This opinion will be unpublished and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

A04-2373

 

Ronald A. Butler, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­­­October 11, 2005

Affirmed

Dietzen, Judge

 

Ramsey County District Court

File No. K8-01-2430

 

Ronald A. Butler, OID #207904, MCF – Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014 (appellant pro se)

 

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 Boulevard, Suite 315, St. Paul, MN 55102 (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 denial of his petition for postconviction relief arguing that the addition of the 10-year conditional-release term to the presumptive sentence was an upward departure that violated his constitutional rights under Apprendi and Blakely, and that the conditional-release term violated the plea agreement.  Because appellant’s sentence did not violate his rights under Apprendi and Blakely, and appellant is procedurally barred from contesting his plea agreement, we affirm.

FACTS

 

On July 10, 2001, appellant Ronald A. Butler, was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2000), for sexually assaulting his girlfriend’s 12-year-old daughter.  Pursuant to a plea agreement, appellant pleaded guilty to the crime charged, and both parties agreed to the presumptive sentence of 144 months.  Prior to sentencing, appellant was furnished a copy of the presentence investigation report which recommended the presumptive sentence of 144 months, and because of appellant’s prior conviction of fourth-degree criminal sexual conduct, it also recommended a 10-year conditional-release term as required by Minn. Stat. § 609.109, subd. 7(a).  At the sentencing hearing, the district court indicated its intent to impose the 144-month presumptive sentence; and that it would impose a 10-year required conditional-release term.  Appellant did not object to conditional release.  Appellant was then sentenced to the presumptive sentence and the 10-year conditional-release term. 

Following sentencing, appellant filed notice of appeal and, on September 17, 2002, this court affirmed the conviction.  Butler v. State, No. C9-02-121 (Minn. App. Sept. 17, 2002).  Appellant did not petition the supreme court for review. 

In April 2003, appellant petitioned for postconviction relief, arguing ineffective assistance of counsel, insufficiency of the evidence, and that the conditional-release statute was not effective at the time of his prior conviction and, therefore, was not applicable.  The district court denied the petition, and in April 2004, we affirmed.  Butler v. State, A03-1048 (Minn. App. Apr. 12, 2004) (order opinion). 

In August 2004, appellant brought a second petition for postconviction relief, arguing that the 10-year conditional term violates his constitutional rights under Apprendi and Blakely because it constitutes an unlawful sentencing enhancement and that it violated the plea agreement.  The district court denied the petition for reduction of sentence and other postconviction relief.  The district court also denied appellant’s subsequent motion for reconsideration of this matter.  This appeal follows.

D E C I S I O N

 

I.

 

A petition for postconviction relief is a procedural mechanism to obtain collateral review of a criminal conviction.  See Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  We review a postconviction court’s decision to grant or deny relief under an abuse-of-discretion standard.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  Legal questions, however, are reviewed de novo.  See State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  “The determination of whether a decision applies retroactively or nonretroactively is a legal question that we review de novo.”  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).

Appellant contends that the imposition of conditional-release terms for sex offenders under Minn. Stat. § 609.109, subd. 7 violates the principles in 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).  Appellant asserts that a period of conditional release is the equivalent of a sentence enhancement and, thus, must be submitted to a jury and proven beyond a reasonable doubt.  Respondent counters that Blakely does not apply retroactively to appellant’s sentence.

In Apprendi, the United States Supreme Court held that any fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  530 U.S. at 490.  In Blakely, the Supreme Court concluded 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.”  542 U.S. at ___, 124 S. Ct. at 2537 (emphasis omitted).  And 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).

Appellant argues that he is entitled to benefit from the rule announced in Blakely.  A defendant is entitled to benefit from a new rule of federal constitutional criminal procedure if his case is pending on direct review when the new rule is announced.  O’Meara, 679 N.W.2d at 339-40.  “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”  Id. at 336.  A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for postconviction relief) generally may not benefit from the new rule.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  An exception exists, however, when the new rule is a “watershed rule of criminal procedure.”  Petschl, 692 N.W.2d at 471.  But the Minnesota Supreme Court determined that Blakely is not a watershed rule of criminal procedure and therefore is not subject to retroactive application on collateral review.  Houston, 702 N.W.2d at 273.

