This opinion will be unpublished and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

A04-2248

 

Christina Lynn Erickson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 27, 2005

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 98108309

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, Minnesota 55113-3724 (for appellant)

 

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

 

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

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges the denial of her petition for postconviction relief, arguing that the district court’s imposition of a double upward durational departure from the presumptive guideline sentence based on judicial findings of aggravating factors violated her right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm.

FACTS

            On April 1, 1999, following a bench trial, the district court found appellant Christina Erickson guilty of first-degree aggravated robbery under Minn. Stat. §§ 609.245, subd. 1, 609.11, 609.05 (1998), and kidnapping to facilitate the commission of a felony under Minn. Stat. §§ 609.25, subd. 1(2), 609.05 (1998).  The district court granted the state’s motion for a double upward durational departure, sentencing appellant to 124 months on the aggravated-robbery conviction.  The district court based its double upward departure on four factors, finding that appellant (1) treated the victim with particular cruelty; (2) committed her crimes as part of a group of three or more persons who all actively participated in the crimes; (3) did not play a minor or passive role in the crimes; and (4) made no attempt to hinder or mitigate the crimes.

On August 15, 2000, appellant petitioned for postconviction relief, challenging her sentence.  The postconviction court denied relief, and this court affirmed on May 15, 2001, holding that substantial and compelling reasons justified the district court’s departure from the presumptive sentence.  State v. Erickson, No. C2-00-2076, 2001 WL 506947, at *2 (Minn. App. May 15, 2001).  On August 5, 2004, appellant again petitioned for postconviction relief, arguing that her sentence was unconstitutional under Apprendi and Blakely.  The postconviction court denied relief.  This appeal follows.

D E C I S I O N

Appellant argues that her sentence was unconstitutional because a judge, not a jury, found the facts supporting the double upward durational departure.  “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A postconviction court’s findings are afforded great deference and its decision will not be reversed unless the postconviction court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But a postconviction court’s conclusions of law are subject to de novo review.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).  Whether a decision applies retroactively is a legal question.  State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Jan. 20, 2005).

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 v. Washington 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.”  124 S. Ct. 2531, 2537 (2004) (emphasis omitted).  The Minnesota Supreme Court has held that Apprendi/Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, ___ N.W.2d ___, ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005).

“[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  “But if the defendant’s conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.”  Id. at 339–40.  “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”  Id. at 336. 

Appellant argues that she is entitled to relief under the rule announced in Blakely because the time period during which her appeal would have been pending had she appealed should be stayed because the district court allegedly failed to inform her of her right to appeal.  Therefore, according to appellant, she should be considered to have had a direct appeal pending when Apprendi was decided for purposes of benefiting from new rules of law issued during that time. 

Appellant’s argument fails because Blakely does not apply retroactively to collateral attacks on convictions pending at the time the Supreme Court decided Apprendi.  State v. Houston, 702 N.W.2d 268, ___, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005) (holding that the court in Blakely announced a new rule, but that it did not fit into the exceptions for retroactive application set forth in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989)).  Furthermore, we conclude that appellant’s conviction became final on approximately June 30, 1999, when she failed to perfect a direct appeal.  Thus, appellant did not have a direct appeal pending when Apprendi was decided on June 26, 2000.  See Apprendi, 530 U.S. at 466, 120 S. Ct. at 2348.

We also note that the postconviction court found that appellant did not prove that the district court failed to inform her of her right to appeal.  We conclude that the postconviction court’s finding was not clearly erroneous.[1]  Moreover, even if the district court failed to inform appellant of her right to appeal, such an error should not be viewed as extending the time for appeal.  See Minn. R. Crim. P. 27 cmt. (“Failure to notify the defendant of the right to appeal does not extend the time for appeal.”).

Because appellant’s conviction was final before the Supreme Court decided Blakely, she is not entitled to retroactive applicationof Blakely on collateral review.  The postconviction court did not abuse its discretion by denying appellant’s postconviction petition for relief. 

Affirmed.