STATE OF MINNESOTA

IN COURT OF APPEALS

A05-957

Jerry King, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 28, 2006

Affirmed

Stoneburner, Judge

Anoka County District Court

File No. K9013925

Jerry King, MCF/Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, Seventh Floor, 2100 Third Avenue, Anoka, MN 55303 (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

STONEBURNER, Judge

Appellant challenges the denial of his petition for postconviction relief in which he argued that his sentence violated his right to a jury trial under Apprendi and Blakely. Because these cases do not apply to appellant’s sentence, we affirm.

FACTS

In September 2001, appellant was sentenced to 144 months, with five years conditional release, for his conviction of first-degree criminal sexual conduct. The district court stayed execution of sentence and placed appellant on probation with conditions. In September 2003, appellant pleaded guilty to, was convicted of, and was sentenced for a new offense. Appellant admitted that this conviction was a violation of his probation, and his 2001 sentence was executed.

Appellant petitioned for postconviction relief, requesting vacation of the five-year conditional release and his “custody status point of 1.” Appellant relied on 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), and appeared to argue that his 144-month sentence was an upward departure because “it does not conform to the federal guidelines and is a modifier to extend a prison sentence for a crime that prior to August 1st, 2000, was only 86 months.” Appellant also argued that Blakely should apply retroactively to his sentence and contended that the use of a custody-status point and the conditional-release term violated Blakely. The district court denied the petition without an evidentiary hearing, and this appeal followed.

D E C I S I O N

“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). The postconviction court’s findings receive great deference, and its decision will not be reversed unless the postconviction court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). A postconviction court’s conclusions of law are reviewed de novo. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).

I. 144-month sentence

In Apprendi v. New Jersey, the Supreme Court announced a rule 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 Supreme Court clarified this rule by holding that the “statutory maximum” as described in Apprendi 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. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004) (emphasis in original) (citations omitted). The Minnesota Supreme Court has held that Blakely applies to cases in which a defendant’s sentence is an upward durational departure from the presumptive sentence. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004) (per curiam).

The district court correctly denied appellant’s request for relief under Blakely because appellant received the presumptive guidelines sentence for the crime he committed. The sentencing guidelines provide:

When an offender has been convicted of an offense with a mandatory minimum sentence of one year and one day or more . . . [t]he presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.

Minn. Sent. Guidelines II.E. The penalty portion of the statute under which appellant was convicted provides:

Unless a longer mandatory minimum sentence is otherwise required by law or the sentencing guidelines provide for a longer presumptive executed sentence, the court shall presume that an executed sentence of 144 months must be imposed on an offender convicted of violating this section. Sentencing a person in a manner other than that described [here] is a departure from the sentencing guidelines.

Minn. Stat. § 609.342, subd. 2(b) (2000). Appellant’s 144-month sentence was authorized solely on the basis of his conviction of first-degree criminal sexual conduct, which in turn was based on the facts he admitted in his guilty plea. There were no judicially found facts that increased his punishment beyond the presumptive term. The district court did not abuse its discretion in denying the petition on the ground that appellant received a presumptive sentence and his Sixth Amendment rights were not violated.

II. Conditional-release term

Appellant also challenged the imposition of a five-year conditional release. Minn. Stat. § 609.109, subd. 7(a) (2000), provides:

Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for a violation of section 609.342 . . . the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If 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.

The district court correctly concluded that imposition of the conditional-release term does not violate the Sixth Amendment principles described in Apprendi and clarified in Blakely. In State v. Jones, the supreme court held that a conditional-release term under Minn. Stat. § 609.109, subd. 7, 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. For statutorily designated sex offenders it is a mandatory aspect of their sentence.” 659 N.W.2d 748, 753 (Minn. 2003). The supreme court held that imposition of a conditional-release term under this statute does not violate Apprendi. Id.at 754.

III. Custody-status point

Appellant further contends that he was entitled to postconviction relief because the determination of a custody-status point in connection with imposition of his sentence was also a violation of his Sixth Amendment rights under Blakely. There is no indication in the record that a custody-status point was used in the determination of appellant’s 2001 sentence. But even if a factual basis for this claim existed, the supreme court recently rejected the argument that judicial findings on the existence of a custody-status point in imposing a guidelines sentence violates Blakely. See State v. Allen, 706 N.W.2d 40, 47-48 (Minn. 2005) (noting that the existence of a custody-status point flows from the fact of a prior conviction and is essentially analogous to a prior conviction such that it does not require a jury determination and holding that the district court’s assignment of a custody-status point in determining the presumptive sentence did not violate the Sixth Amendment). There is no merit in appellant’s argument regarding a custody point.

IV. Blakely is not retroactive

The district court did not rely on nonretroactivity of Blakely in denying appellant’s petition, but we note that the supreme court’s holding that Blakely does not apply retroactively to sentences that were final before Blakely was released on June 24, 2004, is a further basis for denial of appellant’s petition. See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.