This opinion will be unpublished and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

A05-854

 

Keith Allen Lind, petitioner

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 4, 2006

Affirmed

Shumaker, Judge

 

Carlton County District Court

File No. K1-96-564

 

 

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Pubic Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Thomas H. Pertler, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (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

SHUMAKER, Judge

            On appeal from denial of his postconviction petition, appellant argues that (1) the double durational departure violated his Sixth Amendment right to a jury 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); and (2) even if Apprendi and Blakely do not apply, the double durational departure was improper because there were no aggravating factors.  Because appellant’s arguments are without merit, we affirm. 

FACTS

In 1998, appellant Keith Allen Lind was convicted of two counts of criminal sexual conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(a) (1994), and the district court imposed a 172-month sentence, which was a double durational departure from the presumptive sentence.  The court found that factors, such as the victim’s vulnerability, the psychological impact on the victim, the multiple instances of abuse, violation of the victim’s zone of privacy, and Lind’s position of authority were substantial and compelling reasons for a departure. 

In 2002, Lind filed a combined direct and postconviction appeal with this court, claiming he was entitled to a new trial because the district court erred in its evidentiary rulings and abused its discretion in denying postconviction relief on claims of recantation, newly discovered medical evidence, and ineffective assistance of counsel.  This court affirmed the district court’s decision.  Lind v. State,2002 WL 1544820 (Minn. App. July 16, 2002), review denied (Minn. Sept. 25, 2002).  Lind did not file a petition for certiorari to the U.S. Supreme Court.  In 2004, Lind filed a pro se petition for postconviction relief, claiming that Blakely should be applied retroactively to his sentence.  The district court denied the petition on the grounds that the conviction was final prior to Blakely and that Blakely could not be applied retroactively to cases that had already become final.  This appeal follows.

D E C I S I O N

            Relying on Apprendi v. New Jersey and Blakely v. Washington, Lind first argues that the district court’s double durational departure violated his Sixth Amendment right to a jury trial because the determination of aggravating factors justifying a departure was not based on a prior conviction or a jury verdict.  Lind’s arguments are without merit.

            “Other 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.”  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  The “statutory maximum” 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.”  Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  Absent additional findings, the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is the maximum sentence under Blakely.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  An upward durational departure from the presumptive sentence violates the Sixth Amendment if it is based on findings made by the district court.  Id. 

            First, Lind is barred from raising the Apprendi issue today because he never raised it in his first petition for postconviction relief in January 2001, seven months after Apprendi was decided.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (stating that the court would “not consider claims which appellant raised or knew of and could have raised” in either of his two prior petitions for postconviction review). 

Furthermore, the supreme court has determined that Blakely is not subject to retroactive application after a case is final.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). 

Here, Lind’s conviction was final 90 days after the supreme court denied his petition for review on September 25, 2002.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that a case is final when judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari has elapsed or the petition has been finally denied); Sup. Ct. R. 13.1 (allowing 90 days for appellants to file petitions for certiorari with the United States Supreme Court).  Blakely was decided on June 24, 2004, 18 months after Lind’s case was final. 

Lind next argues that even if Apprendi and Blakely do not apply, the double departure is based on impermissible grounds.  Lind’s claim that the double departure was based on impermissible grounds is barred because Lind did not raise this issue in his previous direct appeal.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Lind claims that he could not have raised this issue because Taylor v. State, 670 N.W.2d 584 (Minn. 2003), decided after his case became final, presents a new law stating that departure is not justified on grounds of victim vulnerability due to the perpetrator’s position of authority and victim’s age.  But Taylorrelied on well-settled law that had been decided prior to Lind’s case.  See id. at 589 (citing State v. Hagen, 317 N.W.2d 701, 703 (Minn. 1982), which holds that age and position of trust unavailable as departure factors for criminal sexual contact with child under age of 13 and actor is 36 months older); State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1998) (stating that youth and position of authority impermissible grounds for departure from presumptive sentence for first-degree criminal sexual conduct).

Furthermore, the district court also based the departure on invasion of the victim’s zone of privacy and the psychological impact the victim suffered, which have been held as permissible grounds for departure.  See, e.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (noting numerous cases holding invasion of victim’s zone of privacy to be an aggravating factor in considering departure); see also State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (stating psychological harm is an aggravating factor), review denied (Minn. Feb. 28, 1990).  For these reasons, we affirm the denial of postconviction relief.

            Affirmed.