STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2367

State of Minnesota,

Respondent,

vs.

John Patrick Murphy,

Appellant.

Filed August 23, 2005

Affirmed

Stoneburner, Judge

Ramsey County District Court

File No. K2931209

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John Patrick Murphy, 312 Center Avenue West, Dilworth, MN 56529 (pro se appellant)

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 John Patrick Murphy challenges the district court’s order denying his motion for an amended sentence based on an alleged violation of Apprendi and Blakely. Because appellant’s sentence was final before the decisions in Apprendi and Blakely were announced, and because the decisions do not apply retroactively, we affirm.

FACTS

In 1994, appellant pleaded guilty to ten counts of terroristic threats and one count of conspiracy to make terroristic threats and was sentenced to an upward durational departure from the sentencing guidelines. This court and the supreme court affirmed the upward departure on direct appeal. State v. Murphy, No. C3-94-1931 (Minn. App. Apr. 15, 1995); State v. Murphy, 545 N.W.2d 909 (Minn. 1996).

Appellant has filed numerous petitions for postconviction relief and appeals from denial of those petitions. A 2003 district court order requires appellant to have all pleadings pre-screened by a district court judge before appellant may file such documents with the court administrator. Appellant’s motion for relief under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was approved by the screening judge. The district court denied relief on the ground that Apprendi and Blakely do not apply retroactively. This appeal followed.

D E C I S I O N

The application of Blakely v. Washington to a sentence presents a constitutional issue, which this court reviews de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004). “The determination of whether a decision applies retroactively or non-retroactively is a legal question that we review de novo.” State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

Blakely applies to all cases pending on direct review at the time Blakely was released and to subsequent direct appeals. See Petschl, 692 N.W.2d at 470. But this court has previously held that Apprendi does not apply retroactively on collateral challenges, such as petitions for postconviction relief. Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003). And this court has held that “Blakely has the same procedural effect as Apprendi, increasing the accuracy of the sentence but not the conviction . . . [and] is not a watershed rule subject to retroactive application on collateral review.” Petschl, 692 N.W.2d at 472. Accordingly, Blakely, like Apprendi, has been held inapplicable to collateral challenges to convictions that became final before Apprendi was released. See id. (denying retroactive effect of Blakely on cases finally determined before Apprendi). See also State v. Houston, 689 N.W.2d 556, 560 (Minn. App. 2004) (denying retroactive application of Blakely to a conviction that was final post-Apprendi but pre-Blakely), review granted (Minn. Jan. 20, 2005). Appellant’s claim that Apprendi and Blakely apply retroactively to his sentence is therefore without merit.

Appellant argues in the alternative that his sentences were not final when Blakely and Apprendi became law. Appellant argues that because he can appeal revocation of probation on any of the consecutive five-year sentences imposed, his sentence is not final for purposes of the application of Blakely. We disagree. The point at which a judgment becomes final is the critical point for purposes of retroactivity analysis. State v. Losh, 694 N.W.2d 98, 101 (Minn. App. 2005) (declining to apply Blakely to an appeal from a probation-revocation hearing, when the judgment of conviction was final due to the appellant’s failure to file a direct appeal during the time period prescribed by appellate rules), review granted (Minn. June 28, 2005). Losh specifically rejected the argument that because modification of a sentence is possible, a judgment is not final for the purpose of precluding the retroactive application of a new rule. Id. at 101 n.2.

Next, appellant argues that his sentences were not final at the time Apprendi and Blakely were decided because the supreme court left open the possibility of a future appeal on the merits of the geographic restriction condition of probation. A case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed, or a petition for certiorari with the Supreme Court has been filed and finally denied. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). See also State v. Lindquist, 254 Minn. 28, 29, 93 N.W.2d 521, 523 (1958) (a sentence constitutes a final judgment). With regard to the retroactive application of Blakely, the decisive factor regarding the “availability” of direct appeal is the supreme court’s disposition of appellant’s challenge to the length of the sentence imposed. There is no question that in this case, the length of the sentences imposed was affirmed by the Minnesota Supreme Court in 1996. Appellant did not pursue an appeal to the United States Supreme Court, therefore the availability of direct review of the length of appellant’s sentence ended 90 days after the state supreme court issued its decision. We find no merit in appellant’s argument that Apprendi and Blakely should be applied to his sentence.

Finally, appellant’s petition mentions, in passing, his claim that the geographic restriction on where he can serve his probation is unlawful. Because this claim was beyond the scope of the claim that the district court permitted appellant to assert in this petition, the state did not brief this issue to the district court and the district court’s order does not mention this claim. Appellant raises the issue on appeal, but because the issue was not appropriately raised in the district court and was not considered by the district court, we decline to consider it in this appeal.

Affirmed.