This opinion will be unpublished and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

A05-292

 

Nathan Daniel Clark, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 6, 2005

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 99115263

 

Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, #1610W, St. Paul, MN 55101 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that the denial of an evidentiary hearing on the alleged ineffective assistance of appellate counsel constitutes an abuse of discretion and that his sentence violates the rule enunciated in Blakely.  Appellant also raised several pro se arguments.  Because we conclude that the district court did not abuse its discretion by denying an evidentiary hearing, that appellant’s waiver was adequate under the controlling law at the time of his sentence, that Blakely is inapplicable to appellant’s sentence, and that appellant’s pro se arguments lack legal merit, we affirm. 

FACTS

In September 1999, appellant Nathan Daniel Clark contacted the authorities to report a robbery.  When police officers arrived at a residence shared by appellant and his girlfriend, they discovered appellant’s girlfriend was dead as a result of strangulation.  The victim’s face and chest were purple, some of her fingernails were broken, a clump of her hair was torn from her head, and her t-shirt and a ripped pair of underwear were lying on the floor nearby.  The victim also had deep bruises on her arms and a small laceration on her cheek.  Appellant claimed that two suspects had entered the residence looking for money and had beaten the victim.  Appellant told the officers that the robbery suspects had left ten minutes prior to the officers’ arrival; but an autopsy report indicated that the victim had died several hours prior to the officers’ discovery of the body. 

            Appellant was charged with first-degree murder.  During plea negotiations, the parties agreed that appellant would enter a guilty plea to second-degree unintentional murder and the prosecutor would recommend an enhanced sentence not to exceed 378 months.  On January 28, 2000, appellant pleaded guilty to the amended count of second-degree murder both on the record and in writing.  At the plea hearing, appellant’s counsel and the district court questioned appellant on the record regarding his understanding of the consequences of the guilty plea.  Appellant responded affirmatively that he understood he was giving up his right to a jury trial and all its accompanying rights and privileges; that he had sufficient time to consult with his attorney and to review the evidence; and that he understood the sentence to which he agreed.  Appellant acknowledged the factual basis of his guilty plea and the aggravating factors justifying the departure, including that he had caused the victim’s death by strangling her, lied to the police and concealed information, and engaged in a pattern of abuse of the victim.  Appellant acknowledged on the record that his guilty plea was “freely and voluntarily” given. 

            On February 24, 2000, appellant was sentenced to 378 months in prison, an upward departure from the presumptive guidelines sentence.  At the sentencing hearing, the district court based the upward durational departure on the following factors:

[F]irst, that it was negotiated between the parties.  Secondly, it’s based on the fact that the murder took place in the victim’s own home.  Three, that the defendant lied to the police and rather than getting help for the victim, attempted to hide the fact that he was in fact the murderer and the fact that the history of the domestic violence, coupled with the cruelty with which the victim was treated at the time of the homicide would have justified a conviction for murder in the first degree. 

 

Following sentencing, appellant contacted the State Public Defender’s office regarding a possible appeal.  In April 2000, the public defender’s office notified appellant that it had received his preliminary information.  On May 4, 2000, an assistant public defender stated in a letter to appellant that, after thoroughly reviewing his case, an appeal of his sentence was without merit because its terms were negotiated. The assistant public defender stated that appellant could contact her with any concerns regarding his case.  Appellant did not file a direct appeal before the time for appeal expired on May 24, 2000.  Subsequently, in December 2000, appellant fired his public defender. 

In July 2002, appellant filed a pro se petition for postconviction relief, requesting modification and reduction of his sentence.  Appellant argued that the aggravating factors found by the district court to justify departure from the presumptive sentence were improper and inapplicable.  The district court denied appellant’s petition.

            In May 2004, appellant filed a second pro se petition for postconviction relief, arguing prosecutorial misconduct, ineffective assistance of trial counsel, and insufficiency of the evidence.  Subsequently, an assistant public defender was appointed to represent appellant.  In an amended petition for postconviction relief, appellant argued ineffective assistance of appellate counsel based on the assistant public defender’s decision not to file a direct appeal; inadequate waiver of the right to be sentenced under the Minnesota Sentencing Guidelines; and a Blakely violation in the imposition of the upward departure.  The amended petition requested an evidentiary hearing, vacation of the previously imposed sentence, and imposition of the presumptive sentence.  The district court denied the petition for postconviction relief in its order of December 13, 2004.  This appeal follows. 

D E C I S I O N

I.

