This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1643

 

 

Richard Alan Folden, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 26, 2005

Affirmed

Halbrooks, Judge

 

 

Clay County District Court

File No. K3-92-1453

 

 

Richard A. Folden, OID #109399, MCF – Stillwater, 970 Picket Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Lisa Borgen, Clay County Attorney, Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s denial of his motion for correction of his sentence on the ground that his sentence violates the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Because appellant is not entitled to retroactive application of Blakely on postconviction review, we affirm. 

FACTS

            In January 1993, a jury convicted appellant Richard A. Folden of one count of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(v) (1990).  Because he had two previous criminal-sexual-conduct convictions, appellant was sentenced to 37 years in prison under the Minnesota Repeat Offender Statute, Minn. Stat. § 609.346, subd. 2a(a)(2) (1990). 

            Appellant has brought four previous appeals to this court.  Appellant first argued insufficiency of the evidence immediately after his conviction.  On that direct appeal, we affirmed his conviction, and the supreme court denied review.  State v. Folden, No. C8‑93-1025 (Minn. App. Jan. 26, 1994) (order op.), review denied (Minn. Mar. 15, 1994).  In 1997, appellant filed a petition for postconviction relief and argued, among other things, that his sentence violated the double-jeopardy clause and constituted cruel and unusual punishment.  The district court denied his petition; we affirmed.  Folden v. State, No. C8-97-1244, 1997 WL 793306 (Minn. App. Dec. 30, 1997).[1]  In 1999, appellant filed a second postconviction petition in which he argued a variety of conflicts and biases in his sentencing.  That petition was summarily denied by the district court, and we again affirmed.  Folden v. State, No. C9-99-1905, 2000 WL 1100108 (Minn. App. Aug. 8, 2000).  Finally, appellant moved to vacate, set aside, or correct his sentence, arguing that his sentence was unlawful under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  We concluded that his argument was misplaced because prior convictions of a criminal defendant are excepted from Apprendi’s constitutional requirement that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt.”  Folden v. State, No. C0-01-31, 2001 WL 800025, at *1 (Minn. App. July 17, 2001) (citing Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63), review denied (Minn. Aug. 22, 2001). 

            In August 2004, appellant moved for correction of his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, arguing that the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004),mandated a reduction in his sentence.  The district court denied appellant’s motion, noting that “the rule in Blakely applies retroactively only to cases pending [on] direct appeal or all cases not yet final.”  The court concluded that since appellant’s conviction “was several years prior to the [Supreme Court’s] decision in Apprendi, the Blakely rule has no application to this case.”  This appeal follows.   

D E C I S I O N

            Appellant seeks to benefit from the United States Supreme Court’s decision in Blakely by arguing that his 37-year sentence violates the Sixth Amendment of the United States Constitution and that it should be reduced to the presumptive sentence in place at the time of his sentencing.  Implicit in appellant’s argument is that Blakely applies retroactively to his conviction.  The determination of whether a decision applies retroactively is a legal question, which we review 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 applied Apprendi’s holding that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Blakely v. Washington, 124 S. Ct. 2531, 2536 (2004).  As the Court stated in Blakely, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  Id.at 2537.  Accordingly, any sentencing departures that are based on the judge’s findings, as opposed to the jury’s, are invalid under the Sixth Amendment.  Id.at 2538. 

            We have previously explained that Apprendi does not retroactively apply to collateral challenges such as petitions for postconviction relief.  Meemken v. State, 662 N.W.2d 146, 148 (Minn. App. 2003).  In the same vein, and determinative of the appeal here, “Blakely has the same procedural effect as Apprendi, increasing the accuracy of the sentence but not the conviction.  Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that [Blakely] is not a watershed rule subject to retroactive application on collateral review.”  Petschl, 692 N.W.2d at 472.  Accordingly, Blakely, like Apprendi, does not retroactively apply to collateral challenges to conviction that became final before Apprendi was released.  See id. (denying retroactive effect of Blakely on cases finally determined before Apprendi). 

The supreme court has held that “[a] case is final when a ‘judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.’”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (alteration in original) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6 (1987)).  Here, appellant’s direct appeal was exhausted when the Minnesota Supreme Court denied appellant’s direct appeal on March 15, 1994 and he failed to petition the United States Supreme Court for certiorari within the 90-day timeframe as required by U.S. Sup. Ct. R. 13.1.  Appellant’s conviction became final in 1994—long before either Apprendi or Blakely was decided.  He is therefore not entitled to relief on postconviction review.  

            Affirmed.