This opinion will be unpublished and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

A04-2323

 

John Anthony Carroll, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 23, 2005

Affirmed
Parker, Judge*

 

Hennepin County District Court

File No. 02080883

 

 

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

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Appellant John Anthony Carroll challenges the district court’s denial of his petition for postconviction relief, arguing that the court erred in concluding that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), does not apply retroactively to cases on collateral review.  We affirm.

FACTS

Following a trial on stipulated facts, appellant was convicted in 2003 of theft over $2,500 in violation of Minn. Stat. § 609.52, subd. 2(1) (2002).  The district court sentenced appellant to an upward durational departure based on the career offender statute, which permits a judge to impose “an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge” makes specified findings on the record.  Minn. Stat. § 609.1095, subd. 4 (2004).  The district court denied appellant’s petition for postconviction relief, in which he argued that his sentence must be reduced because his jury trial right under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was violated where the departure was based upon judicial, rather than jury, findings.  This appeal follows.

D E C I S I O N

Appellant argues he is entitled to the retroactive application of the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which issued after his sentence became final.  We review de novo whether or not a decision applies retroactively.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).  If a federal decision constitutes a new rule, the new rule will not be applied retroactively to a conviction that is final unless it fits into certain exceptions.  Id. at 339.  A decision is a new rule if it “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or is not “dictated by precedent existing at the time the defendant’s conviction became final.”  Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989).

The United States Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), 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.”  Blakely specified that “the ‘statutory maximum’ for Apprendi purposes 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.”  542 U.S. 296, 124 S. Ct. 2531, 2537.  The Minnesota Supreme Court has held that Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 689 N.W.2d 785 (Minn. Dec. 16, 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 indicating that full opinion will follow).

            In State v. Houston, 689 N.W.2d 556, 559-60 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005), this court held that the Blakely decision created a new rule that does not fit into one of the exceptions and will not be applied retroactively on collateral review to convictions that were final before Blakely was decided.  Following Houston, we conclude appellant is not entitled to retroactive application of Blakely.

Affirmed.