STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2337

David William Schmitz, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 11, 2005

Affirmed

Minge, Judge

Pope County District Court

File No. K2-95-248

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

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

Belvin Doebbert, Pope County Attorney, P.O. Box 288, Glenwood, MN 55921 (for respondent)

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

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

MINGE, Judge

David Schmitz appeals from postconviction orders rejecting his challenge to his 1996 sentence for first-degree assault and pattern of harassment and his claim of ineffective assistance of appellate counsel. Schmitz argues that the upward durational departure violated his right to a jury trial under Blakely and that the district court erred by concluding that Blakely does not apply retroactively. Schmitz also argues that the postconviction court erred by concluding that his claim of ineffective assistance of appellate counsel was procedurally barred because it was known but not raised in his previous appeal. Because we conclude that the district court did not err or abuse its discretion, we affirm.

FACTS

In January 1996, David Schmitz was convicted of first-degree attempted domestic-abuse murder, first-degree assault, and pattern harassment. The district court sentenced Schmitz to an upward durational departure from the presumptive sentence. This court later vacated Schmitz’s conviction of attempted domestic-abuse murder. State v. Schmitz, 559 N.W.2d 701, 703-04 (Minn. App. 1997) (Schmitz I), review denied (Minn. Apr. 15, 1997).

More than three and one-half years later, Schmitz filed a pro se motion to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, claiming that the court’s upward durational departure on his sentence for first-degree assault was based on aggravating factors that were the basis for his (now reversed) conviction of attempted murder. Schmitz also argued that, because this court vacated his conviction of attempted murder, it should also vacate his conviction of first-degree assault. The district court dismissed Schmitz’s motion without a hearing, reasoning that his claims were without merit.

Schmitz appealed. This court affirmed the district court’s order, holding that each of the issues Schmitz raised lacked merit and could have been raised on his first appeal. State v. Schmitz, No. C4-01-47, 2001 WL 969122, at *2 (Minn. App. Aug. 28, 2001) (Schmitz II), review denied (Minn. Nov. 13, 2001).

Almost three years later, Schmitz filed the present postconviction petition, seeking a reduction of his sentence on Blakely grounds and alleging an ineffective-assistance-of-appellate-counsel claim. Schmitz argued that his sentence violated his right to a jury trial under Blakely because it was based on judicial findings of aggravating factors. Schmitz also argued that he received ineffective assistance from his appellate counsel because counsel failed to challenge the sentencing court’s upward durational departures.

In two separate orders, the district court denied Schmitz’s petition, reasoning that Blakely does not apply retroactively and that his ineffective-assistance claim was procedurally barred because it was not raised in his second appeal. This appeal from the denial of postconviction relief follows.

D E C I S I O N

This court reviews postconviction decisions for abuse of discretion. State v. Doppler, 590 N.W.2d 627, 632-33 (Minn. 1999). The scope of this court’s review is limited to determining whether the record contains sufficient evidence to sustain the postconviction court’s findings. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998).

Schmitz first argues that the district court erred by concluding that Blakely does not apply retroactively. The Minnesota Supreme Court has held that Blakely is not subject to retroactive application on collateral review. See State v. Houston, __ N.W.2d __, __, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005). Schmitz’s conviction was final long before Blakely was released, and he cannot raise a Blakely challenge on collateral review.

Schmitz contends that he must appeal from the postconviction court’s denial of his Blakely claim to preserve the claim for further review. According to Schmitz, Minnesota appellate courts “do not have the last word on the retroactive application of Blakely,” and his failure to raise the issue now would preclude him from raising the issue if, in the future, the Supreme Court determines that Blakely applies retroactively. Schmitz may raise the issue in this appeal for tactical reasons, but, as already stated, his claim is without merit under current Minnesota law. See id.

II.

Schmitz next argues that he is entitled to a sentence reduction because he received ineffective assistance of appellate counsel on his direct appeal. Schmitz claims that counsel failed to challenge his sentence on the ground that the upward durational departures on his assault and attempted murder convictions are based on essentially the same aggravating factors.

In Schmitz’s previous appeal this court rejected the very legal argument Schmitz alleges his attorney should have presented. See Schmitz II, 2001 WL 969122, at *1-*2(concluding that Schmitz’s claim, including claim that district court abused its discretion by failing to identify separate aggravating factors to support an upward departure, “lack[ed] merit”). Because the claim was rejected, Schmitz cannot establish that counsel’s representation fell below an objective standard of reasonableness. See State v. Martin, 695 N.W.2d 578, 587 (Minn. 2005) (stating that to demonstrate ineffective assistance of counsel, an appellant must show that representation fell below objective standard of reasonableness). We conclude that Schmitz’s assertion of ineffective assistance of counsel lacks merit.

Affirmed.