Samuel Lee Byers, Petitioner, Appellant, vs. State of Minnesota, Respondent. A05-594, Court of Appeals Unpublished, October 25, 2005.

This opinion will be unpublished and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

A05-594

Samuel Lee Byers,

Petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 25, 2005

Affirmed

Worke, Judge

Hennepin County District Court

File No. 95055258

Samuel Lee Byers, MCF/Rush City, 7600 525^th Street, Rush City, MN 55069 (pro se appellant)

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

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

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

WORKE, Judge

In November 1995, appellant was convicted of second-degree murder. Appellant was sentenced to 240 months in prison, an upward departure from the presumptive sentence of 156 months under the Minnesota Sentencing Guidelines. In 1997, appellant’s conviction was affirmed by the Minnesota Supreme Court. State v. Byers, 570 N.W.2d 487 (Minn. 1997). Appellant now argues that the imposition of an upward departure was not justified based on the facts and that it was a violation of his Sixth Amendment right to a jury trial under 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). Because under Minnesota law the rule from Blakely does not apply retroactively to cases on collateral review, we affirm.

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). 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 is seeking to relitigate the underlying basis for the upward durational departure; however, the propriety of his sentence was fully litigated in appellant’s direct appeal. “[W]here 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.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Appellant is now barred from raising the issue.

Appellant also argues that the upward durational departure is a violation of his Sixth Amendment right to a jury trial under Apprendi and Blakely. Appellant was found guilty and was sentenced before Apprendi and Blakely were decided. The United States Supreme Court held 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.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. In Blakely, the Court extended the rule in Apprendi to sentencing-guideline regimes, holding 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.” Blakely, 542 U.S. at ____, 124 S. Ct. at 2537 (emphasis omitted). The Minnesota Supreme Court has held that 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), pet. for rehearing filed (Aug. 29, 2005). Further, the supreme court held that while the Blakely decision created a new rule, it is not a watershed rule and will not be applied retroactively on collateral review. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). Because under Minnesota law, the rule from Blakely does not apply retroactively to cases on collateral review, the imposition of an upward departure in this case was not a violation of appellant’s Sixth Amendment right to a jury trial.

Affirmed.