This opinion will be unpublished and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

A04-2237

 

 

Isaac William Unruh,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed November 22, 2005

Reversed and remanded

Klaphake, Judge

 

Roseau County District Court

File No. K0-02-430

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Michelle Moren, Roseau County Attorney, Courthouse, Room 10, 606 5th Avenue SW, Roseau, MN  56751 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Isaac William Unruh pleaded guilty to a reduced charge of attempted manufacture of methamphetamine and, as part of the plea agreement, agreed to an 80-month sentence, an upward durational departure from the presumptive 55-month sentence.  Appellant did not file a direct appeal, but brought a postconviction petition for relief from the sentence.  The district court denied his petition, stating that because the time for direct appeal expired, appellant was not entitled to relief from his sentence under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

            The district court correctly determined that appellant was not entitled to relief under Blakely.  But because we agree with appellant’s alternative argument that a sentencing departure must be based on substantial and compelling reasons, and may not be based solely on a plea agreement, we reverse the district court’s denial of appellant’s postconviction petition and remand to the district court.  On remand, the district court may consider motions to vacate the conviction and plea agreement.  See State v. Lewis, 656 N.W.2d 535, 539 (Minn. 2003). 

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).  It has been established that the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), are not applied retroactively on collateral review to matters that were final before it was issued.  State v. Houston, 702 N.W.2d 268, 272-73 (Minn. 2005).  Appellant’s conviction and sentence became final when he failed to file a direct appeal after his sentencing on August 18, 2003.  The district court did not abuse its discretion by refusing to grant appellant postconviction relief based on Blakely.

            This does not end our inquiry into appellant’s sentencing.  A district court’s decision to depart from the sentencing guidelines is reviewed for an abuse of discretion.  State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).  If the district court decides to depart, it must state the reason for the departure on the record and there must be substantial and compelling reasons to support the departure.  State v. Petschl, 692 N.W.2d 463, 472 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005), cert. denied, 125 S. Ct. 2912 (2005).  Here, the district court cited two reasons for departure: (1) appellant agreed to an upward departure as part of the plea agreement; and (2) the sentencing guidelines permitted departure based on certain aggravating factors.

            Because “the overriding principle in all sentencing is rationality, predictability, and consistency, and plea agreements . . . exist within the framework of the sentencing guidelines[,]” a plea agreement alone is not a sufficient basis for a departure.  Misquadace, 644 N.W.2d at 71.  Instead, the district court must find that sufficient aggravating circumstances exist to support a departure.  Id.  Generally, uncharged or dismissed offenses are not to be used as a basis for departure.  Id.; see also Taylor v. State, 670 N.W.2d 584, 588-89 (Minn. 2003) (reversing sentence, where district court based departure on offender’s admission that another, uncharged act had occurred).

            The district court here relied on the aggravating factors set forth at Minn. Sent. Guidelines II.D.2.b(5), which states that the district court may depart where there is a major controlled substance crime, defined as “an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense.”  Two or more of the listed factors must be present to support the finding of a major controlled substance crime.  Id.  The district court identified two aggravating factors:  (1) the offense involved at least three separate transactions wherein controlled substances were possessed; and (2) the offense involved the manufacture of a controlled substance for use by another party.  See Minn. Sent. Guidelines II.D.2.b(5)(a), (c).

            Neither of these is supported by the record.  The first relies on the uncharged offenses, and there is no evidentiary support in the record for the second.  Because there are no substantial and compelling reasons for departing from the presumptive sentence, the district court abused its discretion by enhancing appellant’s sentence.

            In State v. Lewis, 656 N.W.2d 535, 538-39 (Minn. 2003), the supreme court acknowledged that the conviction and sentencing components of a plea agreement are closely “interrelated,” and that when the appellate court finds inadequate grounds for departure, the district court may consider the effect the change in sentence has on the plea agreement.  In Lewis, the supreme court remanded to the district court, so that it could consider motions to vacate the conviction and the plea agreement.  Id. at 539.  Although in State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003), the supreme court remanded a sentence to the district court with instructions to impose the presumptive sentence, there had been no reduction in charges as part of the plea agreement and the district court had given no reason for the departure.  Here, appellant had the benefit of a substantial reduction in the charge based on his agreement to a sentencing departure.  Under these circumstances, we reverse the order denying postconviction relief and remand to the district court, which may consider motions to vacate the plea if appropriate.

            Reversed and remanded.