This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1790

 

State of Minnesota,

Respondent,

 

vs.

 

Clayton Bellanger,

Appellant.

 

Filed March 20, 2007

Affirmed

Shumaker, Judge

 

Itasca County District Court

File No. K0-02-1094

 

 

Lori Swanson, Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and

 

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, 123 Fourth Street N.E., Grand Rapids, MN  55744 (for respondent)

 

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

 

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

            This appeal from an order revoking probation and executing a sentence for first-degree assault has been remanded by the supreme court for reconsideration of appellant Clayton Bellanger’s claim that he was denied his right to a jury determination of sentencing issues.  Appellant argues that the Supreme Court holding on the Sixth Amendment right to a jury determination of sentencing factors announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), should apply to his sentence.  Based on the record and on the supreme court’s decision in State v. Losh, 721 N.W.2d 886 (Minn. 2006), we conclude that Blakely does not apply, and we affirm.

FACTS

 

Appellant Clayton Bellanger pleaded guilty to first-degree assault on September 20, 2002.  State v. Bellanger, 2005 WL 1514438, at *1 (Minn. App. June 28, 2005), review granted (Minn. Sept. 20, 2005).  The plea agreement provided for a double upward durational departure, to 172 months, and a downward dispositional departure.  Id.  The upward departure was based on the particular cruelty of the assault, which occurred following a series of drunken brawls.  Id.  As part of the plea agreement, Bellanger agreed to waive his right to appeal the conviction or sentence.  Id.

            Bellanger had several probation-violation reports in 2003 and 2004, one of which resulted in him serving six months in jail.  Id. at *2.  Then, on June 22, 2004, Bellanger pleaded guilty to three misdemeanor offenses, and the district court revoked his probation for the first-degree assault and executed his 172-month sentence.  Id.  This appeal was taken from that order.

            In his initial brief, Bellanger argued that the district court failed to make the Austin findings, as required by State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005).  This court agreed, and reversed the probation-revocation order and remanded for additional findings.  Id. at *3.

            Bellanger also argued that the statute restricting his right to appeal the upward departure was unconstitutional.  Id.; see Minn. Stat. § 244.11, subd. 3(b) (2002) (providing that defendant who agrees to a sentence that includes a dispositional departure may appeal the sentence only if he does so within 90 days of sentencing or before any probation violation that results in revocation).  This court held that Bellanger’s waiver of his right to appeal his sentence was unenforceable.  Id. at *4.  This court rejected Bellanger’s separation-of-powers challenge to the statute, however, and held that there was no conflict between the statute and the criminal rules.  Id.  The court also rejected Bellanger’s equal-protection challenge to the statute.  Id. at *5-*6.

            Bellanger also raised a Blakely challenge to the upward durational departure.  This court held that Blakely did not apply, stating:

Bellanger was sentenced on October 28, 2002.  Ninety days from October 28, 2002, would require an appeal of the sentence to have been brought in January of 2003.  He did not appeal the sentence within the 90-day time frame required for sentencing appeals; therefore, his case was final.  Blakely was released on June 24, 2004.  Bellanger did not have a direct appeal pending when that decision was announced, and, thus, Blakely does not apply.  Notably, this court recently held that a probation-revocation appeal does not extend the date of finality for purposes of applying the Blakely rule to sentence departures.  State v. Losh, 694 N.W.2d 98, 101 n.2 (Minn. App. 2005). 

 

Id. at *7.

The supreme court granted review and stayed the appeal pending its own decision in Losh.  After that opinion was filed, on September 28, 2006, the supreme court vacated the sections of this court’s opinion dealing with the challenges to Minn. Stat. § 244.11, subd. 3, and the Blakely challenge.  The supreme court in Losh affirmed this court’s determination that a probation-revocation appeal is not “direct review” of a sentence for purposes of retroactivity analysis.  State v. Losh, 721 N.W.2d 886, 895 (Minn. 2006).  The supreme court also held that Minn. Stat. § 244.11, subd. 3, violates the separation-of-powers doctrine and is therefore unconstitutional.  Id. at 892.

D E C I S I O N

The supreme court has vacated the portions of this court’s opinion dealing with the statutory and Blakely challenges to Bellanger’s sentence.  The supreme court has found that Minn. Stat. § 244.11, subd. 3 (2002), violates the separation-of-powers doctrine, and that issue is no longer before us.[1]  The remaining issue is whether Blakely applies to Bellanger’s sentence.  Whether a holding applies retroactively is a legal question, which this court reviews de novo.  See State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).

