This opinion will be unpublished and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

A06-1185

 

Kevin Lee Jennings, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 24, 2007

Affirmed

Randall, Judge

 

McLeod County District Court

File No. K4-03-1028

 

 

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Michael K. Junge, McLeod County Attorney, 830 11th Street East, Suite 112, Glencoe, MN  55336 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from a denial of a postconviction motion for correction of his 2003 sentence for kidnapping, appellant argues that Blakely did not announce a new rule of constitutional criminal procedure because it was dictated by the Supreme Court’s decision in Apprendi, and therefore the Blakely rule dates back to Apprendi, which was decided before the charges were brought against him.   We affirm.

FACTS

            In August 2003, appellant Kevin Jennings was charged with kidnapping – safe release, false imprisonment, third-degree assault, and fleeing a peace officer, after he allegedly kidnapped his wife and her two children.  Appellant subsequently waived his right to a jury trial and entered an Alford plea to kidnapping – safe release.[1]  The plea agreement called for a 63-month sentence, which was a 12-month upward durational departure from the presumptive guidelines sentence of 51 months.  The departure was justified on the grounds that (1) the kidnapping took place over an extended period of time; (2) appellant fled the police; (3) appellant placed himself and the victims in danger; and (4) children were present.

In February 2006, appellant filed a pro se motion to correct his sentence on the basis that the sentencing departure was unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The district court denied the motion, holding that Blakely does not apply because appellant’s case was final at the time Blakely was decided.  This appeal followed.

D E C I S I O N

            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 conviction. The determination of 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).

            In Blakely, the Supreme Court held that the greatest sentence that a judge may 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, 542 U.S. at 303, 124 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction that increases the sentence above this maximum.  Id. at 313, 124 S. Ct. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). 

            “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable 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, 336 (Minn. 2004).  Here, appellant was sentenced on October 28, 2003.  The time for appellant to file a notice of appeal in this court expired 90 days later.  See Minn. R. Crim. P. 28.02, subd. 4(3) (stating that a criminal appeal must be filed within 90 days of the judgment).  Blakely was decided on June 24, 2004.  Accordingly, appellant’s case became final before Blakely was decided.  See Petschl, 692 N.W.2d at 470. 

            Appellant argues that Blakely did not announce a new rule of constitutional criminal procedure because it was dictated by the Supreme Court’s decision in Apprendi, and therefore the Blakely rule dates back to Apprendi, which was decided before the charges were brought against him.  This argument was rejected by the Minnesota Supreme Court in State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).[2]  In Houston, the supreme court held that, although Blakely is not a “watershed” new rule of constitutional criminal procedure requiring full retroactivity, it is a new rule of constitutional criminal procedure that only applies retroactively to cases pending on direct review when Blakely was filed.  702 N.W.2d at 273-74.  As such, Blakely does not apply to appellant’s collateral attack of his sentence, which was final before Blakely was announced.  Id.

            Affirmed.