This opinion will be unpublished and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

A04-2267

 

Charles Patrick Jones, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 4, 2005

Affirmed

Dietzen, Judge

 

Stearns County District Court

File No. K4-00-1368

 

Mary M. McMahon, McMahon & Associates, Suite 140, 2499 Rice Street, Roseville MN 55113 (for appellant)

 

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

 

Janelle Prokopec Kendall, Stearns County Attorney, Room 448 Administrative Center, 705 Courthouse Square, St. Cloud, MN 56303 (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

 

DIETZEN, Judge

 

Appellant challenges the district court order denying his petition for postconviction relief, arguing that the upward departure from his presumptive sentence violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because appellant’s conviction was final at the time Blakely was decided, Blakely does not apply to appellant’s sentence, and we therefore affirm.

FACTS

 

Appellant, Charles Patrick Jones, a.k.a. “Chico,” was charged in March 2000 with criminal racketeering under Minn. Stat. §§ 609.903, subd. 1(1), 609.904, subds. 1, 2 (2000).  Appellant pleaded guilty to the charge as a level-eight offense.  Appellant’s presumptive sentence under the Minnesota Sentencing Guidelines for this offense with no criminal history points is 86 months.  See Minn. Sent. Guidelines II.C.  The plea agreement called for a sentencing range between 86 and 98 months.  Consistent with the plea agreement, the district court imposed a sentence of 98 months which was an upward sentencing departure.  Appellant filed a notice of appeal, but that appeal was dismissed by stipulation in November 2001.

            In August 2004, appellant filed a 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 district court denied the petition for postconviction relief on the grounds that appellant’s conviction and sentence were final by the time Blakely was decided.  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).

            Appellant argues that his sentence is unconstitutional because a judge, not a jury, found the facts supporting the upward durational departure.  He argues that he is entitled to benefit from the rule announced in Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004), because the ruling merely clarified the substantive rule, announced before his sentence was imposed, in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Thus, he asserts that his sentence must be reduced from 98 months to the presumptive sentence of 86 months.

            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.”  Id. at 490, 120 S. Ct. at 2362-63.  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 [a judge] may impose without any additional findings.”  524 U.S. ___, 124 S. Ct. at 2537.  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).

Jones argues that he is entitled to benefit from the rule announced in Blakely because he was sentenced after Apprendi was decided, and Blakely does not announce a new rule but rather is an extension of Apprendi.  This issue was recently addressed by the Minnesota Supreme Court in State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  In Houston, the Minnesota Supreme Court was presented with the issue of whether the rule in Blakely applies retroactively to sentences issued after Apprendi but before Blakely was released.  Id.  The court held that Blakely was a new rule that was not dictated by the holding of Apprendi.  Id. at 272.  The court also held that Blakely did not announce a “watershed” new rule of constitutional criminal procedure and thus has no retroactive effect to alter final sentences challenged on collateral review.  Id. at 273.  The court reasoned that “[t]o be a watershed rule, the new rule must be one without which ‘the likelihood of an accurate conviction is seriously diminished.’”  Id.(citation omitted).  The court further stated that “Blakely does not impact the accuracy of an underlying determination of guilt or innocence.  Instead, it modifies the manner in which certain factors—those factors justifying upward durational departures . . . must be treated.”  Id. The supreme court therefore held that Blakely is a new rule of constitutional criminal procedure, but not a watershed rule.  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 final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.” Id. (quotation omitted).  A defendant whose conviction is already final at the time the new rule is announced generally may not benefit from the new rule.  Id. at 339–40.  In some circumstances, Blakely may apply retroactively to a defendant’s sentence when the sentence was not final when Blakely was released.  State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005).

Here, Jones entered his guilty plea for racketeering in January 2001 and he was sentenced in June 2001.  Jones appealed his sentence in September 2001, but his appeal was dismissed by stipulation in November 2001.  Therefore, appellant’s conviction and sentence became final when his direct appeal was dismissed by stipulation on November 14, 2001.  See Hutchinson v. State, 679 N.W.2d 160, 162 (Minn. 2004) (holding that an appeal suspends a judgment but dismissal of an appeal makes the judgment final).  Jones’s guilty plea and sentence were both final before Blakely was decided in 2004; therefore, his case was not pending on direct review at that time.  And because Blakely did not announce a “watershed rule of criminal procedure,” Jones is not entitled to retroactive relief.  Houston, 702 N.W.2d at 273.

In light of the holding in Houston, and because appellant’s sentence was already final before Blakely was decided, Blakely provides no legal basis upon which appellant can successfully challenge his sentence.  Therefore, the district court did not abuse its discretion in denying Jones postconviction relief.

Affirmed.