Opinion
No. A07-2039.
Filed August 12, 2008.
Appeal from the District Court, Hennepin County, File No. 27-CR-98-066209.
Lawrence Hammerling, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant).
Lori Swanson, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, 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This opinion will be unpublished and may not be cited except as provided by Minn.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 (2006).
UNPUBLISHED OPINION
Appellant challenges the denial of postconviction relief, arguing that Blakely v. Washington should be applied retroactively to his 1998 sentence, which was not appealed. Because appellant's case was no longer pending on direct review when Blakely was decided, and Blakely is also inapplicable to appellant's postconviction collateral attack, we affirm.
FACTS
On November 18, 1998, appellant Krishaun Harris was sentenced to two consecutive 408-month prison terms resulting from two convictions of second-degree murder. The 408-month sentence imposed on each conviction represented an upward durational departure based on the district court's findings that Harris's offenses had been committed with particular cruelty and against multiple victims. Harris did not appeal.
Because these sentences were for Harris's multiple current murder convictions, imposing them consecutive to one another was not a departure from the guidelines in effect at the time. See Minn. Sent. Guidelines II.F. (1998) (authorizing permissive consecutive sentences for multiple current felony convictions of crimes against persons).
In July 2007, Harris sought postconviction relief based on the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district court denied Harris's petition, concluding that Blakely does not apply retroactively to Harris's collateral attack on his sentence by means of a postconviction petition. This appeal followed.
DECISION
Harris challenges his sentence as violating the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We agree that if Blakely applies to Harris's sentence, reversal is required. The rule announced in Blakely prohibits upward departures based on judicial fact-finding, State v. Shattuck, 704 N.W.2d 131, 143 (Minn. 2005) (applying Blakely to Minnesota Sentencing Guidelines), and Harris's sentence represents an upward departure based on the district court's findings. Blakely was decided almost six years after Harris was sentenced. We must, therefore, first determine whether it applies retroactively to Harris's sentence. This presents a question of law, which we review de novo. State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).
Our review of the record convinces us that there is no merit in Harris's argument. Because Blakely announced a new rule of federal constitutional criminal procedure, it applies retroactively only to cases pending on direct review when it was decided. State v. Losh, 721 N.W.2d 886, 893 (Minn. 2006). A case is pending on direct review until "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." Id. (quotation omitted). Harris was sentenced on November 18, 1998, and did not appeal. Consequently, his case was no longer pending on direct review by early 1999. See Minn. R. Crim. P. 28.05, subd. 1(1) (providing 90-day window to appeal sentence). The district court correctly determined that Blakely does not apply retroactively to this matter.
Affirmed.