This opinion will be unpublished and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

A05-502

 

Calvin Thomas King, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 31, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 02016749

 

 

John M. Stuart, State Public Defender, Rochelle R. Winn, 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

 

Amy J. Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

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

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            On postconviction appeal, appellant contends that he is entitled to the retroactive application of the rule in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to the upward durational departure of his sentence as a career offender.  Because Blakely did not announce a new rule entitled to retroactive application, we affirm.

FACTS

On June 19, 2002, appellant Calvin Thomas King pleaded guilty to a drug offense listed as a severity level II offense under the Minnesota Sentencing Guidelines.  He had six or more criminal-history points, and his presumptive sentence was 21 months executed.  On the plea date, the district court imposed a 60-month stayed sentence and placed King on probation.

The duration of King’s sentence was an upward departure from the sentencing guidelines and was based on the district court’s finding under Minn. Stat. § 609.1095, subd. 4 (2002), that King was a career offender in that he had a prior criminal-history score of six or more felonies and his current offense was part of a “pattern of criminal conduct.”  King’s stayed sentence and probation constituted a downward dispositional departure from the presumptive sentence.

After King violated his probation, the district court revoked his probation and ordered the execution of his sentence on August 29, 2002.  King did not appeal his conviction, sentence, or probation revocation.

In 2004, the United States Supreme Court held that an accused is entitled to a jury trial as to any fact, other than a prior conviction, that would increase the accused’s sentence duration beyond the statutory maximum sentence.  Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004).  Under a sentencing scheme such as Minnesota’s, the “statutory maximum” is the presumptive sentence.  Id. 

Contending that he is entitled to a jury trial on the issue of whether his current offense was part of a pattern of criminal conduct, King filed a petition for postconviction relief on November 3, 2004.  The district court denied the petition, holding that Blakely is not applicable retroactively to King’s sentence.  King appealed.

D E C I S I O N

We begin by noting that the Blakely rule applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131 (Minn. 2005).  We also note that, for purposes of enhancing the duration of a sentence, the determination that the accused has engaged in a “pattern” of criminal conduct is the type of determination as to which the accused has a right to a jury trial under the Blakely rule.  State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005); State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004).

King contends that, although his conviction was final when Blakely was decided, he is entitled to the retroactive application of the Blakely rule to the upward durational departure component of this sentence because Blakely was merely an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Apprendi held that a sentence beyond the statutory maximum is unconstitutional unless the accused was afforded the right to a jury trial on the facts that the court relied on in exceeding the maximum sentence.  Id.

King’s contention is answered by the controlling authority of State v. Houston, 702 N.W.2d 268 (Minn. 2005).  Houston begins by recognizing that when a case announces a “new” rule of federal constitutional criminal procedure, as opposed to “merely a predictable extension of a pre-existing doctrine . . . [a] defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for postconviction relief) does not receive the benefit of [that] ‘new’ rule . . . .”  Id. at 270 (citing O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004)).  The court then held that “ . . .  Blakely is a new rule of constitutional criminal procedure unavailable for collateral use.”  Id at 273.

There are two exceptions to the retroactivity rule explained in O’Meara.  The first relates to the lack of power in the lawmaking authority to proscribe the conduct at issue, and the second to “watershed” rules of constitutional procedure.  Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76 (1989).  Although King has not argued either exception, we observe that the first is not applicable here and, as to the second, the court in Houstonheld: “While Blakely is a new rule of federal constitutional criminal procedure, it is not a ‘watershed’ new rule requiring full retroactivity.”  Houston, 702 N.W.2d at 273.

            Affirmed.