A05-574

Pierre Slyne Cherfils, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed February 28, 2005

Affirmed

Toussaint, Chief Judge

Ramsey County District Court

File No. K4-00-96

James S. Dahlquist, 301 Fourth Avenue South, #270, Minneapolis, MN 55415 (for appellant)

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

On appeal from the denial of his postconviction petition, appellant Pierre Slyne Cherfils argues that his sentence violates his plea agreement and his Sixth Amendment 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 did not violate his plea agreement, did not increase the penalty beyond the prescribed maximum and is not subject to Blakely, we affirm the postconviction court.

D E C I S I O N

Petitions for postconviction relief are collateral attacks on judgments, which 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).

Cherfils argues that his sentence violates his Sixth Amendment rights under Apprendi and Blakely. Under Apprendi and Blakely,any fact supporting an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 U.S. at 301-03, 124 S. Ct. at 2536-37. The Apprendi and Blakely rules apply to upward durational departures under the Minnesota Sentencing Guidelines. State v. Shattuck, 704 N.W.2d 131, 142-43 (Minn. 2005). But Blakely does not apply retroactively to matters that were final before it was decided—June 24, 2004. See State v. Houston, 702 N.W.2d 268, 270, 273 (Minn. 2005).

Cherfils pleaded guilty to first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (1998). On May 24, 2000, the district court imposed a 148-month sentence, an upward durational departure from the presumptive 86-month sentence. The statutory maximum penalty for this offense was 20 years. Id.

Apprendi 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.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Cherfils’s 148-month sentence is less than the 20-year statutory maximum. See Minn. Stat. § 609.221, subd. 1 (1998). His sentence, therefore, is within the statutory maximum and does not violate his rights under Apprendi. See Houston, 702 N.W.2d at 271 (noting that before Blakely, “statutory maximum” was generally thought to mean “ceiling of the relevant statutory sentencing range”).

Cherfils’s sentence was final in 2000. See O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004) (stating that case is final when time for certiorari appeal has expired). Because Blakely was decided on June 24, 2004, and is not applicable retroactively on collateral review, Cherfils is not entitled to relief from his sentence under Blakely. See Houston, 702 N.W.2d at 273.

Cherfils also argues that the district court violated his due-process rights by imposing a sentence longer than the sentence he agreed to in the plea agreement. But the record shows that Cherfils and the state agreed to a sentence between one-and-a-half and two times the presumptive guidelines sentence of 86 months. The 148-month sentence is, therefore, within the range agreed to in the plea agreement.

Affirmed.