William Richard Iverson, petitioner, Appellant, vs. State of Minnesota, Respondent.

William Richard Iverson, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-111, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-111

 

William Richard Iverson, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed August 22, 2006

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K3972703

 

William R. Iverson, MCF - Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from denial of his postconviction petition, pro se appellant argues (1) that he was unable to understand his original guilty plea because of a mental illness and (2) that the upward sentencing departure he received in 1998 is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  We affirm.

FACTS

 

            Appellant pleaded guilty to assault in 1998 and was sentenced to 200 months in prison, an upward departure.  On direct appeal, this court affirmed the sentencing departure.  State v. Iverson, No. C6-98-992, 1998 WL 799183 (Minn. App. Nov. 17, 1998), review denied (Minn. Jan. 21, 1999).  In 2001, appellant petitioned for postconviction relief, seeking a sentencing reduction based on a claim that he was mentally ill when he committed the offense.  The district court denied the petition, and this court affirmed.  Iverson v. State, No. CX-01-1137, 2001 WL 1402557 (Minn. App. Nov. 13, 2001), review denied (Minn. Jan. 15, 2002).  In 2005, appellant petitioned for postconviction relief, challenging his sentencing departure under Blakely and once again arguing that he suffered from a mental illness at the time of the offense.  The district court denied appellant's petition.

D E C I S I O N

 

            The postconviction court's decision will not be disturbed unless the court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The district court may summarily deny a defendant's "second or successive petition for similar relief . . . and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals."  Minn. Stat. § 590.04, subd. 3 (2004).  Appellant raised his mental-illness claim in his first petition and on subsequent appeal to this court in 2001.  The postconviction court did not abuse its discretion by summarily dismissing the same claim in appellant's current petition.

            Regarding appellant's sentencing argument, Blakely v. Washington requires that a judge rely on facts found by a jury or admitted by the defendant when issuing an upward sentencing departure.  542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).  But Blakely is not subject to retroactive application on collateral review.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  Appellant's direct appeal was final in 1999 when the Minnesota Supreme Court denied his petition for review.  See O'Meara v. State, 679 N.W.2d 334, 340 (Minn. 2004).  Because Blakely was decided after judgment became final, appellant is not entitled to its application in a postconviction proceeding.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.