1. If a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.
2. 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.
3. Due process requires that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Minnesota Statutes § 609.108, subd. 2 (2002), as applied to a defendant convicted of two counts of second-degree criminal sexual conduct and sentenced to enhanced 40-year prison terms upon findings made by the sentencing court on a preponderance of the evidence standard, violates due process.
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Heard, considered and decided by the court en banc.
In this case, we consider the circumstances under which a criminal defendant is entitled to benefit from a new rule of federal constitutional criminal procedure announced by the United States Supreme Court. The precise question we face is whether appellant Timothy John O'Meara's criminal case was "pending" when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), thus entitling him to the benefit of the rule announced in that decision, namely, that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.*fn1 The state concedes that if O'Meara is entitled to benefit from the Apprendi rule, his sentence was imposed in violation of Apprendi, and must therefore be reduced. We hold that if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.
Our holding today implicitly requires us to determine when a case is pending on direct review. We further hold 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. Because we conclude that O'Meara's case was pending when Apprendi was decided, he is entitled to benefit from the rule announced in that decision. We reverse and remand for imposition of the statutory maximum sentences of two consecutive 25-year terms under Minn. Stat. §§ 609.108, subd. 1, and 609.343, subd. 2 (1998), plus the conditional release term of 10 years mandated by Minn. Stat. § 609.109, subd. 7(a) (1998).
The underlying facts of this case are not in dispute. O'Meara waived his right to a jury trial and agreed to submit his case to the district court based on stipulated facts. See Minn. R. Crim. P. 26.01, subds. 1(2)(a) and 3; State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). O'Meara stipulated that in May 1999, he and N.H., who was then age 10, were alone together at O'Meara's home and that a video camera was used to record his activities with N.H. O'Meara also stipulated that in June 1999, he was similarly alone at his house with B.K., who was then age 9, and that a video camera was also used to record his activities with B.K. Pursuant to a valid search warrant, police seized the videotape used to record the encounters. The videotape showed the two boys naked and showed O'Meara instructing them to masturbate. Detective John Sieling, who had watched the videotape, testified that O'Meara had put his hands on B.K.'s penis "three to four times." Detective Sieling also testified that O'Meara had put his hands on N.H.'s penis. O'Meara was convicted of two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a)(2) (1998).
The state requested that O'Meara be sentenced as a patterned sex offender pursuant to Minn. Stat. § 609.108, subd. 2. The state further requested that O'Meara be sentenced to the "maximum term allowed by law," or 40 years for each conviction pursuant to the same statute. The state also requested consecutive sentences. At O'Meara's sentencing hearing, Dr. Rick Ascano, the licensed psychologist who examined O'Meara, testified that (1) he has experience assessing sex offenders; (2) he conducted a clinical interview with O'Meara, performed a battery of psychological tests on him, and reviewed various documents related to his history of sexual misconduct; (3) he is familiar with the statutory definition of "patterned sex offender"; and (4) in his opinion, O'Meara is a patterned sex offender and a risk to public safety.
Specifically, Dr. Ascano testified that O'Meara (1) attempts to rationalize and justify his actions, and therefore attempts at rehabilitation will be hindered; (2) "is the type of individual who feel[s] more comfortable reaching out to vulnerable individual[s], i.e., children, in order to meet his emotional needs"; (3) has the "fairly significant or severe sexual problem of having psychosexual abnormality"; (4) is self-indulgent; (5) is passive-aggressive and resistant to dynamics imposed on him; (6) admitted to Dr. Ascano that "Deep down it excites me" in regard to having contact with children; (7) premeditatedly tries to access young children by dating or socializing with their mothers; (8) "is in need of a long-term treatment intervention and preferably in a structured environment, meaning not outpatient"; and (9) has a "significantly high" risk of reoffending.
Dr. Ascano testified that O'Meara required a minimum of 3 to 5 years of treatment and that rehabilitation might be impossible. He further testified that a prison term of 5 years would be inadequate to rehabilitate O'Meara if he lacked the "proper motivation." Dr. Ascano also testified that it was "questionable" that the presumptive sentence would be adequate because of O'Meara's 20-year history of sexual misconduct. Furthermore, the Presentence Investigation Report received by the district court included a victim impact statement which detailed the extensive trauma both minor victims have suffered.
The district court found that O'Meara is a danger to public safety because (1) he has two prior felony convictions for criminal sexual conduct; (2) he committed the acts with the two boys "shortly after [he] was released and while he was on parole" for the prior convictions; and (3) he "violated a position of trust in committing the acts perpetrated upon" the boys because "he was entrusted with the safekeeping of the victims while they spent the night at his house." The court also found that, based on Dr. Ascano's report, O'Meara is "in need of long-term treatment * * * beyond the presumptive term of the imprisonment and supervised release." The court further found that O'Meara's offenses "were motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration." Based on these findings, the court concluded that O'Meara is a patterned ...