Opinion
No. A05-701.
Filed December 13, 2005.
Appeal from the District Court, Washington County, File No. K9011058.
John Gerald Iverson, Mcf/Moose Lake, (pro se appellant)
Mike Hatch, Attorney General, and Doug Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from an order denying postconviction relief, appellant argues that the district court erred in ruling that he was not entitled to relief under Blakely v. Washington, 124 S. Ct. 2531 (2004), from an 18-month upward-durational-departure sentence and a ten-year conditional-release term imposed pursuant to Minn. Stat. § 609.109, subd. 7 (2004). Because Blakely does not apply to appellant's sentence, we affirm.
FACTS
Appellant pleaded guilty to and was convicted of two counts of first-degree criminal sexual conduct and was sentenced in July 2001 to executed concurrent prison terms of 162 months on the first count (representing a 144-month presumptive sentence and a negotiated upward departure of 18 months) and 77 months on the second count (the presumptive sentence). The district court also imposed a ten-year statutory conditional release period under Minn. Stat. § 609.109, subd. 7. Appellant petitioned for postconviction relief under Blakely, and appeals from the order denying that petition.
DECISION
Under Blakely, the greatest sentence a judge may impose is "the maximum sentence . . . [available] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537 (2004). A defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2536 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000)). But Blakely is not subject to retroactive application on collateral review. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). In this case, appellant did not appeal from the judgment of conviction entered on July 18, 2001, and his conviction became final 90 days later. See Minn. R. Crim. P. 28.02, subd. 4(3) (requiring defendant to appeal final judgment within 90 days after entry); see also O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (stating that a case becomes final when judgment of conviction is rendered and availability of appeal exhausted). Because a petition for postconviction relief is a collateral attack on a final judgment and Blakely is not subject to retroactive application on collateral review, Blakely does not apply to appellant's sentence.
Appellant also argues that the presumptive sentence in his case was calculated based on an incorrect criminal-history score of four. Although appellant raised this issue in his postconviction petition, the district court did not address it. But presentencing investigation documents in the record and statements by the court and both counsel at the plea hearing and sentencing hearing indicate that the presumptive guidelines sentence was calculated based on a criminal-history score of two and an offense-severity level of eight. Although the district court did not rule on or make findings relative to this issue, we conclude that there is no merit to appellant's assertion of an incorrect criminal-history score.