This opinion will be unpublished and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

A06-683

 

 

Joseph Eugene Davis, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 10, 2007

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 02042092

 

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for appellant)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), applies to his sentence.  Because we conclude that Blakely does not apply, we affirm the denial.

FACTS

 

            In May 2002,appellant Joseph Davis was charged with two counts of first-degree criminal-sexual conduct.  The complaint was later amended to add a charge of first-degree assault.  During trial in March-April 2003, appellant accepted the state’s offer to plead guilty to assault and receive a 144-month sentence, an upward departure from the presumptive 122 months, based on appellant’s particular cruelty to the victim.

            In July 2003, appellant filed an appeal from his conviction in this court.  He filed a notice of voluntary dismissal of that appeal in September 2003, and this court dismissed the appeal.  In January 2004, appellant, acting pro se, filed a petition for post-conviction relief. The district court denied his petition, and he filed a notice of appeal from the denial on June 14, 2004.  On June 24, 2004, the Supreme Court released Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

            Davis v. State, No. A04-1098 (Minn. App. Mar. 22, 2005), review denied (Minn. May 17, 2005), affirmed the denial of appellant’s petition for postconviction relief and declined to address the application of Blakely.  In August 2005, appellant filed a pro se motion for sentence correction under Blakely.  In December 2005, an attorney appointed to represented appellant filed a petition for postconviction relief to substitute for appellant’s motion to correct. The petition was denied in February 2006, and appellant now challenges that denial, arguing that Blakely applies to his sentence.

D E C I S I O N

            The retroactive application of a new case is a legal question, which an appellate court reviews de novo.  State v. Houston, 702 N.W. 2d 268, 270 (Minn. 2005).

            Appellant now argues that the district court erroneously “rejected [his] contention that this Court intended [him] to be able to have Blakely apply to his case.”  But this court actually said:

We recognize the timing of the release of Blakely made it impossible for appellant to raise a Blakely issue in the district court. . . . We decline to address the Blakely issue. . . . Our decision is without prejudice to appellant’s ability to later petition the district court for relief under Blakely.  We make no advisory comments on that outcome.

 

 Davis v. State, No. A04-1098, 2005 WL 646499, at *6 (Minn. App. Mar. 22, 2005), review denied (Minn. May 17, 2005).  Contrary to appellant’s argument, this court expressed no intention that appellant “be able to have Blakely apply to his case.”  The district court did not err in rejecting appellant’s construction of this court’s previous opinion.

            Appellant then argues that this court “should independently find that O’Meara [v. State, 679 N.W.2d 334 (Minn. 2004)] permits [him] to assert his Blakely issue now.”  O’Meara holds that a defendant may benefit from a new rule of federal constitutional procedure if the defendant’s case is “pending on direct review” when the rule is announced and that, if a defendant fails to perfect his appeal, his conviction becomes final on the day the appeal period expires.  Id at 339-40.   But when a defendant voluntarily dismisses an appeal that he has previously perfected, the conviction becomes final on the date of the dismissal.  State v. Petschl, 692 N.W. 2d 463, 470 (Minn. App. 2004) (“[Petschl] perfected a direct appeal but stipulated to a voluntary dismissal of that appeal.  [His] conviction became final on April 1, 1998, when the direct appeal was dismissed pursuant to that stipulation.”), review denied (Minn. Jan. 20, 2005).  Appellant’s appeal was dismissed voluntarily on September 10, 2003; his conviction therefore became final on that date.  Because his postconviction petition sought collateral review, not direct review, it did not entitle him to assert the new rule announced in Blakely.

            Finally, appellant argues that he is entitled to apply Blakely because he sought resentencing before the effective date of the 2005 amendments to Minn. Stat. § 244.10 (2004) and, in cases remanded for further proceedings under Blakely, courts have authority to convene sentencing juries only if the defendant sought resentencing on or after the effective date.  But this court did not remand appellant’s case for further proceedings under Blakely; it explicitly declined to address Blakely or to comment on its applicability to appellant’s case.  Davis,2005 WL 646499, at *6. 

            The district court properly concluded that Blakely does not apply to appellant’s case.

Affirmed.