Stearns County District Court File No. K4973061
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge,
and Minge, Judge.
The rule announced in Apprendi v. New Jersey,
The opinion of the court was delivered by: Minge, Judge
Appellant challenges the denial of post-conviction relief from an upward departure in his sentence on the ground that the facts supporting the upward departure were not submitted to the jury, thus violating his right to due process, as established by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Because appellant is collaterally attacking his conviction, and because the Apprendi rule is not applied retroactively to collateral review, we affirm.
Appellant James Joseph Meemken was charged with one count of attempted criminal sexual conduct in the second degree and one count of solicitation of a child to engage in sexual conduct. In April 1998, a jury convicted appellant on both counts. On May 29, 1998, the district court sentenced appellant as a patterned sex offender under Minn. Stat. § 609.1352, subd. 1a (1996), and ordered him to serve a 240-month prison sentence for the attempt conviction. The sentence was an upward departure. At the time appellant was sentenced, the statutory maximum sentence for attempted second-degree criminal sexual conduct was 12 and a half years, or 150 months. See Minn. Stat. §§ 609.17, subd. 4(2),.343, subd. 1 (1996). As a basis for the upward departure, the district court listed aggravating circumstances, concluded that appellant was a patterned sex offender, and imposed a sentence that was authorized under the patterned sex-offender statute. See Minn. Stat. § 609.1352, subd. 1a (increasing statutory maximum to 40 years for predatory offense when sentenced under the patterned sex offender statute).
On direct appeal, appellant challenged (1) the district court's decision to allow the jury to review during deliberations a videotaped interview of the victim; and (2) the sufficiency of the evidence. This court affirmed appellant's convictions in State v. Meemken, 597 N.W.2d 582 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).
In April 2002, appellant filed a petition for post-conviction relief arguing that facts which were a basis for his increased sentence were neither submitted to the jury nor proved beyond a reasonable doubt. Appellant relied on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), in which the court held that with the exception of facts of a prior conviction, the jury must hear facts that increase the criminal penalty; and those facts must be proven beyond a reasonable doubt. The post-conviction court denied relief because it found that the Apprendi rule does not apply retroactively to a collateral appeal.
Did the post-conviction court properly deny appellant's collateral attack of his sentence seeking retroactive application of the Apprendi rule?
"A petition for post-conviction relief is a collateral attack on a conviction that carries a presumption of regularity." Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (citing State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968)). The post-conviction petitioner "has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case." State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999) (quotation omitted). On review, an appellate court will not disturb the decisions of the post-conviction court unless the post-conviction court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But a reviewing court is not ...