Crow Wing County District Court File No. KX-97-354.
Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.
1. The rule announced in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004), that the greatest sentence a judge can impose is the maximum sentence that may be imposed solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, does not retroactively apply on collateral review of a conviction that was final before Apprendi v. New Jersey,
The opinion of the court was delivered by: Hudson, Judge
Appellant argues that (1) his counsel was ineffective for not clearly explaining to appellant that the district court could impose an upward departure regardless of the state's agreement not to seek an upward departure; (2) the district court erred in sentencing appellant without considering the results from a court-ordered neuropsychological examination; (3) the district court abused its discretion in granting a double upward departure; and (4) he was denied due process. The post-conviction court rejected appellant's claims. At oral argument, the parties were granted leave, at appellant's counsel's request, to file supplemental briefs addressing the impact of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004); and specifically whether Blakely applies retroactively to appellant's conviction. Because Blakely does not apply retroactively in this case, and because the post-conviction court did not abuse its discretion in denying appellant's post-conviction petition, we affirm.
Appellant Shane Michael Petschl was charged with first-degree assault for putting a blanket over his three-week old son's head and punching him. Petschl pleaded guilty to first-degree assault in exchange for the state's agreement not to seek an upward departure. At the plea hearing, the district court judge asked appellant if he understood that the district court could still depart upward from the sentencing guidelines, even though the state had agreed not to seek an upward departure. Appellant acknowledged that the decision to upwardly depart was the district court's sole prerogative.
The district court ordered a presentence investigation and a psychological evaluation, and the presentence investigation recommended an upward departure. On July 21, 1997, the district court sent a notice to the county attorney and appellant's counsel informing them that it was considering a departure from the sentencing guidelines. Appellant contends, however, that his counsel never informed him of the court's notice.
After receiving the results of the psychological exam on October 30, 1997, the district court ordered an additional independent neuropsychological examination to determine whether a 1991 head injury suffered by Petschl had resulted in his diminished capacity. The order stated that the examination was to be completed within 30 days. The examination was performed on November 17, and December 5, 1997, but the results were not filed with the district court until December 18, 1997, a week after sentencing. The district court sentenced appellant without reviewing the examination report. Appellant's attorney did not object to the district court's decision to proceed with sentencing without reviewing the report.
On December 11, 1997, the district court sentenced appellant to a 196-month commitment; a double upward departure from the presumptive 98-month sentence. In support of the departure, the district court discussed philosophical reasons for sending people to prison, stating that someone should be incarcerated for criminal conduct: as a deterrent to others, to punish the offender, for rehabilitation of the offender, and for public safety. The district court stated that all of these factors applied to appellant. Further, the district court noted that appellant had a prior record and that the victim was vulnerable. The district court concluded by stating that it accepted the rationale and recommendations of the presentence investigation.
On January 24, 2003, appellant filed a petition for post-conviction relief. At the post-conviction evidentiary hearing, appellant's trial attorney, Charles Halverson, testified that he did not believe it was likely that appellant would get an upward departure, and that this was his only case where the judge indicated that he was considering a departure, and then actually departed. Halverson testified that he did not remember if the judge ordered a neuropsychological examination. After the hearing, Halverson submitted an affidavit stating that after he listened to the entire post-conviction hearing, he recalled that the sentencing judge had ordered an independent neuropsychological examination. Halverson also stated in the affidavit that he should have objected when the judge decided to proceed with sentencing without the report and that his failure to object constituted ineffective assistance of counsel.
Appellant testified at the post-conviction hearing that he believed he was going to get the presumptive sentence of 98 months or maybe a downward departure with a "slight possibility" of an upward departure. Appellant further testified that he gave up his right to trial in order to avoid an upward departure; he knew an upward departure was possible, but his counsel led him to believe that the court would not upwardly depart. Appellant testified that he did not see the notice from the judge stating that he was considering seeking an upward departure.
The district court denied appellant's petition for post-conviction relief. This appeal follows.
I. Was appellant denied effective ...