This opinion will be unpublished and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

A04-2428

 

Roberto Orta-Castillo,

Petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 6, 2005

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K0-92-1098

 

Roberto Orta-Castillo, Minnesota Correctional Facility, Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN  55082-1117 (pro se appellant)

 

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

 

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

TOUSSAINT, Chief Judge

            In July 1992, appellant was convicted of second-degree felony murder and kidnapping.  He was sentenced to 480 months in prison on the murder conviction, an upward departure from the Minnesota Sentencing Guidelines presumptive sentence, and 292 months in prison on the kidnapping conviction, consecutive to the murder sentence.  In 1993, appellant’s kidnapping conviction and sentence were vacated by this court because it was the predicate offense to the murder sentence, and the supreme court denied review.  State v. Castillo, No. C6-92-2230, 1993 WL 355903 (Minn. App. Sept. 14, 1993), review denied (Minn. Nov. 16, 1993).  Appellant now argues that the imposition of an upward departure on the murder conviction was not justified based on the facts and that it was a violation of his Sixth Amendment right to a jury trial 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).  Because under Minnesota law, the rule from Blakely does not apply retroactively to cases on collateral review, we affirm. 

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) (citation omitted).  This court will not disturb the decision 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 is seeking to relitigate the underlying basis for the upward durational departure; however, the propriety of his sentence was fully litigated in appellant’s direct appeal.  Castillo, 1993 WL 355903.  Under Minnesota law, appellant may not litigate issues that have previously been decided by an appellate court in the same case.  Minn. Stat. § 590.03, subd. 2 (2004).

Appellant also argues that the upward durational departure is a violation of his Sixth Amendment right to a jury trial under Apprendi and Blakely.  Appellant pleaded guilty and was sentenced before Apprendi and Blakely were decided.  We review de novo whether or not a decision applies retroactively.  O’Meara v. State, 679 N.W.2d 334, 338 (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).  If a federal decision constitutes a new rule, the new rule will not be applied retroactively to a conviction that is final unless it fits into certain exceptions.  O’Meara, 679 N.W.2d at 340.  Those exceptions are “(1) new rules that ‘place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense’; and (2) ‘new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding.’”  Id. at n.3 (citing Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S. Ct. 2822 (1990) (citations omitted)). 

The United States Supreme Court held in Apprendi 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.”  Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.  In Blakely, the Court extended the rule in Apprendi to sentencing guideline regimes, holding 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.”  Blakely, 542 U.S. at ____, 124 S. Ct. at 2537 (emphasis omitted).  The Minnesota Supreme Court has held that Apprendi and Blakely apply to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005).  Further, the supreme court held that while the Blakely decision created a new rule, it is not a watershed 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).  Because under Minnesota law, the rule from Blakely does not apply retroactively to cases on collateral review, the imposition of an upward departure in this case was not a violation of appellant’s Sixth Amendment right to a jury trial.

Affirmed.