A04-2256

Ofiong Louis Sanders, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 20, 2005

Affirmed

Willis, Judge

Ramsey County District Court

File No. K3-97-1762

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

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

WILLIS, Judge

Appellant challenges the denial of his petition for postconviction relief. Appellant was sentenced to an upward durational departure under the dangerous-offender statute; he argues that his sentence is unconstitutional because a judge, not a jury, found the aggravating factors justifying the departure. Because the postconviction court did not abuse its discretion by denying appellant relief, we affirm.

FACTS

In December 1997, appellant Ofiong Sanders was convicted by jury of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (1996). Sanders was sentenced to 180 months in prison, an upward durational departure from the presumptive guidelines sentence of 65 months. The district court based the departure on its determination that Sanders was a career offender under Minn. Stat. § 609.152, subd. 3 (1996).[1] Sanders appealed, and in December 1998, this court affirmed his conviction. State v. Sanders, C9-98-1232 (Minn. App. Dec. 29, 1998), review denied (Minn. Mar. 16, 1999).

In August 2001, Sanders petitioned for postconviction relief, arguing that because he did not have five separate and sequential felony offenses and convictions, he did not meet the definition of career offender described in State v. Huston, 616 N.W.2d 282 (Minn. App. 2000). The state agreed and moved for a sentencing departure based on the alternative theory that Sanders was a dangerous offender under Minn. Stat. § 609.152, subd. 2 (1996), subsequently recodified as Minn. Stat. § 609.1095, subd. 2 (1998). Without a hearing, the district court again sentenced Sanders to 180 months in prison, finding that he was a dangerous offender. This court reversed and remanded because Sanders was resentenced without a hearing. State v. Sanders, 644 N.W.2d 483, 488 (Minn. App. 2002).

In July 2002, after a resentencing hearing, the district court once again sentenced Sanders to 180 months as a dangerous offender. Sanders appealed this sentence, arguing that the state did not prove that he was a dangerous offender. In March 2003, this court affirmed Sanders’s sentence. State v. Sanders, C4-02-1760 (Minn. App. Mar. 18, 2003), review denied (Minn. May 28, 2003).

In August 2004, Sanders filed another petition for postconviction relief, arguing that his sentence violated his constitutional rights because the upward durational departure was based on aggravating factors found by the judge, not a jury. The postconviction court denied Sanders’s petition. This appeal follows.

D E C I S I O N

“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 determination of a legal issue is reviewed de novo. Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).

Sanders argues that his sentence is unconstitutional because a judge, not a jury, found the facts supporting the upward durational departure based on the dangerous-offender statute. He argues that (1) the rules established in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), should apply to his sentence; and (2) he is entitled to benefit from the rule announced in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied, 125 S. Ct. 21 (Aug. 23, 2004).

In Apprendi, the United States Supreme Court held 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.” 530 U.S. at 490, 120 S. Ct. at 2362-63. In Ring, the Supreme Court extended this reasoning to capital cases when the death penalty is authorized only if an aggravating factor is present. 536 U.S. at 603-09, 122 S. Ct. at 2440-43. The Supreme Court also determined in Ring that the Sixth Amendment, as interpreted in Apprendi, requires that such aggravating factors be found by a jury rather than a judge. Id. at 609, 122 S. Ct. at 2443. In Blakely, the Supreme Court concluded that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 124 S. Ct. at 2537. And the Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines. State v. Shattuck, ___ N.W.2d ___, ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005).

Sanders first challenges his sentence based on the rules announced in Apprendi and Ring, arguing that his sentence was greater than the prescribed statutory maximum. But before Blakely, courts looked to the applicable statute, not to the sentencing guidelines, to determine the statutory maximum sentence for an offense. See, e.g., State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001) (deciding that Apprendi was inapplicable to the defendant’s sentence, which was less than half of the statutory maximum sentence of 25 years). Here, the statutory maximum sentence for first-degree burglary was 240 months. Minn. Stat. § 609.582, subd. 1 (1996). Sanders’s sentence is 180 months. Because Sanders’s sentence did not exceed the statutory maximum sentence, he is not entitled to relief under Apprendi or Ring.

Sanders next argues that he is entitled to benefit from the rule announced in Blakely because he was resentenced after Apprendi was decided, and Blakely does not announce a new rule but rather is an extension of Apprendi. Sanders argues that the Apprendi rule, as explained in Blakley,should apply to his sentence. But the Minnesota Supreme Court recently decided that

[b]ecause reasonable jurists . . . disagreed over the import of Apprendi for sentencing guidelines, 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.

State v. Houston, ___ N.W.2d ___, ___, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005). The supreme court therefore held that Blakely is a new rule of constitutional criminal procedure. Id.

A defendant is entitled to benefit from a new rule of federal constitutional criminal procedure if his case is pending on direct review when that new rule is announced. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). “[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. If the defendant’s conviction is already final at the time the new rule is announced, he generally may not benefit from the new rule. Id. at 339-40. But in some circumstances, Blakely may apply retroactively to a defendant’s sentence when his sentence was not final when Blakely was released. State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005).

Here, Sanders was convicted of first-degree burglary in December 1997 and he was sentenced in April 1998. This court affirmed Sanders’s conviction in December 1998, and the Minnesota Supreme Court denied Sanders’s petition for review on March 16, 1999. State v. Sanders, C9-98-1232 (Minn. App. Dec. 29, 1998), review denied (Minn. Mar. 16, 1999). Sanders did not petition the United States Supreme Court for a writ of certiorari. A party has 90 days after the entry of judgment by a state court of last resort to file a petition for writ of certiorari with the Supreme Court. Sup. Ct. R. 13.1. Therefore, Sanders’s conviction became final on June 14, 1999, 90 days after the Minnesota Supreme Court denied review. But Sanders was resentenced in 2002, and the new sentence became final in 2003. See State v. Sanders, C4-02-1760 (Minn. App. Mar. 18, 2003), review denied (Minn. May 28, 2003). Sanders’s conviction and sentence were both final when Blakely was decided in 2004; therefore, his case was not pending on direct review at that time, and, absent an exception, he is not entitled to benefit from the new rule announced in Blakely.

But when a new rule is a “watershed rule of criminal procedure,” a defendant may benefit from the rule even if his case is final when the rule is announced. State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). Sanders argues that if Blakely announced a new rule, it is a watershed rule of criminal procedure, thereby entitling him to retroactive relief.

A watershed rule of criminal procedure is a rule that “alters the understanding of the basic procedures essential to the fairness of a criminal conviction.” Petschl, 692 N.W.2d at 471. The Minnesota Supreme Court has determined that Blakely “does not impact the accuracy of an underlying determination of guilt or innocence” and has concluded that Blakely is not a watershed rule of criminal procedure. Houston, ___ N.W.2d at ___, 2005 WL 1981578, at *4-5.

Because Blakely announced a new rule that is not a watershed rule of criminal procedure and because Sanders’s conviction and sentence both were final when Blakely was decided, he is not entitled to benefit from the rule announced in Blakely. Therefore, we conclude that the postconviction court did not abuse its discretion by denying Sanders postconviction relief.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Section 609.152 (1996) is now codified as section 609.1095 (2004).