This opinion will be unpublished and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

A06-1853

 

State of Minnesota,
Respondent,

vs.

Matthew Thomas Gullickson,
Appellant.

 

 

Filed September 11, 2007

Affirmed

Peterson, Judge

 

 

Itasca County District Court

File No. K4-01-1850

 

 

John M. Stuart, State Public Defender, Philip Marron, 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

 

 

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

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, 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 an order denying his motion for resentencing following probation revocation, appellant Matthew Thomas Gullickson argues that he is entitled to reversal of his sentence, which violates State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Appellant argues that, although the time to directly appeal his sentence had expired when Misquadace was released, he is entitled to the application of that decision because his opportunity to challenge the sentencing departure in a probation-revocation proceeding had not expired.  We affirm.

FACTS

            In January 2002, appellant pleaded guilty to one count of first-degree arson in violation of Minn. Stat. § 609.561, subd. 3 (2000).  Pursuant to the plea agreement, the district court sentenced appellant to a stayed term of 96 months, which was an upward durational departure and a downward dispositional departure from the presumptive guidelines sentence of an executed 48-month term. 

            On April 18, 2006, appellant pleaded guilty to a felony offense of fleeing a peace officer and admitted that the offense was a violation of the probation conditions for appellant’s arson offense.  Appellant moved to modify the sentence for the arson offense from 96 months to the presumptive term of 48 months.  The district court revoked appellant’s probation and denied his motion for resentencing.  The district court found that the only basis for the sentencing departure was the plea agreement but that appellant was not entitled to resentencing under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), because the matter was not pending when Misquadace was decided.

            This appeal followed.

D E C I S I O N

            Whether a court decision applies retroactively is a legal question, which we review de novo.  O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).

            A plea agreement cannot by itself form the basis for a sentencing departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Misquadace announced a new rule of law, and, therefore, does not apply retroactively to a conviction that became final before Misquadace was decided.  Hutchinson v. State, 679 N.W.2d 160, 165 (Minn. 2004).

            The supreme court has held that “a case is pending until such time as 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, 679 N.W.2d at 336.  Citing State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987), appellant argues that his “direct appeal rights were pending when State v. Misquadace was decided and that case must be applied to his sentence.”  In Fields, the supreme court held that a defendant could challenge his sentence for the first time by making a motion at the hearing at which his stay of execution was revoked, rather than requiring that the challenge be made in either a direct appeal from the judgment of conviction or a postconviction petition.  416 N.W.2d at 736.

            But the supreme court has specifically rejected the argument that a challenge under Fields should be considered a direct appeal for purposes of retroactive application of a new rule of law.  State v. Losh, 721 N.W.2d 886, 894-95 (Minn. 2006).  The supreme court has stated:

            Neither Fields nor subsequent decisions by this court interpreting Fields have described such a procedure as a “direct appeal” or “direct review.”  Losh argues that the policy arguments mentioned in Fields support her position that an appeal of a sentence pursuant to Fields should be considered direct review for retroactivity purposes.  In Fields this court stated that defendants initially placed on probation often have less incentive to appeal the durational departure.  Id. at 736.  Fields, however, did not deal with retroactivity and never described an appeal pursuant to Minn. R. Crim. P. 27.03, subd. 9, as a “direct appeal.”  Moreover, Losh’s appeal pursuant to Fields and Minn. R. Crim. P. 27.03, subd. 9, was not her first opportunity to appeal her sentence.  See Minn. R. Crim. P. 28.02, subd. 2(3); 28.05, subd. 1(1) (allowing appeal from sentence to be taken within 90 days of judgment and sentencing).  For these reasons, Fields does not provide a basis to hold that Losh’s conviction was on “direct review” at the time Blakely was decided. 

 

Losh, 721 N.W.2d at 894-95 (footnotes omitted).

            Like Losh, appellant failed to appeal his sentence within 90 days after it was imposed, and, therefore, the appeal rights that he retained after the 90-day period were not direct-appeal rights.  Appellant argues that, because Losh and O’Meara involved the application of Washington v. Blakely, 542 U.S. 296, 124 S. Ct. 2531 (2004), which is a federal decision, the supreme court was required to apply federal retroactivity principles and that, because Misquadace involved interpretation of state law, federal retroactivity principles need not apply.  See O’Meara, 679 N.W.2d at 338-39 (noting that, because case involved issue of federal procedure, court must apply federal retroactivity principles).

            Appellant argues that a stay of execution should be treated like a stay of imposition for retroactivity purposes.  See State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005) (holding that, when a district court stays imposition of sentence, thereby precluding a challenge to the sentence duration on direct review, and later vacates the stay and imposes a sentence that is an upward durational departure, Blakely applies retroactively to a defendant’s pending appeal of the sentence imposed because the sentence was not final when Blakely was released).  We disagree.  A stay of imposition differs from a stay of execution in that “the point at which the district court vacates the stay [of imposition] and imposes the sentence is the first opportunity to appeal the duration of the sentence.”  Beaty, 696 N.W.2d at 410.  When appellant was sentenced in 2002, he knew that an upward durational departure had been imposed based on his plea agreement, and he had an opportunity at that time to appeal the sentencing departure.

            Appellant also argues that this court should follow State v. Lewis, 656 N.W.2d 535, 537-38 (Minn. 2003), which applied state retroactivity principles.  But the state retroactivity principles applied in Lewis are consistent with the federal retroactivity principles applied in O’Meara.  Lewis appealed his sentence within 90 days after it was imposed, rather than appealing after probation was revoked, and he “was awaiting a decision from the court of appeals at the time of [the supreme court’s] decision in Misquadace.”  Lewis, 656 N.W.2d at 538.  Based on this course of events, the supreme court concluded that Lewis’s case “was not yet final and was ‘pending,’ in the sense that we have generally used that term.”  Id.  This statement implies that the state retroactivity principle is that a sentencing appeal not brought within 90 days after sentence is imposed is not a direct appeal, and when 90 days have passed after a sentence was imposed, a case is no longer pending simply because of the possibility that a sentencing challenge may be brought later if probation is revoked.

            Because Misquadace was not decided until 95 days after appellant’s sentence was imposed and appellant had not appealed when Misquadace was decided, his case was not pending when Misquadace was decided.  Accordingly, he is not entitled to have that case applied to his sentence, and the district court properly denied appellant’s motion for resentencing.

            Affirmed.