This opinion will be unpublished and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

A05-301

 

Thomas Wayne Evenstad, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed February 7, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 98023039

 

 

Thomas Wayne Evenstad, OID #172482, Minnesota Correctional Facility, Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

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

 

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

 

 

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

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

In this appeal from an order denying postconviction relief, appellant argues that the district court erred in ruling that he was not entitled to relief under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), from a custody-status point added by the district court and a five-year conditional-release term imposed pursuant to Minn. Stat. § 609.109, subd. 7 (1998).  Because Apprendi and Blakely are not applicable to appellant’s sentence, we affirm.

FACTS

In 1999, a jury found appellant Thomas Wayne Evenstad guilty of first- and third-degree criminal sexual conduct under Minn. Stat. §§ 609.342, .344 (1998).  Based on a severity level of eight and four criminal-history points (including one custody-status point), the district court sentenced him to 139 months in prison.  He also received a conditional-release term of five years pursuant to Minn. Stat. § 609.109, subd. 7 (1998).  This court affirmed Evenstad’s conviction on June 6, 2000, and the supreme court denied his petition for review on August 15, 2000.  Approximately one year later, Evenstad filed a petition for postconviction relief, claiming ineffective assistance of counsel, newly discovered evidence, and failure by the prosecution to reveal favorable evidence.  This court affirmed the dismissal of the petition but vacated the conviction for third-degree criminal sexual conduct.  Evenstad v. State, No. C4-02-1421 (May 20, 2003).  On July 20, 2004, Evenstad brought a second petition for postconviction relief, arguing that his sentence violated the Sixth Amendment under Apprendi and Blakely.  The district court denied his second petition, and this appeal followed.

D E C I S I O N

Evenstad first argues that the district court’s addition of a custody-status point to his criminal-history score increased his sentence by ten months and violated the Sixth Amendment because the sentence was not based on a prior conviction or a jury verdict.  “Other 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.”  Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63 (2000).  The “statutory maximum” 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.”  Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  Absent additional findings, the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is the maximum sentence under Blakely.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  An upward sentencing departure from the presumptive sentence violates the Sixth Amendment if it is based on findings made by the district court.  Id.

A defendant’s criminal-history score is one of the axes on the Sentencing Guidelines grid that determines the presumptive sentence.  Minn. Sent. Guidelines II.B, IV.  The criminal-history score comprises the defendant’s prior convictions, applicable juvenile record, and custody status at the time of the offense.  Minn. Sent. Guidelines II.B.  A custody-status point is assigned if the defendant was on probation or another form of release at the time of the charged offense.  Minn. Sent. Guidelines II.B.2.

Evanstad relies on Apprendi and Blakely to support his argument.  Apprendi was decided on June 26, 2000, 20 days after this court affirmed his conviction on direct appeal.  But Evenstad did not raise the Apprendi issue in his first petition for postconviction relief filed in August 2001, and he is now barred from raising it in subsequent petitions.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (affirming the dismissal of appellant’s petition for postconviction relief and stating that the court would “not consider claims which appellant raised or knew of and could have raised” in either of appellant’s two prior petitions for postconviction review).  Blakely is not subject to retroactive application on collateral review, such as a petition for postconviction relief.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  The supreme court denied Evenstad’s petition for review on August 15, 2000, and his case was final 90 days later.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that a case is final when judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari has elapsed or the petition has been finally denied); Sup. Ct. R. 13.1 (giving an appellant 90 days to file a petition for certiorari with the United States Supreme Court).  Blakely was decided on June 24, 2004, after Evenstad’s case was final, and does not apply to his sentence.

Moreover, the supreme court recently rejected the precise argument made by Evenstad that the Sixth Amendment prevents a district court from adding a custody-status point to a defendant’s criminal-history score based on judicial findings.  Because the facts relevant to a defendant’s criminal-history score flow directly from a prior conviction, “the district court’s assigning [the defendant] a custody-status point to calculate his criminal history score [does] not violate the Sixth Amendment.”  State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005). 

Evenstad also argues that the five-year conditional-release term violates the Sixth Amendment because it extends his penalty beyond the maximum guidelines sentence but is not based on a prior conviction or jury findings.  “Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, . . . [i]f the person was convicted for a violation of section 609.342 . . . , the person shall be placed on conditional release for five years, minus the time the person served on supervised release.”  Minn. Stat. § 609.109, subd. 7(a) (1998).  Ignoring the fact that neither Apprendi nor Blakely applies to Evenstad’s sentence for reasons already stated, the district court’s imposition of a mandatory five-year conditional-release term does not violate the Sixth Amendment.  See State v. Jones, 659 N.W.2d 748, 753 (Minn. 2003) (stating that the five-year conditional-release term under Minn. Stat. § 609.109, subd. 7, is permissible under Apprendi because it is “authorized on the basis of the jury verdict, and does not require any additional findings of fact to be made by the district court”).

            Affirmed.