This opinion will be unpublished and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

A04-2488

 

Pedro Charles Flores,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 20, 2005

Affirmed
Klaphake, Judge

 

Cottonwood County District Court

File No. K4-98-167

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414; and

 

Mary M. McMahon, Special Assistant Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724 (for appellant)

 

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

 

L. Douglas Storey, Cottonwood County Attorney, Nicholas A. Anderson, Assistant County Attorney, 1044 Third Avenue, Windom, MN  56101 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Pedro Charles Flores challenges the postconviction court’s denial of his request for a reduction in his 30-year sentence for first-degree criminal sexual conduct and vacation of the mandatory 10-year conditional release term under to Minn. Stat. § 609.109, subd. 7 (2000).  Appellant argues that his sentence and the conditional release term violated the principles set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). 

            Because Blakely does not apply retroactively to matters that were final before its issuance, the district court did not abuse its discretion by denying appellant’s postconviction petition.  We therefore 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.  Pederson v. State, 649 N.W. 2d 161, 163 (Minn. 2002).  The reviewing court will not reverse the postconviction court’s decision absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The determination of whether a decision applies retroactively is a question of law reviewed de novo.  State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

            In Petschl, we recognized that Blakely announced a new constitutional rule, because it was not dictated by the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Petschl, 692 N.W.2d at 471; see also State v. Houston, 702 N.W.2d 268 (Minn. 2005).  Applying the principles set forth in Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76 (1989), and O’Meara v. State, 679 N.W.2d 334, 339-40 (Minn. 2004), the supreme court concluded that Blakely, as a new rule of federal constitutional criminal procedure, applied retroactively to matters still pending on direct review, but not to those that were final before Blakely was issued.  Houston, 704 N.W.2d at 272.  A conviction is final when a defendant’s direct appeal rights are exhausted and the time for filing a petition for certiorari has passed or a petition for certiorari has been denied by the Supreme Court.  O’Meara, 679 N.W.2d at 336.  Here, appellant’s direct appeal rights were exhausted when the Minnesota Supreme Court denied his petition for review of our decision confirming his conviction on February 26, 2003, and the time for filing a petition for certiorari passed.  Appellant’s conviction thus was final well before the Blakely decision was issued in June 2004.

            At the time his direct appeal rights were exhausted, appellant had been sentenced in accordance with the principles of Apprendi to no more than the statutory maximum of 30 years.  See, e.g., State v. Grossman, 636 N.W.2d 545, 549 (Minn. 2001) (limiting sentencing departures after Apprendi to no more than the maximum set forth in statute).  Because appellant is not entitled to retroactive application of Blakely, the district court did not abuse its discretion by denying his petition for postconviction relief from his sentence.

            Appellant also challenges the district court’s imposition of the mandatory conditional release term under Minn. Stat. § 609.109, subd. 7 (2000), arguing that it increases his sentence beyond the statutory maximum based on judicially found facts.  In State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003), also a post-Apprendi but pre-Blakely case, the supreme court concluded that because the conditional release term of Minn. Stat. § 609.109, subd. 7, is authorized on the basis of the jury verdict alone and does not require any additional factfinding, it is permissible under Apprendi.  We therefore reject appellant’s challenge to the imposition of a conditional release term. 

            Affirmed.