This opinion will be unpublished and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

A05-727

 

 

Stanley Warren Burch, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 25, 2006

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. 97045286

 

 

Stanley W. Burch, OID# 101571, MCF – Moose Lake, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)

 

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

 

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

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from a postconviction order vacating one of Stanley Burch’s three convictions as a lesser-included offense, Burch argues that the postconviction court abused its discretion by rejecting his additional requests to reduce his sentence, vacate another of his convictions, and grant relief under Blakely v. Washington, 542 U.S. 296, 124 S. Ct.2531 (2004).  Because the district court did not impose a separate sentence on the vacated conviction, the remaining convictions do not involve a lesser-included offense, and Blakely does not apply retroactively, we affirm.

F A C T S

            A jury found Stanley Burch guilty of first-degree attempted murder, second-degree attempted murder, and first-degree assault in October 1997.  The district court sentenced Burch to 240 months in prison on the first-degree, attempted-murder conviction but did not impose separate sentences on the two remaining convictions.  The 240-month sentence was an upward departure from the 210-month presumptive sentence under the Minnesota Sentencing Guidelines.  The district court based the departure on its finding that Burch acted with particular cruelty in committing the crime.  On direct appeal, we affirmed Burch’s convictions, and the supreme court denied Burch’s petition for further review.  State v. Burch, No. C3-98-223, 1998 WL 811556 (Minn. App. Nov. 24, 1998), review denied (Minn. Jan. 21, 1999).

            Burch petitioned for postconviction relief in December 2004 to correct or reduce his sentence under Minn. R. Crim. P. 27.03, subd. 9.  The postconviction court granted the petition in part by vacating the second-degree, attempted-murder conviction.  But the court denied Burch’s requests to vacate the assault conviction and to reduce his sentence.

Burch appeals pro se, arguing that the postconviction court abused its discretion by (1) refusing to reduce his sentence after vacating his conviction of second-degree attempted murder; (2) rejecting his argument that his assault conviction should also be vacated; and (3) declining to apply Blakely to reduce his 240-month sentence to the guidelines sentence of 210 months.

D E C I S I O N

            The postconviction court considered Burch’s petition under Minn. R. Crim. P. 27.03, subd. 9, which permits the court to “at any time . . . correct a sentence not authorized by law.”  Appellate courts will not reevaluate a sentence unless the district court abused its discretion or the sentence is not authorized by law.  Fritz v. State, 284 N.W.2d 377, 386 (Minn. 1979); see also State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (analogizing standards of review for motions brought under Minn. R. Crim. P. 27.03, subd. 9, to motions brought under its federal counterpart, Fed. R. Crim. P. 35). 

I

Burch maintains that he is entitled to a reduction of his 240-month sentence because the postconviction court vacated his lesser-included offense of second-degree attempted murder.  This argument misapprehends the district court’s original sentence.  The district court imposed sentence after the jury determined that Burch was guilty of three charges arising from his conduct of throwing sulfuric acid on a woman and then beating her and cutting her with a knife.  Consistent with Minn. Stat. § 609.035, subd. 1 (1996), which prohibits multiple sentences for the same behavioral incident, the district court sentenced Burch only on the conviction of first-degree attempted murder.  Burch did not receive separate sentences for his convictions of second-degree attempted murder and first-degree assault.

            The district court granted Burch’s postconviction request to vacate his second-degree, attempted-murder conviction because it is a lesser-included offense of the more serious conviction of first-degree attempted murder.  See id. § 609.04, subd. 1(1) (1996) (precluding additional conviction for lesser-included offense).  But vacating Burch’s lesser-included conviction of second-degree attempted murder does not affect the validity of the district court’s sentence on the first-degree, attempted-murder conviction, and Burch is not entitled to a reduction of that sentence.

II

Burch’s second argument is that the postconviction court should have vacated not only his second-degree, attempted-murder conviction, but also his first-degree-assault conviction because it is based on the same behavioral incident for which he was convicted of first-degree attempted murder. 

Burch’s argument confuses sections 609.04 and 609.035 of the Minnesota statutes.  Section 609.04 prohibits multiple convictions for charges stemming from the same behavioral incident, but only in the limited circumstance in which one of the charged offenses is a lesser-included offense of another charged offense.  Id. § 609.04, subd. 1(1).  Section 609.035, by contrast, prohibits multiple sentences for any convictions arising from the same behavioral incident.  Id. § 609.035, subd. 1. 

The postconviction court properly denied Burch’s petition to vacate his assault conviction because first-degree assault is not a lesser-included offense of first-degree attempted murder.  See State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (holding that first-degree assault is not lesser-included offense of attempted murder because assault requires great bodily harm, which is not required for attempted murder); see also Minn. Stat. §§ 609.17, .185(1), .221 (1996)(stating elements of first-degree assault and attempted first-degree murder).

III

            Burch’s final argument is that he is entitled to postconviction relief from the sentence that he received in November 1997 on the basis that, under Blakely, the 30-month upward departure from the 210-month guidelines sentence violated his Sixth Amendment right to a jury trial.  See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct.2531, 2536 (2004) (holding upward sentencing departure unconstitutional unless facts enhancing sentence were admitted by defendant or found by jury); State v. Shattuck, 704 N.W.2d 131, 141-42 (Minn. 2005) (holding Blakely applies to sentences imposed under Minnesota Sentencing Guidelines).  The supreme court has held that Blakely does not apply retroactively to convictions and sentences that became final before the issuance of Blakely on June 24, 2004.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  The supreme court determined that Blakely announced a new rule, but specifically held that Blakely did not announce a “watershed” rule and was therefore applicable only to cases that were not yet final when it was released.  Id. 

This court affirmed Burch’s convictions in 1998, and the supreme court denied further review in 1999.  State v. Burch, No. C3-98-223, 1998 WL 811556 (Minn. App. Nov. 24, 1998), review denied (Minn. Jan. 21, 1999).  Burch’s convictions were therefore final in 1999.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that conviction is final when judgment of conviction has been entered, availability of appeal has been exhausted, and time to petition for certiorari has elapsed or petition has been denied).  Because Burch’s convictions were final before the Blakely decision was issued, his sentence is constitutionally permissible and the district court did not err by denying his petition for resentencing.

            Affirmed.