STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2331

Richard Willette, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 16, 2005

Affirmed

Stoneburner, Judge

Hon. Thomas M. Stringer

Ottertail County District Court

File No. KX94287

Richard Willette, MCF – Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

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

David J. Hauser, Ottertail County Attorney, Suite 320, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant Richard Willette challenges the denial of his petition for postconviction relief challenging a sentence for criminal sexual conduct. Appellant argues that the upward durational departure from the presumptive guidelines sentence based on judicial findings of aggravating factors violated his right to a jury trial under Apprendi and Blakely. Appellant argues that those decisions apply retroactively to his sentence and that he received ineffective assistance of counsel, who failed to advise him of his right to a jury trial on sentencing matters under those decisions. Because appellant’s ineffective-assistance-of-counsel claim is without merit and the decisions he cites do not apply retroactively, we affirm.

FACTS

On September 28, 1994, appellant was found guilty of nine counts of criminal sexual conduct in the first degree under Minn. Stat. § 609.342 (1990). He was sentenced in March 1995 to 480 months, an upward durational departure from the sentencing guidelines based on the judge’s findings that he was a patterned sex offender and that his crimes involved severe aggravating factors. Appellant’s sentence was affirmed on direct appeal in March 1996. State v. Willette, No. C4-95-1088 (Minn. App. Mar. 12, 1996), review denied (Minn. May 21, 1996).

Appellant petitioned for postconviction relief on October 18, 2004. The district court denied the petition. This appeal followed.

D E C I S I O N

Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). This court will not disturb the decisions of a postconviction court absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). The scope of review is limited to determining whether there is sufficient evidence in the record to support the findings of the postconviction court. Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).

Appellant argues that he is entitled to postconviction relief because the upward durational departure imposed by the sentencing court violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Appellant contends that because he did not knowingly and intelligently waive his right to a jury determination of the sentencing enhancement, his sentence should be reduced to the presumptive guidelines sentence, resulting in his immediate release.

In Blakely, the Supreme Court held that an upward sentencing departure is unconstitutional unless the facts on which the departure was based were admitted by the defendant or found beyond a reasonable doubt by a jury. Blakely, 124 S. Ct. at 2537 (extending the holding in Apprendi that “other 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.” 530 U.S. at 490, 120 S. Ct. at 2362-63). Minnesota courts have concluded that Blakely applies to the Minnesota sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004); State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004). Because appellant’s conviction and sentences were final before Apprendi and Blakely were decided, the decisions would have to apply retroactively in order for appellant to obtain postconviction relief. This court has previously held that neither Apprendi nor Blakely applies retroactively on collateral review of a sentence. State v. Petschl, 692 N.W.2d 463, 472 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005) (holding that Blakely does not announce a watershed rule subject to retroactive application on collateral review of convictions that were final before the release of Apprendi); Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003) (holding that Apprendi does not apply retroactively); see also State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004) (holding Blakely not retroactively applicable to convictions final after release of Apprendi), review granted (Minn. Jan. 20, 2005).

Because appellant’s petition for postconviction relief is a collateral attack on a conviction that was final before Apprendi or Blakely were decided, appellant is not entitled to retroactive application of either rule, and appellant’s petition for postconviction relief was properly denied. Because the decisions appellant relies on were not in existence at the time of his conviction and sentence, appellant’s claim that he received ineffective assistance due to counsel’s failure to advise him of rights announced in Apprendi and Blakely is without merit.

Affirmed.