This opinion will be unpublished and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

A06-485

 

Shah Aziz, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed April 17, 2007

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 98063932

 

Shah Aziz, MCF – Stillwater, 970 Pickett Street North, #137424, Bayport, MN  55003 (pro se appellant)

 

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

 

Mike Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a district court order denying his motion to correct his 1999 sentence for kidnapping, appellant argues that he received multiple sentences for a single behavioral incident and that his sentence violates the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  We affirm.

FACTS

            In 1998, appellant Shah Aziz was charged with soliciting prostitution, in violation of Minn. Stat. § 609.322, subd. 1a(1) (1996), and kidnapping, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(1) (1996).  The state later amended the kidnapping charge to allege that the victim was not released in a safe place, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1996).

            In January 1999, a jury found Aziz guilty on both counts and answered “No” to a verdict-form question asking whether the victim was released in a safe place.  On March 3, 1999, the district court imposed a 216-month sentence for the kidnapping offense and a concurrent 19-month sentence for the soliciting-prostitution offense.  The 216-month sentence was a double upward departure from the 108-month guidelines sentence for kidnapping.  In imposing the upward departure, the district court relied on its findings under the dangerous-offender statute.  Minn. Stat. § 609.152, subd. 2 (1996).  Aziz appealed, and this court affirmed the conviction.  State v. Aziz, No. C8-99-910, 2000 WL 1100222 (Minn. App. Aug. 8, 2000).  While the appeal was pending, the United States Supreme Court announced its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

            On October 29, 2001, Aziz filed a petition for postconviction relief alleging ineffective assistance of trial and appellate counsel.  The district court denied the petition, and this court affirmed in part and remanded in part on a witness-recantation issue.  Aziz v. State, No. C3-02-79 (Minn. App. Aug. 15, 2002) (order).  On remand, the district court dismissed the matter on Aziz’s motion. 

            On October 7, 2002, Aziz filed a number of other petitions for postconviction relief, motions to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, and motions for a new trial under Minn. R. Crim. P. 26.04.  In these filings, Aziz argued for the first time that the district court erred in allowing the state to amend the kidnapping charge and that his sentence was unlawful because the amendment increased the severity of the offense and the upward departure under the dangerous-offender statute violated the rule announced in Apprendi.  The district court, in a July 22, 2003 order, denied Aziz’s petition because all of the issues raised were known but were not raised on direct appeal or in previous petitions.  Aziz appealed, and this court affirmed the denial of the petition.  Aziz v. State, Nos. A03-1359, A03-1626 (Minn. App. Feb. 10, 2004) (order), review denied (Minn. May 18, 2004).

            In June 2004, the Supreme Court announced its decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  On September 27, 2004, Aziz filed a motion to correct his sentence for kidnapping, alleging double jeopardy and due-process grounds.  The district court denied the motion.  This appeal followed.

D E C I S I O N

            The district court treated Aziz’s motion to correct his sentence as a petition for postconviction relief.  See Minn. R. Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”); see also State v. Stutelberg, 435 N.W.2d 632, 635 (Minn. App. 1989) (noting that a rule 27.03 motion to correct sentence may be considered a postconviction proceeding).  The district court “may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.”  Minn. Stat. § 590.04, subd. 3 (2006); see Spears v. State, 725 N.W.2d 696, 700 (Minn. 2006) (stating that, generally, district court will not consider claims raised in, or known but not raised in, earlier petition for postconviction relief); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that all claims raised, and claims known but not raised, on direct appeal will not be considered in later petition for postconviction relief); see also King v. State, 649 N.W.2d 149, 156 (Minn. 2002) (holding that Knaffla rule applies if defendant knew or should have known about issue at time of appeal).  The petitioner has the burden of establishing by a fair preponderance of the evidence facts that warrant reopening the case.  Minn. Stat. § 590.04, subd. 3; State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

            “We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and “will not reverse the findings unless they are clearly erroneous.”  Dukes v. State, 621 N.W.2d 246, 250-51 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  “If the district court denies a motion under Rule 27.03, subd. 9, we will not reverse that decision if it represents a proper exercise of the district court’s discretion and the original sentence was authorized by law.”  Miller v. State, 714 N.W.2d 745, 747 (Minn. App. 2006).

I.

            Aziz argues that the postconviction court erred in summarily denying his request for postconviction relief because “a defendant cannot waive a challenge based on multiple-sentencing issues.”  State v. Johnson, 653 N.W.2d 646, 650 (Minn. App. 2002).  In Johnson, this court held that a defendant “cannot waive the prohibition against double punishment found in Minn. Stat. § 609.035 by failing to assert such a claim in his direct appeal.”  Id.; see Minn. Stat. § 609.035, subd. 1 (2006) (“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”).  But Aziz did not receive double punishment. 

            The sentencing provision of the kidnapping statute states that “if the victim is released in a safe place without great bodily harm,” the offender may be sentenced to prison for up to 20 years.  Minn. Stat. § 609.25, subd. 2(1) (1996).  But “if the victim is not released in a safe place,” the offender may be sentenced to prison for up to 40 years.  Minn. Stat. § 609.25, subd. 2(2) (1996).  Aziz argues that by allowing the state to amend the kidnapping charge from subdivision 2(1) to 2(2) and sentencing him for kidnapping and not releasing the victim in a safe place, the district court imposed multiple sentences for the same behavioral incident.  See Johnson, 653 N.W.2d at 651-52 (discussing what court must consider in deciding whether multiple offenses arise from single behavioral incident).  Aziz contends that when the district court calculated the presumptive sentence to be 108 months, the sentence included 54 months for kidnapping and 54 months for not releasing the victim in a safe place.  But the district court did not impose two sentences for kidnapping; the district court determined that the guidelines sentence for kidnapping without releasing the victim in a safe place was 108 months.  Because the district court did not impose multiple sentences for the kidnapping offense, the postconviction court did not abuse its discretion in denying Aziz’s request for relief on this issue.

II.

            Aziz argues that the district court’s reliance on the dangerous-offender statute, Minn. Stat. § 609.152, subd. 2 (1996), to impose an upward departure violates Apprendi because the facts relied on to impose the departure were not charged in the complaint or found by a jury.  See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (holding that any fact other than prior conviction that increases penalty above statutory maximum must be put to jury and proved beyond a reasonable doubt).            Although Aziz’s direct appeal was pending when the Supreme Court announced its Apprendi decision in 2000, Aziz waived this issue by failing to raise it during his direct appeal or in his October 2001 petition for postconviction relief when this claim was, or should have been, known.  See Spears, 725 N.W.2d at 700 (determining that although petitioner did not pursue Apprendi claim on direct appeal, he was entitled to relief because he raised the issue in postconviction petition within 90 days of denial of petition for further review).    

            Aziz’s case was final when the Supreme Court announced its decision in Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  But Aziz argues that he is entitled to relief under Blakely because the Supreme Court has recently stated that Blakely merely “clarified” Apprendi.  Washington v. Recuenco, 126 S. Ct. 2546, 2549 (2006).  Aziz contends that this means that Blakely must be retroactively applied to Apprendi.  But the supreme court rejected this argument when it held that Blakely “altered” the understanding of statutory maximum for Apprendi purposes, and that “extending the benefit of the Blakely rule beyond those cases pending on direct review at the time of the announcement of the rule would undermine the retroactivity policy of validating good-faith state court decisions and preserving finality.”  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005); see also O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (explaining when case becomes final).  Because the supreme court has determined that Blakely does not retroactively apply to cases that were final before the Supreme Court announced its decision in Blakely, Aziz is not entitled to the benefit of the Blakely rule.

            Affirmed.