The issue of the retroactive effect of Blakely has been the subject of recent decisions of this court and the Minnesota Supreme Court.  The supreme court decided that Blakely is a new rule of constitutional criminal procedure and therefore affirmed this court’s decision that Blakely is not retroactive past its effective date of June 24, 2004.  Houston, 702 N.W.2d at 274.  Here, appellant pleaded guilty to first-degree criminal-sexual conduct on September 5, 2001.  He was sentenced on October 29, 2001.  This court affirmed appellant’s conviction on September 17, 2002, and appellant did not petition the supreme court for review within the 30 days provided by Minn. R. Crim. Proc. 29.01, subd. 1 and Minn. R. Civ. App. P. 117, subd. 1.  Therefore, appellant’s conviction became final in October 2002, long before Blakely’s effective date of June 24, 2004.

                                                            II.

Appellant’s second contention is that the conditional release imposed violated the plea agreement.  Respondent argues that appellant is procedurally barred from raising this issue under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because appellant failed to include this claim in his direct appeal.  We agree.

A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but this court makes an independent determination of the law as it applies to the facts.  Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975).  What the parties agreed to in a plea agreement is an issue of fact to be resolved by the district court; the plea agreement’s interpretation or enforcement is an issue of law, which we review de novo.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

The long-standing Knaffla rule provides: “where a direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  This rule applies if the defendant knew or should have known about the issue at the time of appeal.  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005). The only recognized exceptions to this rule involve claims that are so novel that their legal basis was not reasonably available at the time the direct appeal was taken, or where the petitioner did not deliberately and inexcusably fail to raise the claim on direct appeal and fairness requires its consideration.  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (quotation omitted).

Here, appellant bases his present claim on a guilty plea that he entered on September 5, 2001 and for which he was sentenced on October 29, 2001.  Since those dates, appellant has appealed to this court on two other occasions but has never raised a claim that the imposition of the conditional-release term violated the plea agreement.  The alleged violation of the plea agreement was clearly known at the time of direct appeal.  Further, a breach of a plea agreement is not a novel claim, and appellant did not make any appeal to “fairness” in his brief.

But even if appellant was not procedurally barred, this claim would fail as a matter of law.  Appellant argues lack of notice of the imposition of the conditional-release term prior to entering his guilty plea.  In State v. Rhodes, the supreme court determined that the appellant had notice of the conditional-release term for sex offenders because the statutory requirement of conditional release was added in 1992 (many years before appellant entered his plea); case law existed that recognized the mandatory nature of conditional release; the presentence investigation referenced conditional release; and the state requested and the court imposed conditional release at the sentencing hearing. 675 N.W.2d 323, 327 (Minn. 2004).

Here, appellant was also provided sufficient notice of the imposition of conditional release.  Appellant did not enter his guilty plea until 2001, many years after the publication of the relevant statute and case law.  His presentence investigation mentioned a 10-year conditional-release term and the district court explained its intention to place appellant on conditional release at the sentencing hearing.  Neither appellant nor his counsel objected or raised concerns when given a final opportunity to speak.

Appellant relies on the cases of State v. Wukawitz, 662 N.W.2d 517 (Minn. 2003); State v. Calmes, 632 N.W.2d 641 (Minn. 2001), State v. Schwartz, 628 N.W.2d 134 (Minn. 2001), Brown, 606 N.W.2d 670, State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000), and State v. Garcia, 582 N.W.2d 879 (Minn. 1998) to support the argument that he was provided inadequate notice of the imposition of the conditional-release term when entering into the plea agreement.  But these cases are easily distinguishable because each
involved either the failure to mention the conditional-release term at the sentencing hearing or the failure to include the term in the initial sentence.

Affirmed.