This opinion will be unpublished and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

A05-381

Julian Garcia Cordova, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed January 31, 2006

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K7013861

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN 55113-3724 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the denial of his petition for postconviction relief in which he argued that addition of a conditional-release term violated his Sixth Amendment right to a jury determination of factors affecting the length of his sentence.  We affirm.

FACTS

 

            Appellant Julian Garcia Cordova, who was convicted of first-degree criminal sexual conduct in December 2002, was sentenced to 144 months in prison with a five-year conditional-release provision.  On direct appeal, Cordova asserted evidentiary error, prosecutorial misconduct, and violation of his right to a speedy trial.  State v. Cordova, No. A03-596, 2004 WL 1326249, at * 1 (Minn. App. June 15, 2004), review denied (Minn. Aug. 17, 2004).  This court affirmed Cordova’s conviction and declined to review pro se arguments that were neither raised in the district court nor supported by case law or other authority.  Id.at *1, 5.  Cordova then petitioned for postconviction relief, requesting that the conditional-release provision be struck from his sentence.  The petition was denied without an evidentiary hearing.  This appeal followed.

D E C I S I O N

 

            “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.”  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts.  Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975).  “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).

            “[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  This rule applies if the defendant knew or should have known about the issue at the time of appeal.  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005).  The only recognized exceptions to this rule involve claims that are so novel that their legal basis was not reasonably available at the time the direct appeal was taken, or where the petitioner did not deliberately and inexcusably fail to raise the claim on direct appeal and fairness requires its consideration.  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005).

            Apprendi v. New Jersey, in which the United States Supreme Court held 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,” was released in 2000.  539 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  Blakely v. Washington, in which the United States Supreme Court extended the Apprendi rule to Washington state’s sentencing guidelines, was released on June 24, 2004.  542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  Cordova filed his petition for further review on July 6, 2004, twelve days after Blakely was issued, but failed to raise the constitutionality of the imposition of conditional release mandated by Minn. Stat. § 609.109, subd. 7 (2000).  Because Cordova could have asserted a Blakely challenge to his sentence while his case was pending on direct appeal, but failed to do so, he is barred by Knaffla from raising the issue in a petition for postconviction relief.

            We decline to review the issue Cordova presents on appeal because he raised a different challenge to imposition of conditional relief in the district court.  “This court generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure.”  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Specifically, in his petition for postconviction relief, Cordova challenged the imposition of conditional release under Blakely.  The district court correctly held that this claim was without merit based on our holding in Stone v. State that:

Because the imposition of conditional release under Minn. Stat. § 609.109, subd. 7, is a mandatory aspect of the sentence to be imposed by the district court for offenders convicted of criminal sexual conduct, the conditional release period is part of the maximum sentence that an offender may receive for his crime.  

 

675 N.W.2d 631, 634 (Minn. App. 2004).  The district court also relied on State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003), in which the supreme court held that a jury verdict supports a conditional-release term imposed under Minn. Stat. § 609.109, subd. 7, without additional findings by the district court. We reject Cordova’s argument that because Jones was decided prior to Blakely,the district court improperly relied on Jones.  Conditional release, under Minn. Stat. § 609.109, subd. 7, does not depend on any findings of fact beyond the jury verdict; therefore, Blakely does not impact the validity of Jones.  The district court correctly concluded that Cordova’s argument, based on Blakely, is without merit.

            On appeal, Cordova does not focus on the constitutionality of the imposition of conditional release, and rather focuses on the constitutionality of Minn. Stat. § 609.109, subd. 7(b), which provides that:

[i]f the offender fails to meet any condition of release, the commissioner may revoke the offender’s conditional release and order that the offender serve the remaining portion of the conditional release term in prison.  The commissioner shall not dismiss the offender from supervision before the conditional release term expires.

 

Appellant argues that (1) time served for violating a condition of release is unrelated to the underlying crime or the facts supporting the conviction; (2) the provision allows the executive branch, rather than the judicial branch, to control the length of his sentence; and (3) the procedure deprives him of a jury determination beyond a reasonable doubt of factors that increase his sentence. 

            We first note that this issue is not ripe because Cordova is not on conditional release from prison, has not been alleged to have violated a condition of release, release has not been revoked by the commissioner, and Cordova is not appealing a release revocation.  “Issues which have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable.  Neither the ripe nor the ripening seeds of a controversy are present.”  Lee v. Delmont, 228 Minn. 101, 110, 36 N.W.2d 530, 537 (1949). 

            Furthermore, even if we were to address the merits of the argument, we note that the supreme court has previously rejected a claim that Minn. Stat. § 609.109, subd. 7, unconstitutionally permits the commissioner to control conditional-release revocation, by usurping and interfering with judicial functions.  State v. Schwartz, 628 N.W.2d 134, 140-41 (Minn. 2001).  The supreme court stated that “the legislature is vested with the power to prescribe punishment for criminal acts and the judiciary’s role is to impose sentences within the statutory limits prescribed by the legislature.”  Id.at 139 (quotation omitted).  “The commissioner’s subsequent revocation and re-incarceration decision does not alter the sentence of the court or impose a new sentence, but merely executes a condition within the parameters set by the court for appellant’s commitment to the commissioner.”  Id.at 140.  In Schwartz, the supreme court adopted the view that:

[P]ost-release control is part of the sentence imposed by the judiciary, and the executive branch’s authority to impose sanctions during release does not impede the judiciary’s sentencing authority. . . . [T]he executive branch’s discretion to impose sanctions during release comports with the long-standing practice of affording the executive branch absolute discretion over the release portion of an offender’s sentence.  Moreover . . . the post-release control sanctions are not mere punishment for another crime, but rather for behavior modification and reintegration of the offender into the community.  For these reasons . . . the executive branch’s discretionary power to compel post-release control sanctions does not violate separation of powers.

 

Id. at 140 (quotation and citations omitted).

            Cordova cites State v. Brown, 606 N.W.2d 670 (Minn. 2000), State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000), and State v. Wukawitz, 644 N.W.2d 852 (Minn. App. 2002), aff’d in part, rev’d in part, 662 N.W.2d 517 (Minn. 2003), for the proposition that a relationship must exist between the expected sentence and the term of conditional release.  Those cases all considered whether imposition of conditional release violated each defendant’s plea agreement, and we see no application of the cases to Cordova, who did not enter into a plea agreement.  The district court did not err in denying Cordova’s challenge to his sentence under Apprendi and Blakely.

            We decline to consider Cordova’s pro se argument because he failed to raise the issue in his direct appeal.  State v. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

            Affirmed.