A05-210

Steven R. Johnson, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 13, 2005

Affirmed

Hudson, Judge

Anoka County District Court

File No. K6-96-11630

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

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

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

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

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

HUDSON, Judge

In this appeal from the denial of a postconviction petition challenging a 1996 sentence for aiding and abetting first-degree criminal sexual conduct, appellant Steven Johnson argues that the upward durational departure, based on aggravating factors found by the district court, violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that Blakely should apply retroactively to his sentence. Because Johnson’s sentence was final before the ruling in Blakely, and because the Minnesota Supreme Court held in State v. Houston, 702 N.W.2d 268 (Minn. 2005) that Blakely does not apply retroactively, the district court correctly applied the law in denying his request for postconviction relief, and we affirm.

FACTS

Appellant Steven Johnson pleaded guilty in 1996 to charges of aiding and abetting first-degree criminal sexual conduct in violation of Minn. Stat. งง 609.342, subd. 1(c), .05 (1996). The district court sentenced him to 206 months in prison, a double durational departure from the presumptive guidelines sentence. The district court found a number of aggravating factors in the commission of the offense including: multiple acts of penetration, acts of penetration in the presence of another, physical restraint of the victim resulting in physical injury, references to a weapon, significant advance planning, invasion of the victim’s zone of privacy, particular cruelty by forcing the victim to be nude in 50-degree temperatures, and the length of the assault. Appellant did not file a direct appeal.

Nearly eight years later, Johnson filed a petition for postconviction relief, alleging that his Sixth Amendment rights had been violated when the district court made findings of fact to support the departure when he had not waived his right to a jury trial on those issues. At Johnson’s request, a public defender was appointed to represent him, and defense counsel filed a memorandum of law arguing that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) applied retroactively to his sentence, so that it should be reduced to the presumptive guidelines duration. The district court denied the petition, and Johnson appeals.

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). A postconviction court’s findings are accorded great deference, and its decision will not be reversed absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But the determination whether a holding applies retroactively is a legal question, and this court reviews legal questions de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).

Appellant argues that his sentence is unconstitutional because it violates his right to have the facts authorizing an upward sentencing departure found by a jury under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Blakely followed Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), in which the United States Supreme Court held that any facts, other than the fact of a prior conviction, that increase the penalty for an offense beyond the 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. The Blakely decision modified Apprendi by concluding that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings.” Blakely, 542 U.S. at 303–04, 124 S. Ct. at 2537. The Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines. State v. Shattuck, 704 N.W.2d 131, 141–42 (Minn. 2005), pet. for reh’g granted (Minn. Oct. 6, 2005).

Appellant pleaded guilty and was sentenced in 1996. He did not file a direct appeal. Thus, his sentence became final nearly eight years before the decision in Blakely. See Minn. R. Crim. P. 28.02, subd. 4(3) (mandating that a criminal defendant appeal within 90 days after entry of judgment); see also O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that a conviction becomes final after the time for appeal is exhausted). The Minnesota Supreme Court recently held that Blakely provides “a new rule of constitutional criminal procedure unavailable for collateral use,” which is not a “watershed” rule requiring retroactivity. State v. Houston, 702 N.W.2d 268, 273–74 (Minn. 2005). The court in Houston stated that “extending the benefit of the Blakely rule beyond those cases pending on direct review at the time of the announcement of the rule would undermine the retroactivity policy of validating good-faith state court decisions and preserving finality.” Id.at 273. The court reasoned that a “watershed” rule is “one without which ‘the likelihood of an accurate conviction is seriously diminished,’” and that Blakely did not enunciate a “watershed” rule because it did not have an impact on the accuracy of a determination of guilt or innocence, but rather modified the way in which factors justifying an upward durational departure must be treated. Id.(quotation omitted).

Because appellant’s sentence was final before the ruling in Blakely, and because Blakely does not apply retroactively, appellant is not entitled to benefit from the rule in Blakely, and the district court correctly applied the law in denying his request for postconviction relief.

Affirmed.