A05-328

Shaun Emery White, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 24, 2006

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 01036331

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, Minnesota 55105 (for appellant)

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

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Dietzen, 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 an order denying a postconviction petition challenging appellant’s EJJ sentencing on a second-degree murder conviction, appellant argues that the postconviction court erred in ruling that his challenge was procedurally barred under Minn. Stat. § 244.11, subd. 3(b) (1998), because his stay of execution was a mandated stay of execution, not a dispositional departure. Appellant also asserts that the departure based on judicial findings violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that Blakely applied retroactively to his sentence. Appellant further argues that an upward durational departure based solely on his plea agreement was improper under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), and that Misquadace applies because his conviction was not yet final when Misquadace was released. We conclude that Minn. Stat. § 244.11, subd. 3(b), does not apply as a procedural bar to appellant’s claim for postconviction relief. But because appellant’s case became final before the rulings in Blakely and Misquadace, which do not apply retroactively, and appellant entered a valid plea under the law applicable at the time of his conviction, we affirm.

FACTS

In an extended jurisdiction juvenile (EJJ) proceeding in 1999, appellant Shaun Emery White pleaded guilty to aiding and abetting second-degree intentional murder. The factual basis for White’s plea established that November 1988 he was on his way to a party in a Minneapolis apartment building with a companion who had a .22 caliber handgun. When they saw three men walking up the hallway stairs, White agreed with the companion’s plan to rob the men. During the robbery, White’s companion shot and killed one of the men.

The state charged White by amended petition in juvenile court with aiding and abetting first-degree felony murder; aiding and abetting second-degree intentional murder; aiding and abetting attempted aggravated robbery; and aiding and abetting aggravated robbery. Based on negotiations between the parties, the district court imposed an EJJ designation, and White pleaded guilty in April 1999 to second-degree intentional murder. The district court imposed a stayed 360-month sentence, representing an upward durational departure from the presumptive 306-month sentence, with the stated aggravating factor that a robbery occurred during the commission of the crime.

In April 2001, White admitted violating probation and waived his right to adult certification and a probation-revocation hearing. The district court revoked his EJJ status and maintained the 360-month stayed adult sentence, with adult probation. One year later, the district court held a formal hearing and revoked White’s probation on findings that he violated the conditions of probation.

In 2004, White—citing State v. Misquadace, 644 N.W.2d 65 (Minn. 2002)—filed a postconviction petition alleging that the district court erred by departing from the presumptive sentence solely on the basis of his plea. He later added a claim that his sentence was unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because it was based on judicial findings. The district court denied the petition, concluding that Minn. Stat. § 244.11, subd. 3(b) (1998), operated to bar his claims; that the rules in Misquadace and Blakely were inapplicable to his sentence; and that his sentence was proper under the law existing at the time of his sentencing. White appeals the denial of the petition for postconviction relief.

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 afforded 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 this court reviews de novo a postconviction court’s legal conclusions. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003); State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005), cert. denied, 125 S. Ct. 2912 (June 13, 2005).

White asserts that the district court erred in applying Minn. Stat. § 244.11, subd. 3(b) (1998), to determine that his sentencing appeal was untimely. We agree. Under this subsection of the statute,

(b) If a defendant agrees to a plea agreement and is given a stayed sentence, which is a dispositional departure from the presumptive sentence under the Minnesota sentencing guidelines, the defendant may appeal the sentence only if the appeal is taken:

(1) within 90 days of the date sentence was pronounced; or

(2) before the date of any act committed by the defendant resulting in revocation of the stay of sentence; whichever occurs first.

Id.

The statute further provides that “a defendant . . . who has failed to appeal as provided in [subsection b] may not file a petition for postconviction relief under chapter 590 regarding the sentence.” Id., subd. 3(c) (1998).

The district court held that appellant’s petition was barred by the application of the statute, reasoning that his stayed sentence was a dispositional departure from the presumptive guidelines sentence as stated in the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines IV (stating that presumptive sentence for second-degree murder is an executed prison sentence). Under this reasoning, appellant’s failure to appeal his sentence within 90 days after the date it was pronounced would make his postconviction petition untimely.

But in EJJ proceedings, “the [EJJ] statute mandates that the initial disposition of the adult sentence is a stay of execution.” State v. Bollin, 670 N.W.2d 605, 609 (Minn. App. 2003), review denied (Jan. 20, 2004); see Minn. Stat. § 260.126, subd. 4(a)(2) (1998)[1] (stating that if an EJJ prosecution results in guilty plea or finding of guilt, district court “shall” impose an adult criminal sentence, with execution stayed on condition that offender not violate provisions of disposition order and not commit a new offense). Therefore, because the initial disposition of appellant’s sentence under EJJ was required to be a stay of execution, the district court did not depart dispositionally at the time sentence was imposed. Thus, Minn. Stat. § 244.11, subd. 3(b) does not apply to bar appellant’s petition for postconviction relief.

The district court, as an alternate reason for dismissing the petition, held that appellant’s delay waived his right to challenge the sentence. Delay may be a relevant factor in determining whether postconviction relief should be granted. See Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (stating that “appellant’s delay in seeking relief is a relevant consideration in determining whether [postconviction] relief should be granted”). But absent prejudice shown by the state, delay by itself does not generally warrant barring a petition as untimely. See, e.g., Bolinger v. State, 647 N.W.2d 16, 22 (Minn. App. 2002) (declining to hold that appellant’s petition for postconviction relief was barred as untimely, in the interest of justice, where state failed to allege prejudice from denial of petition). Because White waited only two years after the revocation of his probation, and the state has failed to allege prejudice specific to White’s request for sentencing relief, the district court also erred in concluding that his delay in seeking postconviction relief waived his claim.