“On appeal from a summary denial of postconviction relief, we examine whether sufficient evidence exists to support the postconviction court’s findings and will reverse those findings only upon proof that the postconviction court abused its discretion.”  Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003).  This court reviews the decision of a postconviction court under an abuse of discretion standard.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  The scope of postconviction review is limited to determining whether the record sustains the postconviction court’s findings.  Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).  A criminal defendant who seeks postconviction relief bears the burden of demonstrating facts by “a fair preponderance of the evidence,” that warrant reopening the case.  Rainer, 502 N.W.2d at 787.

            Appellant raises three issues on appeal.  First, appellant contends that his petition for postconviction relief asserting ineffective assistance of appellate counsel raises material issues of fact that entitle him to: (a) an evidentiary hearing, and (b) the right to pursue a direct appeal after the statutory deadline. 

The district court must grant an evidentiary hearing for a postconviction appeal “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief[.]”  Minn. Stat. § 590.04, subd. 1 (2004).  An evidentiary hearing is necessary when there is a material issue of fact in dispute.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  “[A]llegations raised in the petition must be more than argumentative assertions without factual support.”  Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998) (citation omitted).  Thus, if a petitioner only makes general allegations of ineffectiveness of counsel, without alleging facts that if proved would entitle him to relief, then a district court may deny the petitioner an evidentiary hearing.  McDonough v. State, 675 N.W.2d 53, 56 (Minn. 2004). 

Here, there were no facts in dispute that required an evidentiary hearing.  See id. (“To establish ineffective assistance of appellate counsel, a petitioner must demonstrate that appellate counsel’s performance was objectively unreasonable and that the unreasonable performance prejudiced him.”) (citing Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052 (1984)).  The record is clear that appellant contacted the public defender’s office regarding the possibility of an appeal and that the public defender stated in a letter to appellant that, after thoroughly reviewing the case, an appeal of his sentence lacked legal merit, and therefore, based on her professional opinion, she would not pursue the appeal.  Consequently, counsel satisfied her duty to consult with appellant regarding a potential appeal.  See Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 1036 (2000) (counsel has duty to consult with defendant about an appeal when defendant demonstrated to counsel an interest in appealing). 

Because counsel contacted appellant three weeks prior to the 90-day deadline, no prejudice resulted from the public defender’s action.  It was appellant who waived the right to appeal by failing to timely file a notice of appeal or to request an extension to file an appeal within the time remaining for appeal.  See Spann v. State, 704 N.W.2d 486, 491 (Minn. 2005) (holding defendant may waive the right to appeal by not filing an appeal).  Because appellant did not provide any additional facts to support his claim of ineffective assistance of appellate counsel, the district court did not abuse its discretion in denying an evidentiary hearing. 

Appellant further argues that he is entitled to pursue an untimely direct appeal due to counsel’s failure to file a timely appeal.  Respondent contends that the relief sought by appellant in his petition, i.e., a direct appeal after the statutory deadline, is not available to him under Minnesota law.

This court’s appellate jurisdiction is limited to that provided by applicable rule or statute.  State v. Verschelde, 585 N.W.2d 429, 432 (Minn. App. 1998).  Minn. R. Crim P. 28.05, subd. 1 (2000), provides that any party appealing a sentence shall file a notice of appeal with the clerk of the appellate courts within 90 days after judgment and sentencing.  Non-sentencing appeals, i.e., defense appeals from conviction, must also be taken by a defendant within 90 days after final judgment or entry of the appealable order.  Minn. R. Crim. P. 28.02, subd. 4(3).  Either the district court or this court may “for good cause” extend the time to appeal for up to 30 days.  Id.  There is no provision for extending the time to appeal in Rule 28.05.  See State v. Thomas, 371 N.W.2d 533, 534 n.2 (Minn. 1985) (citing Rule 28.05, subd. 1(4)).  And this court “may not alter the time for filing notice of appeal except as provided by these rules.”  Minn. R. Crim. P. 28.01, subd. 3; see also State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995) (declining to extend the time for appeal for lack of authority for doing so), review denied (Minn. Mar. 14, 1995).  Because appellant failed to file a timely notice of appeal, his opportunity for direct appeal expired.  Consequently, the relief sought is unavailable. 

II.

Second, appellant contends that he is entitled to postconviction relief because the upward durational departure imposed by the sentencing court violates his constitutional rights pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  On appeal, we review a postconviction court’s decision to grant or deny relief under an abuse-of-discretion standard.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The determination of whether a decision applies retroactively or nonretroactively is a legal question that we review de novo.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2002), the United States Supreme Court held that any fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  In Blakely, the Supreme Court concluded 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.”  542 U.S. at ___, 124 S. Ct. at 2537 (quotation and emphasis omitted).  The Minnesota Supreme Court has concluded that Blakely applies to upward durational departures imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005); reh’g granted (Minn. Oct. 6, 2005).

