STATE OF MINNESOTA

IN COURT OF APPEALS

A05-319

Randall Mark Spears, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 31, 2006

Affirmed.

Toussaint, Chief Judge

Scott County District Court

File No. 95-10941

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

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Justice Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Worke, Judge.

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

TOUSSAINT, Chief Judge

Appellant Randall Mark Spears challenges the district court’s denial of his petition for postconviction relief, contending that the postconviction court erred in ruling that appellant’s claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and State v. Grossman, 636 N.W.2d 545 (Minn. 2001), were barred and in ruling that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), is not subject to retroactive application. We affirm.

D E C I S I O N

Appellant’s conviction for first-degree criminal sexual conduct became final on June 27, 2000 when the Minnesota Supreme Court denied his petition for further review. See State v. Spears, 2000 WL 558162 (Minn. App. 2000), review denied (Minn. June 27, 2000); see also State v. Fairbanks, 688 N.W.2d 333, 337 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005), and order granting review vacated (Minn. Dec. 13, 2005). The supreme court later denied review in appellant’s postconviction appeal in which he alleged, among other claims, that his sentence violated Apprendi. See Spears v. State, No. C0-01-76 (Minn. App. July 31, 2001), review granted (Minn. Oct. 24, 2001), and order granting review vacated (Minn. Jan. 29, 2002).

Appellant has again filed for postconviction relief, claiming that his sentence violates Apprendi and Blakely because he was sentenced to a prison commitment of 40 years under Minnesota’s patterned sex-offender statute, Minn. Stat. § 609.1352 (1995), while the presumptive sentence for first-degree criminal sexual conduct was 30 years in prison under Minn. Stat. § 609.342, subd. 2 (1995). But appellant raised his Apprendi claim in his first postconviction petition and appeal in 2001, and the supreme court ultimately denied review in that appeal. The statute authorizing postconviction relief permits a postconviction court to dismiss a petition for similar relief where appellate courts have previously decided the issues raised in the successive petition. Minn. Stat. § 590.04, subd. 3 (2004).

And the Minnesota Supreme Court has recently held that Blakely does not apply to collateral attacks of convictions final before Blakely was announced. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (holding that while Blakely is a new rule of federal constitutional criminal procedure, it is not a “watershed” new rule requiring full retroactivity). Therefore, convictions that were final prior to Blakely are not entitled to the benefit of the rule. Appellant’s conviction became final when the period allowed to petition for certiorari expired after the Minnesota Supreme Court denied review of this court’s opinion in appellant’s direct appeal on June 27, 2000. Appellant is not entitled to application of Blakely to his postconviction appeal.

Affirmed.