STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2475

Gary Raymond Tomberlin, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 11, 2005

Affirmed

Toussaint, Chief Judge

Anoka County District Court

K3-00-2616

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

Benjamin J. Butler, Assistant State Public Defender, State Public Defender’s Office, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

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

TOUSSAINT, Chief Judge

Appellant Gary Raymond Tomberlin challenges the denial of his July 14, 2004 petition for postconviction relief. On January 18, 2001, appellant was sentenced to 120 months in prison for convictions of two counts of criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1 (2000). The sentence was an upward durational departure from the sentencing guidelines based on judicial findings of aggravating factors. Appellant’s sentence was affirmed on direct appeal in February 2002. State v. Tomberlin, 2002 WL 171992, No. C0-01-689 (Minn. App. Feb. 5, 2002), review denied (Minn. Mar. 19, 2002). The sole issue on direct appeal was the sufficiency of the evidence; appellant did not challenge his sentence. Appellant now argues that the upward durational departure from the presumptive guidelines sentence based on judicial findings of aggravating factors violated his right to a jury trial under Apprendi and Blakely. Because Blakely does not apply retroactively to appellant’s conviction and sentence, we affirm.

D E C I S I O N

Petitions for postconviction relief are collateral attacks on judgments which carry a presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). This court will not disturb the decision of a postconviction court absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). The scope of review is limited to determining whether there is sufficient evidence in the record to support the findings of the postconviction court. Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).

Appellant argues that the district court erred when it sentenced him to 120 months in prison, an upward durational departure from the presumptive sentence, because the Sixth and Fourteenth amendments to the federal constitution, as interpreted 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),require that any fact used for an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt. The Minnesota Supreme Court has held that the rules from Apprendi and Blakely apply to upward durational departures under the Minnesota Sentencing Guidelines. State v. Shattuck, ___ N.W.2d ___, 2005 WL 1981659, at *8 (Minn. Aug. 18, 2005).

Appellant argues that he should benefit from the rule announced in Apprendi 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” because it was decided before his convictions and sentence became final in 2002. Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Under Minn. Stat. § 609.343, subd. 2 (2000), the penalty for a conviction under subdivision 1 is imprisonment for not more than 25 years. Appellant was sentenced to 120 months. The sentence imposed here was within the “statutory maximum,” as the term was used in Apprendi and construed in cases applying Apprendi. See State v. Grossman, 636 N.W.2d 545, 549 (Minn. 2001) (“An individual convicted under Minn. Stat. § 609.342, subd. 2 [(2000)] ‘may be sentenced to imprisonment for not more than 30 years.’ Thus, the jury’s guilty verdict exposed Grossman to, at most, a 30-year prison term.”).

Appellant argues that he is entitled to the retroactive application of the rule announced in Blakely, which issued after his sentence became final. The rule from Blakely altered the understanding of “statutory maximum” for Apprendi purposes by stating that “the maximum sentence the judge may impose based solely upon those facts either reflected in the jury verdict or admitted by the defendant . . . [is] the presumptive sentence.” State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005). The Minnesota Supreme Court decided in Houston, that “Blakely is a new rule of constitutional criminal procedure unavailable for collateral use.” Id. at 273. Thus, the rule from Blakely does not apply retroactively to appellant’s case.

Appellant, however, argues that Blakely does apply retroactively to his case because it is a new watershed rule of criminal procedure. There are two exceptions to the general rule that new rules of law do not apply to convictions that are final: (1) if the new rule “place[s] an entire category of primary conduct beyond the reach of the criminal law, or . . . prohibit[s] imposition of a certain type of punishment for a class of defendants because of their status or offense”; and (2) “new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding.” O’Meara, 679 N.W.2d at 340 n. 3 (quoting Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S. Ct. 2822 (1990) (citations omitted)). The Minnesota Supreme Court held that Blakely created a new rule, but not a watershed rule that is applied retroactively on collateral review to convictions that were final before Blakely was decided. Houston, 702 N.W.2d at 273. Thus, appellant is not entitled to retroactive application of the rule from Blakely, because under Minnesota law, the rule from Blakely does not apply retroactively to cases on collateral review.

Affirmed.