A.     Waiver of Right to Jury Trial on Aggravating Factors

First, appellant contends he did not knowingly, voluntarily and intelligently waive his right to have a jury trial on the existence of aggravating factors when he entered his guilty plea and agreed to an enhanced 378-month sentence.  Respondent argues that appellant’s waiver of his right to be sentenced under the guidelines was adequate under the controlling law at the time. 

The law at the time of appellant’s guilty plea was that defendants may relinquish their right to be sentenced under the guidelines, i.e., agree to an upward departure as part of a plea bargain.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  “Such a waiver, however, must conform to the usual limitations accompanying the waiver of constitutional or statutory rights, that is, it must be knowing, intelligent, and voluntary.”  Id. (citing Edwards v.  Ariz., 451 U.S. 477, 482, 101 S. Ct. 1880, 1883-84 (1981)).  To constitute a knowing, intelligent and voluntary waiver, the defendant must have been advised of his or her right to be sentenced under the guidelines, have had the opportunity to consult counsel, and the district court must have properly accepted the plea supporting the departure under Minn. R. Crim. P. 15.  Id.; see also State v. Sims, 553 N.W.2d 58, 61 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). 

Here, the district court advised appellant of his right to proceed to trial and advised him that the 378-month sentence was an upward departure in excess of the sentencing guidelines.  Appellant acknowledged his understanding of these rights both on the record at the guilty plea hearing and in writing.  The district court and appellate counsel also questioned appellant on the record to determine whether he understood that he was giving up his right to a jury trial, whether he had enough time to consult with his attorney, and whether he was freely and voluntarily pleading guilty.  Counsel also questioned appellant to determine whether a valid factual basis existed for the plea and for the upward departure, including whether there had been a pattern of domestic abuse between victim and appellant, that the murder took place in the victim’s home, and whether appellant concealed information and was dishonest with the police.  Following the hearing, the district court concluded that appellant knowingly, intelligently, and voluntarily waived his right to be sentenced under the guidelines pursuant to the controlling law at the time, i.e., Givens.  Based on our review of the record, the district court’s conclusion was adequately supported by the record.

B.  Retroactive Application of Blakely

Appellant argues that the imposition of the upward durational departure absent a waiver of his right to a jury trial to determine the existence of aggravating factors violates his constitutional rights under Blakely.  Appellant contends that Blakely applies retroactively to his sentence, and therefore, controls the adequacy of his waiver rather than Givens.  Respondent contends that Blakely does not apply retroactively to appellant’s sentence, which was final prior to Blakely’s effective date. 

A defendant is entitled to benefit from a new rule of federal constitutional criminal procedure if his case is pending on direct review when the new rule is announced.  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 United States Supreme Court has been filed and finally denied.”  Id. at 336.  A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for postconviction relief) generally may not benefit from the new rule.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  An exception exists, however, when the new rule is a “watershed rule of criminal procedure.”  Petschl, 692 N.W.2d at 471.  But the Minnesota Supreme Court determined that Blakely is not a watershed rule of criminal procedure and therefore is not subject to retroactive application on collateral review.  Houston, 702 N.W.2d at 273.

The issue of the retroactive effect of Blakely has been the subject of recent decisions of this court and the Minnesota Supreme Court.  The Minnesota Supreme Court decided that Blakely is a new rule of constitutional criminal procedure and therefore affirmed this court’s decision that Blakely is not retroactive past its effective date of June 24, 2004.  Id.  Here, appellant pleaded guilty to second-degree murder and, on February 24, 2000, was sentenced to 378 months in prison, an upward departure from the presumptive guidelines sentence.  Appellant failed to file a direct appeal within 90 days of sentencing, and the time to file a direct appeal expired on May 24, 2000.  Therefore, appellant’s conviction and sentencing became final on May 24, 2000, long before Blakely’s effective date of June 24, 2004.  Because appellant’s petition for postconviction relief is a collateral attack on his sentence and his conviction was final before Blakely’s effective date, appellant is not entitled to benefit from the rule enunciated in that decision.

III.

            Third, appellant raises several arguments in his pro se brief, none of which merit reversal of the district court’s denial of postconviction relief.  Appellant’s arguments relating to ineffective assistance of appellate counsel, upward departure, and sentencing either duplicate issues discussed above or lack legal merit.

Affirmed.