Filed December 27, 2005

Affirmed

Randall, Judge

Becker County District Court

File No. KX-99-766, K8-99-765

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

Joseph Evans, Becker County Attorney, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Dietzen, Judge.

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

RANDALL, Judge

Appeal from order resentencing appellant on remand from postconviction challenge to 2000 sentence for two counts of second-degree criminal sexual conduct. Appellant argues that the upward departure to the statutory maximum based on the patterned-sex-offender statute violated his right to a jury trial under Blakely and that the district court erred in concluding Blakely did not apply because appellant’s sentence became final in August 2000. Appellant argues that the resentencing resulted in two entirely new sentences. In the alternative, appellant argues that Blakely is retroactive to the release of Apprendi. We affirm.

FACTS

In 1999, Timothy J. O’Meara, appellant, was charged with two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a)(2) (1998). On April 4, 2000, appellant was convicted of the crimes charged.

His sentencing was postponed until May 2000 so that a presentence evaluation could be completed. The presumptive sentences for appellant’s offenses under the sentencing guidelines were 51 and 60 months confinement. Minn. Sent. Guidelines IV (1998). The statutory maximum sentence for appellant was 25 years in confinement. Minn. Stat. § 609.343 subd. 2(a) (1998). After his presentence evaluation, appellant was found to be a patterned sex offender under Minn. Stat. § 609.108 (1998). The state moved for sentencing under the patterned and predatory sex-offender statute, requesting consecutive terms of 40 years confinement, the maximum allowed. The state’s request was granted and on May 8, 2000, appellant was sentenced to two consecutive 40-year prison terms.

On June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey, holding 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.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). A year later, the Minnesota Supreme Court, applying and following Apprendi, invalidated 40 year sentences imposed under the patterned sex-offender statute. State v. Grossman, 636 N.W.2d 545, 551 (Minn. 2001).

On April 5, 2002, appellant filed a petition for post-conviction relief per the decisions under Apprendi and Grossman. The district court denied the petition and this court affirmed its decision. O’Meara v. State, No. C0-02-1982 (Minn. App. July 29, 2003) (O’Meara I). The Minnesota Supreme Court accepted review and in its May 13, 2004 opinion, reversed, holding that Apprendi applied to appellant’s case because it was decided while appellant’s case was still pending. O’Meara v. State, 679 N.W.2d 334, 340 (Minn. 2004) (O’Meara II). In its opinion, the court stated that appellant’s sentences should be no more than 25 years confinement for each offense, and remanded for imposition of these sentences. Id. at 341.

On June 24, 2004, in Blakely v. Washington, the United States Supreme Court held that Apprendi invalidated upward durational departures in guideline sentencing situations. 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).

At appellant’s August 11, 2004 re-sentencing hearing, held as a result of the decision in O’Meara II, appellant argued that under Blakely and Apprendi, the longest sentences he could receive were the “top of the box” presumptive guidelines. The court found that Blakely did not apply to appellant’s case because appellant’s case had become final in August 2000, well before the decision in Blakely. Based on its earlier findings under the patterned sex offender statute, the court sentenced appellant to two consecutive 25-year prison terms. This appeal followed.

D E C I S I O N

Appellant argues that his sentence is unconstitutional because a judge, not a jury, decided the facts supporting the upward durational departure based on the patterned sex offender statute. He argues that his case was still pending, not yet final, and therefore, the holding in Blakely applies to his case.

“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) (citations omitted). A post conviction court’s findings are afforded great deference and its decision will not be reversed unless the postconviction court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But a postconviction court’s conclusions of law are subject to de novo review. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). Whether a decision applies retroactively or non-retroactively is a legal question. State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Jan. 20, 2005).

Appellant argues his case was pending when Blakely was decided and its holding applies to his case. Appellant bases his argument on the interpretation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court concluded that the statutory maximum sentence that a judge may impose “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 524 U.S. at 303-04, 124 S. Ct. at 2537. This court has determined that Blakely applies to upward durational departures based on the finding that a defendant was a patterned sex-offender under Minn. Stat. § 609.108. State v. Boehl, 697 N.W.2d 215, 222 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005).

[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule. But if the defendant’s conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.

O’Meara v. State, 679 N.W.2d 334, 339-40 (Minn. 2004). “[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 Supreme Court has been filed and finally denied.” Id. at 339 An exception exists when the new rule is a “watershed rule of criminal procedure.” Petschl, 692 N.W.2d at 471. This court has determined that Blakely is not a watershed rule of criminal procedure and is not subject to retroactive application on collateral review. Id. at 472.

