not entitled to postconviction review of his sentence in light of Blakely, and the district court correctly applied the law in denying Reineke’s motion for postconviction relief. 

            Affirmed.