A05-583

State of Minnesota,

Respondent,

vs.

Jerome Norman Micholski,

Appellant.

Filed February 28, 2005

Affirmed

Toussaint, Chief Judge

Morrison County District Court

File Nos. K0-02-629, K3-02-1161, and K9-02-1455

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

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Hudson, Judge.

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

TOUSSAINT, Chief Judge

Appellant Jerome Norman Micholski challenges denial of his postconviction petition, arguing that his sentence violates 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 Micholski’s sentence is within the statutory maximum and Blakely is not applicable retroactively on collateral review, we affirm.

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).

Micholski pleaded guilty to two counts of theft and to one count of receiving stolen property. On March 24, 2003, the district court imposed a 78-month sentence, an upward durational departure from the presumptive 26-month sentence, for each offense, to run concurrently. The statutory maximum penalty for theft and for receiving stolen property is 20 years. Minn. Stat. งง 609.52, subd. 3(1) (2000 & 2002), .53, subd. 1 (2002). On September 16, 2004, Micholski petitioned for postconviction relief from his sentence, relying on Apprendi and Blakely. The district court denied his postconviction petition.

Micholski 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, 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 the date of that decision—June 24, 2004. See State v. Houston, 702 N.W.2d 268, 270, 273 (Minn. 2005).

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. Micholski’s 78-month sentence is less than the 20-year statutory maximum. See Minn. Stat. งง 609.52, subd. 3(1), .53, subd. 1. 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”).

Micholski’s sentence was final in 2003. 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, Micholski is not entitled to relief from his sentence under Blakely. See Houston, 702 N.W.2d at 273.

Affirmed.