On May 13, 2004, the Minnesota Supreme Court reversed and remanded appellant’s case so that the holding of Apprendi could be applied to his sentence. O’Meara, 679 N.W.2d at 340. Although the court remanded, it found that the district court did not abuse its discretion when it sentenced appellant to an upward departure and instructed the district court to impose the statutory maximum sentences of two consecutive 25-year terms plus a conditional release term of 10 years. Id. at 341.

Appellant argues he was “sentenced anew” and therefore, his case was not final and Blakely applies. He argues his imposed sentence was not amended or corrected but that he was given two entirely new sentences which makes his case pending. Appellant relies on this court’s decision in State v. Sanders, 644 N.W.2d 483 (Minn. App. 2002), review denied (Minn. Aug. 16, 2005).

In Sanders, the defendant was improperly sentenced under the career offender statute but was then sentenced as a dangerous offender, a new theory. Id. at 484. When the defendant was re-sentenced under the dangerous offender theory, he was not afforded an opportunity to contest the merits of the state’s new theory before his sentence was determined. Id.at 486. This court held that the defendant had the right to a new hearing because the state was sentencing defendant under a different criminal statute which was not presented at the original sentencing hearing. Id. at 487. The court stated that the defendant had the unqualified due process right to argue against the state’s new theory before he was sentenced. Id. at 486.

Appellant argues his case is like Sanders because here, the district court was imposing a new sentence, and thus, was required to hold a hearing, giving him the right and opportunity to contest his sentence. Appellant believes the court’s holding in Sanders made the defendant’s case pending, which would then call for the application of any new rule decided while the case was pending. Appellant misses the crux of the court’s reasoning in Sanders. In Sanders, a new hearing was necessary not because the defendant was being re-sentenced, but because the state was sentencing him under a different criminal statute. In appellant’s case, he was not being re-sentenced under a new criminal statute, his sentence was simply adjusted so that it adhered to correct law. In his reply brief, appellant argues his sentence was vacated. However, the supreme court stated appellant’s “sentence was imposed in violation of Apprendi, and must therefore be reduced.” O’Meara,679 N.W.2d at 340 (emphasis added). The principle of Sanders remains. Sanders was resentenced under a different statute, whereas appellant is having the same statutory sentence reduced.

Appellant’s case was final before Blakely was decided. In O’Meara, the Minnesota Supreme Court determined that appellant’s case became final on August 6, 2000, almost four years prior to Blakely. Id. “[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 Supreme Court has been filed and finally denied.” Id. at 339. The court found that appellant’s appeal period expired on August 6, 2000 because he failed to perfect a direct appeal. Id. at 340.

As respondent correctly points out, this courts decision in State v. Losh supports the decision that appellant’s case was not pending when Blakely was decided. 694 N.W.2d 98 (Minn. App. 2005), review granted (Minn. June 28, 2005). In Losh, the defendant was sentenced to an upward durational departure of 120 months in prison but the sentence was stayed. Id. at 99-100. The court dispositionally departed from the sentence and sentenced the defendant to one year in jail and 40 years of probation. Id. Eventually, the defendant violated the terms of her sentence and the 120 month prison sentenced was executed. Id. at 100. Only after the revocation of her probation did she challenge the constitutionality of the upward departure. Id. The defendant did not directly appeal her final judgment, but appealed from the revocation of her probation. Id.

In its decision not to apply Blakely, this court had to determine if the defendant’s case was still pending. Id. at 100-01. Blakely was decided while her probation-revocation appeal was pending. Id. at 100. The court determined that the defendant’s case was not pending because Blakely was decided after the period to file a direct appeal from her conviction was final. Id. at 101. This was true even though she was now appealing her upward durational departure sentence.

II.

Appellant argues that even if his case was not pending, the holding in Blakely is to be applied retroactively. He first argues that the decision in Blakely did not establish a new rule of law but merely applied settled laws to new and different factual situations. In the alternative, he argues, if the court does find that Blakely established a new rule, it is a watershed rule and is applicable to all past cases.

In State v. Houston, the Minnesota Supreme Court held that the Blakely decision created a new rule, but that it was not “a watershed rule,” and was not to be applied retroactively on collateral review to convictions that were final before Blakely was decided. 702 N.W.2d 268, 274 (Minn. 2005).

Affirmed.