            The general rule is that Blakely, as a new rule of constitutional criminal procedure, is retroactively applicable to cases pending on direct review at the time Blakely was released, but not to cases then on collateral review or later challenged on collateral review.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  The supreme court in Losh has held that a challenge to a sentence that is made in a probation-revocation appeal is not “direct review” for purposes of the retroactivity of Blakely.  721 N.W.2d at 894-95.  Bellanger, however, argues that Losh is distinguishable because the plea agreement here impermissibly required him to waive his right to file a direct appeal.  He argues that this case is more like State v. Beaty, 696 N.W.2d 406, 412-13 (Minn. App. 2005), in which this court held that a defendant who received a stay of imposition, and therefore had no sentence duration to challenge, could raise a Blakely claim in a probation-revocation appeal.  We disagree.

            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) (emphasis omitted).  The defendant, it held, has a Sixth Amendment right to a jury determination of any fact (other than the fact of a prior conviction) that increases the sentence above this maximum.  Id. at 301, 303, 124 S. Ct. at 2536-37.

            In Beaty, this court noted that a defendant who receives a stay of imposition of sentence does not know what the duration of his sentence is, or whether an upward departure will be imposed, until his probation is revoked.  Id.at 411.  Beaty, 696 N.W.2d at 410-11.  This court held, therefore, that when there is a stay of imposition, “thereby precluding a challenge to the sentence duration on direct review,” Blakely should apply retroactively to a later probation-revocation appeal in which the sentence is challenged.  Id. at 411  The Beaty court distinguished the situation in Losh, in which there was a stay of execution that was later revoked, stating that, for purposes of Blakely retroactivity, “the difference between a stay of execution and a stay of imposition is a marked one.”  Id. at 411 n.2.  A defendant who receives a stay of execution has received a sentence duration that he could challenge on Blakely grounds, even if, as recognized by the supreme court, he may have little incentive to do so until later, when his probation is revoked.  See State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987) (noting that defendant placed on probation may delay challenging durational departure because he planned on succeeding on probation).

Bellanger argues that he was precluded from challenging his sentence duration because his plea agreement barred him from doing so.  Therefore, he argues, the reasoning of Beaty should apply.[2]

There is a difference, however, between having no sentence duration to challenge and having a reason not to do so, even a reason as strong as an agreement not to do so.  Bellanger’s appeal waiver constituted only a reason not to challenge the sentence duration on direct review.  And Bellanger received a significant benefit for the waiver, in the form of a dispositional departure.  Other defendants might have different reasons for not appealing their sentence – particularly the reason noted in Fields that, intending to succeed on probation and thereby avoid serving the prison term altogether, they would have no incentive to challenge the sentence duration.  Some defendants might choose simply to spare themselves the expense of a direct appeal in which they could challenge their sentence duration.

Bellanger’s appeal waiver presents a strong reason why he would not have challenged his sentence duration on direct review.  But if this court were to recognize the appeal waiver as justifiable grounds for applying Blakely retroactively other grounds would inevitably be advanced.  Some of them, such as the situation in which a defendant’s attorney is asked to file a direct appeal but fails to do so, could prove as compelling as the appeal waiver in this case.  But in that case the Blakely retroactivity analysis would evolve from a bright-line rule into a fairness argument dependent on the facts of each individual case.

The Supreme Court adopted the Teague standard, which draws the line for retroactivity purposes at the point when the right to direct review expires or is exhausted, precisely to avoid inconsistent results.  See Teague v. Lane, 489 U.S. 288, 302, 109 S. Ct. 1060, 1071 (1989) (noting that the previous standard led to inconsistent results).

Bellanger’s argument would be stronger if his appeal waiver made it impossible for him to challenge his sentence on direct appeal.  But such waivers may be challenged, even on direct appeal.  See Spann v. State, 704 N.W.2d 486, 495 (Minn. 2005) (holding that defendant could not waive his right to appeal as part of a stipulation dismissing the appeal); cf. State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987) (holding that defendant could challenge guilty plea on direct appeal where grounds for the challenge were present in the record).  The waiver presented no such impossibility as did the lack of a sentence duration in Beaty.

We decline to open the door to a wide variety of fact-specific exceptions to the Teague bright-line rule distinguishing between direct review and collateral review.  Bellanger has not shown that the very limited exception this court recognized in Beaty should extend to his very different situation

            Affirmed.