This opinion will be unpublished and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

A05-428

 

 

Leroy Bogan, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed February 14, 2006

Affirmed

Huspeni, Judge*

 

 

Ramsey County District Court

File Nos. K4-01-1890 & K5-01-1252

 

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (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 County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In this appeal from a denial of postconviction relief, appellant argues that his sentence, an upward durational departure from the presumptive guidelines sentence, violated the Sixth Amendment, as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Because neither Blakely nor Apprendi applies to appellant’s sentence, we affirm.

FACTS

            In April 2001, the state charged appellant Leroy Bogan with third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2000).  One month later, the state charged Bogan with two counts of third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2000).  In accordance with a plea agreement involving both cases, Bogan pleaded guilty to two counts of third-degree controlled-substance crime, and the state agreed to dismiss the remaining count and to recommend a sentence of 108 months for each offense; sentences to be served concurrently.

            On September 18, 2001, the district court sentenced Bogan to 108 months, an upward durational departure from the presumptive guidelines sentencing range of 55 to 59 months.  The district court made findings of aggravating factors to support this upward durational departure.  Bogan did not file a direct appeal.

            In September 2004, Bogan petitioned for postconviction relief from his sentence, relying on Apprendi and Blakely.  The district court denied the postconviction petition, and this appeal followed.

D E C I S I O N

I.

            The state argues that because Bogan expressly declined to seek retroactive application of Blakely in his petition for postconviction relief, he is not entitled to raise this claim for the first time on appeal. 

This court will generally not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  The record reveals, however, that this issue was argued by both parties and considered by the district court.  In his memorandum supporting his petition, Bogan states, “Petitioner does not seek retroactive application of Blakely.  Rather, he seeks prospective application of the rule announced in Apprendi, which the Blakely decision makes clear applies to departures from the presumptive sentence under the sentencing guidelines.”  The state answered Bogan’s petition by observing, “Notwithstanding his disclaimer, Petitioner seeks retroactive application of the rule announced in Blakely . . . .”  And the district court noted in its order denying postconviction relief that Blakely did not apply retroactively to convictions that were final before Blakely was decided.  Therefore, because both parties argued the issue before the district court and because that court addressed the issue in its order denying postconviction relief, we review Bogan’s claim on its merits.

II.

            Petitions for postconviction relief are collateral attacks on judgments that carry a presumption of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court will not disturb the decision of a postconviction court 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, such as whether a decision applies retroactively.  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 (U.S. June 13, 2005).

Bogan argues that Blakely did not announce a new rule, and he is, therefore, entitled to benefit from the rule in Apprendi as described in Blakely.  He argues in the alternative that Blakely did announce a watershed rule of criminal procedure that applies retroactively to his sentence.  There is no merit to either of Bogan’s alternative arguments.

In Apprendi v. New Jersey, 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.”  530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  In Blakely v. Washington, the United States Supreme Court specified that “the ‘statutory maximum’ for Apprendi purposes 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.”  542 U.S. 296, ___, 124 S. Ct. 2531, 2537 (2004) (emphasis omitted).  Blakely applies to upward durational departures under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  But the Minnesota Supreme Court has concluded that Blakely did announce a new rule of law, but not a watershed rule of constitutional criminal procedure, and does not apply retroactively to matters that were final before Blakely was filed on June 24, 2004.  State v. Houston, 702 N.W.2d 268, 270, 273 (Minn. 2005). 

            Here, Bogan was sentenced on September 18, 2001, and he did not perfect an appeal within 90 days.  See Minn. R. Crim. P. 28.02, subd. 4(3) (requiring party to appeal felony conviction within 90 days).  Therefore, Bogan’s case was final on December 17, 2001.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that a case is pending until availability of direct appeal has expired).  Because Bogan’s case was final before Blakely was decided, we conclude that he is not entitled to application of the rule established in Blakely.

Further, in addressing specifically Bogan’s claim to relief under Apprendi, we note that before Blakely, courts looked to the applicable statute, not to the sentencing guidelines, to determine the statutory maximum sentence for an offense.  See, e.g., State v. McCoy, 631 N.W.2d 446, 451 n.1 (Minn. App. 2001) (deciding that Apprendi was inapplicable to the defendant’s sentence, which was less than half of the statutory maximum sentence of 25 years).  Here, the statutory maximum sentence for third-degree controlled-substance crime was 240 months.  Minn. Stat. § 152.023, subd. 3(a) (2000).  Bogan’s sentence is 108 months.  Because this sentence does not exceed the statutory maximum sentence, no relief is available to Bogan under Apprendi.

            Affirmed.