This opinion will be unpublished and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

A05-525

 

State of Minnesota,

Respondent,

 

vs.

 

Peter Gerard Lonergan,

Appellant.

 

Filed ­­­February 21, 2006

Affirmed

Dietzen, Judge

 

Dakota County District Court

File No. K7-91-1490

 

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

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, 1560 W. Highway 55, Hastings, MN 55033 (for respondent)

 

Peter G. Lonergan, OID #134611, 1000 Lakeshore Drive, Moose Lake, MN 55767 (appellant pro se)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court’s denial of his postconviction motion to reduce or correct his sentence, arguing that the sentence was an upward durational departure based on impermissible aggravating factors and in violation of his constitutional rights 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).  Because appellant’s sentence does not violate his constitutional rights and is supported by permissible aggravating factors, we affirm.

FACTS

 

            In September 1991, appellant Peter Gerard Lonergan was charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342 (1990), following a report of sexual abuse by an eight-year old child that appellant babysat.  Appellant was subsequently convicted of the offense after a retrial.

Appellant was sentenced to 268 months in prison, double the presumptive guidelines sentence.  The district court based the upward durational departure on a multitude of aggravating factors, including vulnerability and age of the victim; appellant’s violation of a position of trust; multiple acts of abuse; terrorization of the victim, including use of an electrical shocking device and a knife; appellant’s threats to kill the victim if he told of the abuse; and appellant’s predatory pattern of behavior. 

            Subsequently, appellant filed a direct appeal challenging his conviction and sentence.  This court affirmed in State v. Lonergan, 505 N.W.2d 349 (Minn. App. 1993), and the Minnesota Supreme Court denied review on October 19, 1993.  The time for petition for writ of certiorari to the United States Supreme Court expired on January 19, 1994.  

            In April 1997, appellant filed a petition for a writ of habeas corpus to the Federal District Court of Minnesota.  His petition was denied on all grounds.  The Eighth Circuit declined to review this decision. 

            In February 2003, appellant filed a petition for postconviction relief.  The district court denied the petition, finding that appellant raised, or knew of and had the opportunity to raise, all of the claims raised in his petition at his prior appeal.  This court affirmed the district court in Lonergan v. State, No. A03-453 (Minn. App. Dec. 16, 2003),and the Minnesota Supreme Court denied review. 

            In July 2004, appellant filed a motion for correction or reduction of his sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that the aggravating factors used to support the upward durational departure were improper and violated his constitutional rights 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).  The district court denied the motion on the basis that rule 27.03 was not the proper avenue for relief, and because appellant was not entitled to benefit from the rule enunciated in Apprendi and Blakely.  Appellant filed a motion for reconsideration, which was also denied.  This appeal follows.

D E C I S I O N

I.

 

Appellant raises two arguments on appeal.  First, appellant argues that his sentence violates his constitutional rights because the aggravating factors supporting the upward durational departure were not found by a jury.  Although appellant asserts a variety of constitutional arguments, his arguments rely on the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Respondent contends that Blakely does not apply retroactively to appellant’s sentence, which was final prior to Blakely’seffective date. 

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the United States Supreme Court held that any fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Apprendi, 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 (quotation omitted).  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).   

Further, the Minnesota Supreme Court recently held that while the Blakely decision created a new rule of constitutional criminal procedure, it is not a “watershed” rule and, therefore, will not be applied retroactively to cases that were final prior to Blakely’s effective date of June 24, 2004.  State v. Houston, 702 N.W.2d 268, 273, 274 (Minn. 2005).  A case is final when “the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied.”  O’Meara v. State, 679 N.W.2d 334, 339-40 (Minn. 2004). 

Here, appellant was convicted and sentenced in 1992.  This court affirmed the conviction and sentence, and the Minnesota Supreme Court denied review on October 19, 1993.  The time for petition for writ of certiorari to the United States Supreme Court elapsed on January 19, 1994.  Thus, appellant’s conviction was final long before Blakely’s effective date, and he cannot benefit from the rule enunciated therein. 

II.

Second, appellant argues that he is entitled to a reduction of his sentence because the aggravating factors used to support the upward durational departure constitute an abuse of discretion pursuant to the Minnesota Supreme Court’s decision in Taylor v. State, 670 N.W.2d 584 (Minn. 2003). 

Prior to Blakely, the district court had broad discretion to depart from a presumptive sentence if aggravating circumstances were present.  State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996).  In such cases, we defer to the district court if there is adequate support for its reasons or if there is sufficient evidence in the record.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  

            Respondent contends that appellant is barred from challenging his sentence under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).  Knaffla provides: “where 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.”  Id. at 252, 243 N.W.2d at 741.  Although this court has not decided whether the Knaffla rule applies to motions under Minn. R. Crim. P. 27.03, subd. 9, we conclude that its application is appropriate under the circumstances presented here.[1]  See State v. Stutelberg, 435 N.W.2d 632, 634-35 (Minn. App. 1989) (acknowledging that a rule 27.03, subd. 9 motion may be construed as a postconviction proceeding, but questioning whether a Knaffla rule would apply to such a motion).  Appellant previously challenged the propriety of the upward durational departure on direct appeal, and then was barred from raising the same issue in a subsequent petition for postconviction relief.  Consequently, we will not permit appellant to circumvent Knaffla,and raise the same issue for the third time, simply because he utilized a different procedural mechanism. 

Nonetheless, appellant’s argument regarding the impropriety of the aggravating factors is without merit.  Appellant relies on the Taylordecision, which held that a victim’s vulnerability as to age, the defendant’s position of trust, and use of prior uncharged offenses were inappropriate bases for departure under certain circumstances.  670 N.W.2d at 588-89.  Even accepting appellant’s argument that three of the aggravating factors relied upon by the district court are now improper pursuant to Taylor, other factors cited by the district court, i.e., terrorization of the victim, threatening to kill the victim, and use of a shocking device and knife, constitute “substantial and compelling circumstances” for which the court could depart durationally.  See Minn. Sent. Guidelines II.D; see also State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981) (concluding that threats and gratuitous infliction of pain constitute aggravating factors supporting departure).  And the district court needs only one valid basis to support an upward departure from the sentencing guidelines.  See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984).  Therefore, the district court’s imposition of a double durational departure does not constitute an abuse of discretion.   

Affirmed.