Because we conclude that Minn. Stat. § 244.11, subd. 3(b), does not preclude appellant’s request for postconviction relief, we need not consider his further argument on the unconstitutionality of that statute.

Appellant has also argued that the district court erred by failing to provide him with notice of his right to appeal his sentence under Minn. R. Crim. P. 27.03, subd. 5. Because the record does not reflect that appellant presented this argument to the district court, we need not consider it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will not generally consider matters not raised and considered in district court). But even if we were to consider this issue, because we have determined that the postconviction court properly considered appellant’s sentencing challenge, any error in failing to provide notice was harmless.

White further 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. 530 U.S. at 490, 120 S. Ct. at 2362–63. 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.” 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 (Minn. 2005) (as amended on petition for rehearing Oct. 6, 2005).

White acknowledges that his case became final before the decision in Blakely, which was released in June 2004. The Minnesota Supreme Court recently held that Blakely provides “a new rule of constitutional criminal procedure unavailable for collateral use,” but it is not a “watershed” rule requiring retroactivity. State v. Houston, 702 N.W.2d 268, 273 (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. Because White’s case was final before the ruling in Blakely, and because Blakely does not apply retroactively, White is not entitled to benefit from the rule in Blakely.

White also alleges that his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). In Ring, the United States Supreme Court held that because the defendant’s death sentence exceeded the statutory maximum of life imprisonment, it could be constitutionally imposed under Apprendi only if the necessary aggravating factors were found by a jury. Id. at 609, 122 S. Ct. at 2443. But until Blakely was decided in 2004, courts looked to the applicable statute, not to the sentencing guidelines, to determine the maximum sentence for an offense. Houston, 702 N.W.2d at 271. When White was sentenced, the statutory maximum sentence for second-degree intentional murder was 40 years. Minn. Stat. § 609.19, subd. 1 (1998). Because White’s 360-month sentence did not exceed the statutory maximum for second-degree intentional murder, his sentence did not violate Ring.

III

Finally, White challenges the postconviction court’s determination that the rule in State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) did not govern the terms of his sentencing. In Misquadace, the Minnesota Supreme Court held that a plea agreement, standing alone, did not provide a sufficient basis for departure from the sentencing guidelines. Id. at 72. In so doing, the supreme court refined the rule in State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996), which held that a defendant may, by negotiated plea agreement, relinquish his right to be sentenced under the guidelines. The supreme court stated that the new rule of law would apply to “all pending and future cases.” Misquadace, 644 N.W.2d at 72. The court later determined that because Misquadace announced a new rule of law, it would not be applied retroactively to a conviction that had become final after the date of that decision. Hutchinson v. State, 679 N.W.2d 160, 165 (Minn. 2004).

Appellant argues that although he did not file a direct sentencing appeal, his case was “pending” when Misquadace was decided because the time to appeal his sentence following its execution at the probation-revocation proceedings had not yet expired. But appellant’s sentence became “final” for purposes of determining retroactivity in 1999 when he was convicted and sentence was imposed, though not yet executed, and the time to file a direct appeal expired. Hutchinson, 679 N.W.2d at 162; see also Minn. R. Crim. P. 28.02, subd. 2 (stating that judgment shall be consideredfinal “when there is a judgment of conviction . . . and sentence is imposed or the imposition of sentence is stayed”). Moreover, this court has recently held that a probation-revocation appeal does not extend the date of finality for purposes of applying the rule in Blakely v. Washington to sentence departures. State v. Losh, 694 N.W.2d 98, 101 n.2 (Minn. App. 2005), review granted (Minn. June 28, 2005).[2] As in Losh, appellant knew the duration of his sentence and had the opportunity to contest the sentence when it was first imposed. Thus, the rule announced in Misquadace does not apply to appellant’s sentence.

Appellant maintains that, even if Misquadace does not apply, he did not waive his right to be sentenced under the sentencing guidelines, as required by Givens. See Givens, 544 N.W.2d at 777 (stating requirement of a knowing, voluntary, and intelligent waiver of right to guidelines sentence). The plea hearing transcript and the order of disposition in this EJJ case do not definitively indicate whether appellant waived his right to a guidelines sentence. But if he did not waive the right to a guidelines sentence, appellant’s proper remedy would be a plea withdrawal, not the sentence reduction he is requesting as a reformation of the plea agreement and to which the law does not entitle him. When a defendant does not seek to withdraw his plea, an appellate court will not impose that remedy upon him. See State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (finding grounds to withdraw plea but leaving choice to defendant).

Therefore, the district court did not err in departing from the presumptive sentence on the basis of appellant’s plea under Givens, the law applicable at the time of his conviction.

Affirmed.

[1] Minn. Stat. § 260.126, subd. 4(a)(2) (1998) was renumbered in 1999 as Minn. Stat. § 260B.130, subd. 4(a)(2) with no textual changes. See 1999 Minn. Laws ch. 139, art. 2, § 12, at 592.

[2] This court in Losh recognized the focus, in a retroactivity analysis, on when a conviction becomes final, rather than on when the sentence may no longer be modified. Losh, 694 N.W.2d at 101, n.2 (citing Minn. R. Crim. P. 27.03; State v. Hockensmith, 417 N.W.2d 630, 632 (Minn. 1988) (allowing defendant to challenge upward durational departure at probation-revocation hearing)). “[T]he fact that modification of a sentence is possible does not mean a judgment is not final for the purpose of precluding the retroactive application of a new rule.” Id.