STATE OF MINNESOTA

IN COURT OF APPEALS

A05-489

Scott Dean Rodahl, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed May 23, 2006

Affirmed in part, reversed in part, and remanded.

Toussaint, Chief Judge

Red Lake County District Court

File No. K9-02-110

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, 2221 University Ave., S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota St., St. Paul, MN 55102; and

Daniel Geller, Red Lake County Attorney, Lower Level-Courthouse Annex, Post Office Box 416, Red Lake Falls, MN 56750 (for respondent)

Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

On appeal from denial of his postconviction petition, appellant Scott Dean Rodahl argues that the double durational departure violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that his conviction must be vacated because his rights under the Interstate Agreement on Detainees (IAD) were violated. We affirm in part, reverse in part, and remand.

FACTS

In July 2002, appellant was charged in Red Lake County, Minnesota, with one count of issuing dishonored checks. On April 29, 2003, while appellant was serving a sentence in a North Dakota jail, he signed a waiver of extradition to Minnesota. Appellant made an appearance in Red Lake County District Court on June 30, 2003, for a combined Rule 5 and Rule 8 hearing. He was then apparently returned to jail in North Dakota.

Appellant pleaded guilty to the Minnesota bad-check charge in July 2003. He was sentenced to 45 months in prison, more than twice the presumptive sentence. The district court supported the departure under the career-offender statute by finding that appellant had committed five or more prior felonies and that his current offense was committed as part of a pattern of criminal conduct.

Appellant did not file a direct appeal. But, in October 2004, he filed a postconviction petition claiming the upward departure violated his right to a jury trial under Blakely. Appellant also claimed that he was denied the effective assistance of counsel when his attorney failed to move to dismiss the charge based on a violation of the IAD “anti-shuttling” provision. The district court denied the petition, ruling that Blakely did not apply retroactively to appellant’s sentence and that appellant was not prejudiced by his attorney’s failure to raise an IAD challenge.

D E C I S I O N

1. Application of Blakely

Appellant argues that the greater-than-double upward departure, imposed under the career-offender statute, violated his Sixth Amendment right to a jury trial.

In Blakely, the Supreme Court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] 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). Appellant argues that his Sixth Amendment rights under Blakely were violated when his sentence was increased based on facts not found by a jury beyond a reasonable doubt, and that Blakely applies retroactively to his 2003 sentence. The determination whether a decision applies retroactively is a legal question, which this court reviews de novo. State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).

“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applied to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989). A case becomes final when “the availability of 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, 335 (Minn. 2004).

Appellant did not file a direct appeal. His conviction, therefore, became final in November 2003, when his time to file a direct appeal expired. Thus, Rodahl’s conviction became final before Blakely was released.

Appellant acknowledges that the supreme court in Houston held that Blakely does not apply retroactively to convictions that became final between the release of Apprendi and the release of Blakely. See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (holding Blakely announced a new rule). In Houston, the supreme court also held that Blakely was not a “watershed” rule and, therefore, it is applied retroactively only to cases that were on direct review when it was released. Id.; see also Petschl, 692 N.W.2d at 472 (“Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that it is not a watershed rule subject to retroactive application on collateral review.”). Appellant does not suggest any way to distinguish Houston, and we conclude that Houston bars iss postconviction claim for sentencing relief.

2. IAD Violation

Appellant also argues that the postconviction court erred in declining to vacate his 2003 conviction because his attorney failed to seek dismissal of the complaint based on a violation of the “anti-shuttling” provision of the IAD.

The “anti-shuttling” provision cited by appellant is triggered when a prisoner files a request for final disposition. Appellant filed a waiver of extradition, but there is no evidence in the record that he filed a request for final disposition. Although a request for final disposition constitutes a waiver of extradition, a wavier of extradition does not seek disposition of criminal charges in another state and does not constitute a request for final disposition. Cf. State v. Koehler, 448 N.W.2d 886, 887 (Minn. 1989) (noting that request for final disposition constitutes waiver of extradition), review denied (Minn. Feb. 9, 1990). But there is another “anti-shuttling” provision in the IAD that does not require a request for final disposition. It is triggered when a prosecuting attorney in the state that has lodged the detainer (here, Minnesota) presents “a written request for temporary custody or availability” to the authorities in the state where the prisoner is being held. Minn. Stat. § 629.294, subd. 1, art. IV(a)(e) (2004).

It is unclear from the record whether the Red Lake County Attorney, or any other Minnesota official, made a written request to North Dakota for temporary custody of appellant. The Nebraska Supreme Court has held that the article IV(e) “anti-shuttling” provision was not invoked when Nebraska did not initiate a request for temporary custody. State v. Reed, 668 N.W.2d 245, 252 (Neb. 2003). Here, there is no written request for temporary custody in the file, and it is not clear how appellant went from North Dakota custody to the Red Lake County Jail without a written request from the prosecution. It is possible, however, that the prosecutor never requested that North Dakota release appellant to Minnesota custody. Without such a request, the “anti-shuttling” provision in article IV(e) would not apply.

The district court, in denying relief, relied on State v. Lewis, 422 N.W.2d 768, 771 (Minn. App. 1988) (holding that IAD should not be “mechanically applied” without regard to purpose of agreement). The district court concluded that appellant was not prejudiced by his attorney’s failure to raise a challenge based on the “anti-shuttling” provision because appellant’s return to North Dakota “did not frustrate [the] purpose [of the IAD].”

But the Lewis reading of the IAD “anti-shuttling” provision has been effectively overruled. See Alabama v. Bozeman, 533 U.S. 146, 156, 121 S. Ct. 2079, 2086 (2001) (holding that IAD cannot be construed in terms of purpose to make violation of “anti-shuttling” provision “de minimis, technical, or harmless”). Bozeman rejected the state’s argument that a one-day violation of the “anti-shuttling” provision could be overlooked because it did not interfere with the prisoner’s rehabilitation programs in prison and held that the IAD, as an interstate compact sanctioned by Congress, is subject to federal construction just like any other federal law. Id. at 149, 122 S. Ct. at 2082.

A two-part standard applies to a claim of ineffective assistance of counsel. The defendant must first show that counsel’s representation fell below an objective standard of reasonableness and second that, but for counsel’s errors, the result of the proceeding would have been different. State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). The second prong is met if the defendant shows that but for counsel’s errors he would not have pleaded guilty. Id. We conclude that if the charges against appellant had been dismissed based on the alleged IAD violation, appellant would not have pleaded guilty.

Appellant must still show that his attorney erred in failing to raise the issue because the IAD “anti-shuttling” provision was violated. Because the record does not disclose whether there was a request for temporary custody of appellant that would have triggered the “anti-shuttling” provision in article IV(e) of the IAD, we remand that issue to the postconviction court.

The record indicates that appellant, who wanted to return to work-release status in North Dakota, may have requested to return there. That could constitute an implicit waiver of any “anti-shuttling” claim. See generally State v. Wells, 638 N.W.2d 456, 460 (Minn. App. 2002) (noting that 180-day IAD speedy-trial period may be waived even without explicit waiver by defendant), review denied (Minn. Mar. 19, 2002). Appellant could also have explicitly waived the “anti-shuttling” protection at the Rule 5/8 appearance. There is no transcript of that appearance in the file. Therefore, we also remand to the postconviction court to decide whether appellant waived the “anti-shuttling” protection of the IAD, either implicitly or explicitly.

Affirmed in part, reversed in part, and remanded.