This opinion will be unpublished and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

A05-1716

 

Michael Walton Hinton, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 25, 2006

Affirmed

Shumaker, Judge

 

Faribault County District Court

File No. K8-01-239

 

 

Michael Walton Hinton, #207722, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

 

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

 

Brian D. Roverud, Faribault County Attorney, 412 North Main, P.O. Box 5, Blue Earth, MN 56013 (for respondent)

 

 

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant contends that the district court’s upward durational departure from the presumptive sentence for second-degree assault violated the plea agreement, was without a proper basis, and violated the Apprendi rule.  Because the court did not err in sentencing appellant, we affirm.

FACTS

Appellant Michael Walton Hinton was charged with three counts of first-degree criminal sexual conduct, one count of second-degree assault with a dangerous weapon, and one count of felony domestic assault.  He pleaded not guilty and demanded a jury trial on all charges.

On the second day of the trial, Hinton agreed to plead guilty to second-degree assault under Minn. Stat. § 609.222, subd. 1 (2000), which provides a maximum sentence of seven years, in return for the dismissal of all other charges.  He also agreed that the court could impose the maximum sentence under the assault statute, and he acknowledged that such a sentence would be an upward durational departure from the presumptive sentence of 39 months.  The bases for the departure were that Hinton committed the assault by threatening his wife with a knife in her home and in full view of the parties’ children, and that he showed no remorse for his crime.

On September 24, 2001, the district court sentenced Hinton in accordance with the plea agreement.

Thereafter, Hinton petitioned for postconviction relief four times, alleging that a requirement that he must register as a sex offender violated the plea agreement, that there were no grounds for the upward sentencing departure, and that the departure violated his right to a jury trial under Apprendi v. New Jersey.  The district court denied all petitions, and Hinton raises the same issues on appeal.

D E C I S I O N

This court reviews a postconviction order to determine whether there is sufficient evidence to sustain the postconviction court’s findings.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The court’s decision will not be disturbed absent a showing of abuse of discretion.  Id.  The postconviction court may deny relief if the petition shows “conclusively [that] the petitioner is not entitled to relief.”  Ives v. State, 655 N.W.2d. 633, 635 (Minn. 2003).

Sex-Offender Registration

Hinton was charged with first-degree criminal sexual conduct in violation of various subdivisions of Minn. Stat. § 609.342 (2000).  Although those charges were dismissed under the plea agreement, Minn. Stat. § 243.166, subd. 1 (2000), requires that a person who is charged with the sex offenses of which Hinton was accused must register as a predatory sex offender.  The dismissal of the charges does not negate the registration requirement.

It appears from the record that Hinton was not told of the registration requirement at either the time of the plea agreement or at the sentencing.  The record is silent on that issue.

But sex-offender registration is a collateral, rather than a direct, consequence of a plea of guilty.  Kaiser v. State, 641 N.W.2d 900, 903 (2002).  A plea of guilty may be accurately, intelligently, and voluntarily entered despite the lack of notice of a collateral consequence.  Id.  Thus, the district court did not err in denying postconviction relief because of the absence of notice to Hinton that he would be required to register as a sex offender.

Hinton also contends that he is required to participate in sex-offender treatment.  The district court never ordered sex-offender treatment, and we are aware of no such requirement that would apply to Hinton given the facts and disposition of this case.

Departure Bases

            Hinton disputes the propriety of basing a departure on the accused’s lack of remorse for the offense to which he pleaded guilty, contending that to do so requires a reading of the accused’s mind.  The record reveals that, although lack of remorse was offered by the prosecutor, and apparently adopted by the court, as one of the departure bases, the court also found that Hinton violated the victim’s zone of privacy when he committed the assault and that he committed the crime in the presence of children.  Facts supporting these findings are undisputed.  Multiple bases for a sentencing departure are not required but rather, under these undisputed facts, invasion of the victim’s zone of privacy alone is sufficient support for the durational departure.  See State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (stating that existence of one aggravating factor is itself sufficient to justify double durational departure); State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (stating that invasion of victim’s zone of privacy is an aggravating factor that can be considered in deciding whether to depart).

Apprendi Issue

            In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363 (2000), the Supreme Court held that a court cannot properly impose a sentence that exceeds the maximum term provided by statute unless the accused is afforded the right to have a jury determine the factors on which the extra term is based.  Until the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), courts assumed that by “statutory maximum”sentence,the Apprendi court meant the penalty appearing in the statute applicable to the particular crime in question.  Blakely clarified the term, holding that, if the state has adopted sentencing guidelines, the “statutory maximum” is the presumptive sentence under the guidelines.

            Hinton’s sentence did not exceed the maximum penalty in the second-degree assault statute but it did exceed the presumptive guidelines sentence of 39 months.  The question then is whether Blakely, decided three years after Hinton’s sentence, is to be applied retroactively so as to give Hinton the opportunity for a jury trial on the departure factors.

            The Minnesota Supreme Court has held that Blakely does not apply retroactively on collateral review to convictions that were final as of June 24, 2004, the date of the Blakely decision.  State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005).  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, 336 (Minn. 2004).  Hinton’s case became final in November 2003 when this court dismissed his appeal.  Hinton did not seek further review, and he did not petition for certiorari.

            Affirmed.