A05-252

Darnell Cage, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 13, 2005

Affirmed

Worke, Judge

Olmsted County District Court

File No. K5-03-1198

Darnell Cage, #206955, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

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

Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant Olmsted County Attorney, 151 4th Street SE, Rochester, MN 55904 (for respondent)

Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from a district court order denying appellant Darnell Cage’s second petition for postconviction relief, appellant argues that the district court’s imposition of a conditional-release term violates his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that because the conditional-release term was not mentioned during his plea agreement, he has a right to withdraw his plea of guilty. Because the district court did not abuse its discretion in denying appellant’s petition for postconviction relief without a hearing, we affirm.

FACTS

Appellant was charged with one count of criminal-sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(c) (2002). Based on a plea agreement, appellant entered a plea of guilty to an amended count of criminal-sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345, subd. 1(c) (2002). At the plea hearing, appellant admitted to having nonconsensual sexual contact with an adult woman. While answering questions posed by his attorney, appellant said that he understood that there was no guarantee of what his sentence would be if the district court accepted his plea of guilty. Appellant stated that he understood that the guidelines presumptive sentence was 45 months in prison, and a five-year conditional-release period, which would be imposed if he was sentenced to prison. The district court accepted appellant’s plea, and on January 12, 2004, sentenced him to 45 months in prison, and imposed the mandatory five-year conditional-release term pursuant to Minn. Stat. § 609.109, subd. 7(a) (2002).

On July 12, 2004, appellant filed a petition for postconviction relief arguing that his conviction should be set aside or his plea of guilty withdrawn because (1) he was housed in a jail outside Olmsted County for a portion of his pretrial incarceration, (2) his plea was involuntary and not knowingly made, (3) a criminal conspiracy affected his conviction, and (4) his sentence subjected him to involuntary servitude. The district court denied appellant’s petition.

On January 5, 2005, appellant filed a second petition for postconviction relief arguing that the imposition of the conditional-release term violated his right to a jury trial under Blakely and that he has a right to withdraw his guilty plea because the conditional-release term was not mentioned during his plea agreement. The district court denied appellant’s second petition without a hearing. This appeal follows.

D E C I S I O N

Appellant argues that the imposition of the conditional-release term violates his right to a jury trial under Blakely. “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.” Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts. Doan v. State, 306 Minn. 89, 91-92, 234 N.W.2d 824, 826 (1975). The district court may summarily deny a second or successive petition when similar relief is requested on behalf of the same petitioner, Minn. Stat. § 590.04, subd. 3 (2004), or when the petitioner failed to raise an issue in the initial petition. Dunn v. State, 578 N.W.2d 351, 352 (Minn. 1998) (citing Black v. State, 560 N.W.2d 83, 85-86 (Minn. 1997)).

Appellant sought the same relief in his second petition as he did in his first petition—that his conviction be set aside or his plea of guilty withdrawn. Appellant filed his first petition for postconviction relief in July 2004, after the supreme court filed its decision in Blakely in June 2004. Thus, the issue of the right to a jury trial under Blakely could have been raised in appellant’s first petition. As such, the district court did not abuse its discretion in dismissing appellant’s second petition without a hearing.

We note that appellant’s Blakely argument also fails on its merits. First, Blakely is not subject to retroactive application on postconviction review. State v. Houston, ___ N.W.2d ___, ___, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005). Appellant was sentenced in January 2004, and when he did not institute a direct appeal, his case became final in April 2004. See Minn. R. Crim. P. 28.02, subd. 4(3) (mandating that criminal defendant appeal final judgment within 90 days after entry); see also O’Meara v. State, 679 N.W.2d, 334, 339 (Minn. 2004) (case becomes final when judgment of conviction is rendered and availability of appeal exhausted). Blakely, therefore, is not applicable to appellant’s sentence. Second, under Blakely, a sentence that exceeds the statutory maximum for reasons based on judicially determined facts violates a defendant’s Sixth Amendment right to a jury trial. Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004). A conditional-release term imposed under Minn. Stat. § 609.109, subd. 7 (2002), however, is part of the statutorily mandated maximum sentence and “[does] not require any additional findings of fact to be made by the district court.” State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003). Accordingly, the imposition of the five-year conditional-release term does not violate the holding in Blakely.

Appellant further argues that he should be allowed to withdraw his plea of guilty because the imposed conditional-release period was not mentioned during his plea agreement. What the parties agreed to in a plea agreement is an issue of fact to be resolved by the district court; the interpretation or enforcement of the plea agreement is an issue of law, which we review de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

The issue of an intelligent guilty plea was raised in appellant’s first postconviction petition. As such, the district court did not abuse its discretion in summarily denying the second petition for similar relief. See Minn. Stat. § 590.04, subd. 3 (district court may summarily deny a second petition for similar relief on behalf of the same petitioner). We further recognize that the issue also fails on its merits.

The plea transcript shows that appellant’s counsel asked appellant if he understood that “[u]nder the guidelines you’re looking at a presumptive prison sentence of 45 months[?]” Counsel further asked if appellant understood that “because this is a sex offense Minnesota would add a five year conditional release term on to that sentence?” Finally, counsel asked if appellant understood that “there is no guarantee” regarding what sentence appellant would receive. Appellant replied, “Yes,” to each question. Contrary to appellant’s contention, he was made aware of the conditional-release term during the plea agreement. Therefore, he is not entitled to withdraw his plea or have his sentence modified. See State v. Rhodes, 675 N.W.2d 323, 327 (Minn. 2004) (affirming the denial of a motion to withdraw plea or have sentence modified when record demonstrated that petitioner was made aware of the applicable conditional-release term prior to and at the sentencing hearing).

Affirmed.