This opinion will be unpublished and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

A05-607

 

Larry Roosevelt Noble, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­­­March 28, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 2024799

 

Larry Roosevelt Noble, OID #209799, MCF, 7600 525th Street, Rush City, MN 55069 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Wright, 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 petition for postconviction relief, arguing that (1) the district court abused its discretion by refusing to hold an evidentiary hearing; and (2) his sentence constituted an upward durational departure in violation of his constitutional rights under Blakely.  Because the district court did not abuse its discretion in denying an evidentiary hearing, and appellant’s sentence does not violate his constitutional rights, we affirm.

FACTS

            In March 2002, following a heated argument, appellant Larry Roosevelt Noble shot his pregnant girlfriend in the back.  Appellant was charged with attempted second-degree murder, in violation of Minn. Stat. §§ 609.19, subd. 1(1), .17 (2000), and unlawful possession of a handgun, in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). The complaint was later amended to add a count of attempted second-degree murder of the victim’s unborn child, in violation of Minn. Stat. §§ 609.2662(1), .17 (2000).  Following a jury trial, appellant was convicted of all charges.

            In August 2002, the district court sentenced appellant to 336 months in prison, which included a presumptive 183-month sentence for the attempted second-degree murder of the victim; a permissive consecutive 153-month sentence for the attempted second-degree murder of the victim’s unborn child, which was also the presumptive duration; and a concurrent 60-month sentence for the handgun conviction. 

Subsequently, appellant filed a direct appeal challenging his convictions and sentences.  This court affirmed in State v. Noble, 669 N.W.2d 915, 918 (Minn. App. 2003), and the Minnesota Supreme Court denied review on December 23, 2003.  Appellant did not file a petition for writ of certiorari to the United States Supreme Court.

            In December 2004, appellant filed a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1 (2004), arguing that (1) he was entitled to an evidentiary hearing, which would establish that the victim was not pregnant on the day of the shooting; and (2) his sentence violated his Sixth Amendment rights under Blakely.  The district court denied appellant’s petition for postconviction relief, concluding that appellant was not entitled to a hearing because he failed to allege facts entitling him to an evidentiary hearing.  But the district court did not address whether the sentence violated appellant’s Sixth Amendment rights.  This appeal follows.

D E C I S I O N

I.

Appellant raises two issues on appeal.[1] First, appellant argues that the district court erred in refusing to hold an evidentiary hearing based on the allegation in his postconviction petition that the victim was not pregnant on the day of the shooting.
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 summary denial of a postconviction court absent an abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

The district court must grant an evidentiary hearing for a postconviction appeal “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief[.]”  Minn. Stat. § 590.04, subd. 1 (2004).  An evidentiary hearing is necessary when there is a material issue of fact in dispute.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle him to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  A petitioner seeking postconviction relief bears the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (2004).  “To meet that burden, a petitioner’s allegations must be supported by more than mere argumentative assertions that lack factual support.”  Powers, 695 N.W.2d at 374.  Thus, if a petitioner only makes general allegations of ineffectiveness of counsel, without alleging facts that, if proved, would entitle him to relief, then a district court may deny the petitioner an evidentiary hearing.  McDonough v. State, 675 N.W.2d 53, 56 (Minn. 2004). 

Here, appellant asserts that the victim was not pregnant, but offers no evidence in support of this assertion.  Rather, appellant’s petition contains nothing more than the allegation that “reasonable investigation would have revealed that [the victim] . . . was not pregnant.”  Given that appellant was found guilty of attempted murder of an unborn child, appellant was required to do more than allege what a “reasonable investigation” would disclose in order to obtain an evidentiary hearing.  Because appellant did not meet his burden in establishing that there is a material fact in dispute, the district court did not abuse its discretion in denying appellant’s request for an evidentiary hearing.

II.

Second, appellant contends that his sentence violates his Sixth Amendment rights because the aggravating factors supporting the upward durational departure were not found by a jury.  Appellant’s arguments rely on the United States Supreme Court’s holding in 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).

In Apprendi, 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.  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 (emphasis in original) (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).  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 (Minn. 2005).  A case is final when “the availability of a direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the [United States] Supreme Court has been filed and finally denied.”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). 

Here, appellant was convicted and sentenced in 2002.  This court affirmed the conviction and sentence, and the supreme court denied review on December, 23, 2003.  The time for petition for writ of certiorari to the United States Supreme Court elapsed on or about March 23, 2004, at which point appellant’s sentence became final.  See Sup. Ct. R. 13.1 (providing that a petition for a writ of certiorari is timely when filed within 90 days after entry of judgment or denial of discretionary review by the state court of last resort).  Because appellant’s conviction was final months before Blakely’s effective date, he cannot benefit from the rule enunciated therein. 

Further, because appellant’s consecutive sentence was permissive and there was no upward departure, the rule of law enunciated in Blakely has no application to appellant’s sentence.  In State v. Senske, we held that Blakely does not apply to consecutive sentences when the offenses are “crimes against persons” because such sentences are permissive under Minnesota Sentencing Guidelines. 692 N.W.2d 743, 748–49 (Minn. App. 2005), review denied (Minn. May 17, 2005); see also Minn. Sent. Guidelines II.F.02 (aconsecutive sentence is permissive for “[m]ultiple current felony convictions for crimes against persons”).  We reasoned that

Blakely, while presuming a “standard range” sentence (or “presumptive sentence” in Minnesota) that is determined solely by the jury’s verdict, nevertheless requires that the jury determine “all facts legally essential to the punishment.” . . . But here, the “punishment” involved two separate sentences, and the jury does not determine all facts essential to the imposition of separate sentences.

 

Id. at 748 (citation omitted).

            Appellant was given consecutive sentences for the crimes of attempted murder of the victim; and attempted murder of the victim’s unborn child.  See Minn. Stat. § 609.2662 (2000) (defining second-degree murder of unborn child); see also Minn. Stat. § 609.2691 (2000) (“[A] prosecution for or conviction under sections 609.2661 to 609.268 [crimes against unborn child] is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”); see also State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990) (rejecting a claim that Minnesota’s unborn-child-homicide statutes violate Equal Protection because fetuses are not “persons”).  Therefore, appellant’s consecutive sentences for the two offenses against the mother and her unborn child were not a departure requiring a determination of aggravating factors by a jury.  See Senske, 692 N.W.2d at 748–49.

Affirmed.