STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2324

Curtis Anderson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 20, 2005

Affirmed

Minge, Judge

Sherburne County District Court

File No. K9-00-1767

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

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

Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges the district court’s denial of his post-conviction petition to modify his sentence in light of the decision announced in Blakely v. Washington, 124 S. Ct. 2531 (2004). Because Blakely does not apply retroactively to cases that were final before it was decided, we affirm.

FACTS

In September 2000, appellant Curtis Wayne Anderson was charged with theft by check, in violation of Minn. Stat. § 609.52, subds. 2(3)(i), 3(2) (2000), and issuance of a dishonored check, in violation of Minn. Stat. § 609.535, subds. 2, 2a(a)(1) (2000). The charges arose out of a $9,602 check written by appellant for a camper from an account with insufficient funds. On May 2, 2002, appellant pleaded guilty to felony issuance of a dishonored check. The agreement with the state was that appellant would receive a stayed presumptive guidelines sentence of 19 months. The district court reserved acceptance of the plea until the presentence investigation was completed and the matter was returned for sentencing.

At appellant’s sentencing hearing, the district court stated that it would not be willing to accept the 19-month plea agreement, but would be willing to accept the plea if appellant agreed to a double durational departure of a 38-month stayed sentence. Appellant agreed to the revised agreement. The district court noted that appellant had committed more than five prior felonies that were a part of a pattern of theft-related offenses, allowing the court to sentence appellant to the maximum sentence of 60 months under the career-offender statute, Minn. Stat. § 609.1095, sub. 4 (2000). On June 26, 2002, judgment was entered and appellant was sentenced to 38 months with the sentence stayed for five years. Appellant did not appeal this sentence.

At a probation violation hearing on December 18, 2003, appellant requested that the district court execute his sentence. Appellant admitted that he had not kept current with restitution and had failed to remain law-abiding by committing another offense. The district court revoked the stay of execution of the 38-month sentence.

In a postconviction petition filed September 17, 2004, appellant requested that his sentence be reduced to the presumptive sentence of 19 months because his Sixth Amendment rights, as articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004), had been violated. The district court denied appellant’s petition, concluding that appellant’s sentence was final before Blakely was decided and that Blakely does not apply retroactively. This appeal follows.

D E C I S I O N

The issue in this case is whether appellant is entitled to have his sentence revised based on the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). In the appeal of postconviction proceedings, this court reviews questions of law de novo. State v. Blom, 682 N.W.2d 578, 623-24 (Minn. 2004).

In Blakely, the United States Supreme Court concluded that if facts must be found to increase a sentence, the Sixth Amendment guarantees that the accused has the right to have those facts found by a jury rather than a judge. 124 S. Ct. at 2536-37. The Court stated that the facts in that case were “neither admitted by petitioner nor found by a jury.” Id. Applying Blakely to the Minnesota Sentencing Guidelines in State v. Shattuck, the Minnesota Supreme Court held that the accused has the right to have a jury make the findings that support an upward durational departure from the presumptive sentence. __ N.W.2d __, __, 2005 WL 1981659, at *9 (Minn. Aug. 18, 2005).

The career-offender sentencing statute, which was the basis of appellant’s upward durational departure in this case, allows for a sentence departure if the judge finds that “the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” Minn. Stat. § 609.1095, subd. 4 (2000). This court has held that Blakely applies to this statute because a jury, not a judge, must make the finding that the convictions formed “a pattern of criminal conduct.” State v. Mitchell, 687 N.W.2d 393, 399-400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).

Appellant argues that even though his conviction was final before Blakely was decided, Blakely should be applied retroactively to invalidate his sentence. If a new rule of federal constitutional criminal procedure is announced, the new rule will not be applied retroactively to a conviction that is final unless it fits into certain exceptions. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). 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) (emphasis omitted). Appellant contends that Blakely did not announce a new rule, but merely clarified the rule announced by Apprendi v. New Jersey, which the Supreme Court decided before appellant’s conviction was final. 530 U.S. 466, 120 S. Ct. 2348 (2000). The Minnesota Supreme Court has held that Blakely created a new rule and will not be applied retroactively on collateral review to convictions that were final before Blakely was decided. State v. Houston, __ N.W.2d __, __, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005).

Judgment was entered on appellant’s sentence in June 2002, and he did not appeal within the 90 days allowed by law. See Minn. R. Crim. P. 28.02, subd. 4(3). Appellant’s conviction was final by October 2002, 90 days after he was sentenced, even though his stay of execution was later revoked in December 2003. See State v. Losh, 694 N.W.2d 98, 101 (Minn. App. 2005) (holding that a judgment is final after the period for appeal of the sentence elapses, not from the time probation is revoked), review granted (Minn. June 28, 2005). Blakely was decided on June 24, 2004. 124 S. Ct. at 2531. Because appellant’s conviction was final before Blakely was decided, the rule announced in Blakely does not apply to appellant’s sentence.

Affirmed.