This opinion will be unpublished and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

A05-534

 

State of Minnesota,
Respondent,

vs.

Bennett Winston White,
Appellant.

 

Filed March 14, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 03065174

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Margaret Millington, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges his sentence because the upward departure was not based on findings by a jury or his own admissions, as required by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because appellant’s conviction was final before Blakely was decided, we affirm.

FACTS

            On January 9, 2004, appellant Bennett White pleaded guilty to one count of criminal damage to property in the first degree, in violation of Minn. Stat. § 609.595, subd. 1 (2002).  At the plea hearing, appellant admitted that on September 7, 2003, he caused damage to another car by intentionally ramming it with his car.  The plea agreement provided for a 24-month sentence (a double upward departure), a stay of execution of the sentence, and probation.  The sentencing hearing occurred on January 29, 2004.[1]

            Appellant violated his probation and was brought before the district court on three different occasions.  Appellant’s third probation-violation hearing was held on December 15, 2004.  The district court offered to partially revoke the stay and leave some conditions in place, but appellant requested that the district court revoke the stay entirely.  The district court revoked the stay and executed appellant’s sentence.  This appeal follows. 

D E C I S I O N

            The issue before us is whether Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), applies to appellant’s case.  This court reviews the constitutional issue presented by the application of Blakely v. Washington de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  Whether Blakely applies retroactively is a legal question that is reviewed de novo.  State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

            In Blakely v. Washington, the United States Supreme Court held that a district court can only impose the maximum sentence warranted by facts determined by a jury or admitted by the defendant.  542 U.S. at 303, 124 S. Ct. at 2537.  The Minnesota Supreme Court held that Blakely was a new rule of constitutional criminal procedure.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  New rules are only applied retroactively to cases “pending on direct review or not yet final.”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987)).  “A case is final when a ‘judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.’”  Id. (quoting Griffith, 479 U.S. at 321 n.6, 107 S. Ct. at 712 n.6).  

            In State v. Losh, this court considered a challenge under Blakely.  694 N.W.2d 98, 99 (Minn. App. 2005), review granted (Minn. June 28, 2005).  Losh was sentenced on September 18, 2003, but the district court stayed the execution of the sentence.  Id. at 100.  Losh did not file a direct appeal within the 90-day period from that date.  Id.  In March 2004, the district court revoked Losh’s probation and stay of execution, and she filed an appeal from that decision in June 2004.  Id.  Blakely was decided June 24, 2004.  542 U.S. at __, 124 S. Ct. at 2531.  This court held that Blakely did not apply to Losh’s case because her conviction was final at the time Blakely was decided.  Losh, 694 N.W.2d at 101. 

            Appellant acknowledges the Losh decision, but requests that this court adopt a different approach.  Appellant argues that retroactivity analysis should focus on the date a sentence becomes final, rather than the date a conviction becomes final, citing State v. Fields, 416 N.W.2d 734 (Minn. 1987).  In Fields, the court held that a defendant could challenge his sentence for the first time by making a motion at the hearing where his stay of execution was revoked, rather than requiring either a direct appeal from the judgment of conviction or a postconviction petition.  Id. at 736.  But appellant’s argument was rejected in Losh:

[T]he retroactivity analysis of Griffith focuses on when the conviction becomes final, not when the sentence may no longer be modified. In Minnesota, a sentence may be modified at any time. Minn. R. Crim. P. 27.03, subd. 9; see also State v. Hockensmith, 417 N.W.2d 630, 632 (Minn. 1988) (allowing a defendant to challenge an upward durational departure at a probation-revocation hearing); State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987) (same). But the fact that modification of a sentence is possible does not mean a judgment is not final for the purpose of precluding the retroactive application of a new rule.

 

694 N.W.2d at 101 n.2. 

            In State v. Beaty, the district court stayed imposition of the appellant’s sentence, and vacated the stay of imposition the day before Blakely was decided.  696 N.W.2d 406, 408-09 (Minn. App. 2005).  The appellant then filed an appeal within 90 days of the revocation of the stay of imposition.  Id. at 411.  We held that the appellant’s sentence was not final for retroactivity purposes because he could not have known of the upward departure until the stay of imposition was revoked and that therefore Blakely applied.  Id.  But we specifically noted that the decision did not conflict with the holding in Losh, which involved a stay of execution, rather than a stay of imposition.  Id. at n.2.       

            Here, appellant was sentenced on January 29, 2004, and execution of his sentence was stayed.  Appellant’s conviction became final 90 days after he was sentenced because he did not file an appeal within those 90 days.  See Minn. R. Crim. P. 28.02, subd. 4(3).  Blakely was decided on June 24, 2004.  542 U.S. at __, 124 S. Ct. at 2531.  The fact that appellant’s stay of execution was later revoked has no effect on the finality of his conviction.  See Losh, 694 N.W.2d at 101.  Because appellant’s conviction was final more than two months before Blakely was decided, the rule announced in Blakely does not apply to appellant’s sentence.                  

            Affirmed.