State of Minnesota, Respondent, vs. James D. Pilot, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-345

 

State of Minnesota,

Respondent,

 

vs.

 

James D. Pilot,

Appellant.

 

Filed December 28, 2004

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 96040844

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Linda M. Freyer, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Craig E. Cascarano, 333 South Seventh Street, Suite 2890, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Willis, 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

WILLIS, Judge

Appellant argues that the district court erred by denying his postconviction petition to correct his sentence.  Because we conclude that the new rules of criminal procedure on which appellant bases his argument are not applicable to him and because we conclude that the five-year conditional-release term added to his sentence was mandatory and proper, we affirm.

FACTS

Appellant James D. Pilot was convicted in 1997 of first-degree criminal sexual conduct and attempted first-degree murder.  He was sentenced to 270 months for the first-degree criminal sexual conduct conviction and to 180 months for the attempted first-degree murder.  This court affirmed Pilot's convictions but vacated his sentence for the attempted-murder conviction.  State v. Pilot, C5-97-858, 1998 WL 297511, at *2 (Minn. App. June 9, 1998).  The Minnesota Supreme Court affirmed Pilot's convictions in June 1999.  State v. Pilot, 595 N.W.2d 511, 513 (Minn. 1999).  Pilot did not file a petition for writ of certiorari with the United States Supreme Court.  In July 2000, the district court filed an amended sentencing order adding a five-year conditional-release term to Pilot's sentence "[p]ursuant to the mandatory sentencing requirements set forth in Minnesota Statutes § 609.109, subdivision 7." 

Pilot filed a petition for postconviction relief in June 2000.  He requested reversal of his convictions and a new trial, alleging that the state's failure to perform DNA testing on him violated his right to due process and that he received ineffective assistance of counsel.  Pilot did not submit a memorandum of law in support of his petition until March 2001.  This memorandum iterated the allegations Pilot made in the petition and failed to challenge the amended sentencing order filed between the date of Pilot's petition and the date of his memorandum of law.  The district court denied Pilot's petition for postconviction relief, and this court affirmed the denial.  Pilot v. State, C3-01-1464 (Minn. App. Nov. 13, 2002) (unpublished order opinion).

On July 1, 2003, Pilot petitioned for the correction of his sentence in light of the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).  Pilot argued that his sentence was unconstitutional in light of these decisions because the judge, rather than the jury, determined the existence of aggravating factors that resulted in the imposition of the 270-month sentence, rather than the presumptive guidelines sentence.  Pilot also challenges the addition of the five-year conditional-release term.  The district court determined that Pilot's sentence was proper and denied Pilot relief.  This appeal followed.  After Pilot filed his appeal to this court, the United States Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), which appellant also relies on to support his challenge to his sentence.

D E C I S I O N

Pilot challenges the validity of his sentence on two bases: first, he argues that his sentence is unconstitutional because recent decisions of the United States Supreme Court have held that juries, not judges, must determine the existence of aggravating factors that are used to calculate upward departures to a defendant's criminal sentence.  Second, Pilot argues that the addition of the five-year conditional-release term to his sentence was improper and unconstitutional. 

Pilot bases his first argument on the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002); and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004).  In this line of cases, the Supreme Court has allocated to juries the authority to determine whether the existence of any fact that increases a criminal penalty beyond the statutory maximum has been proved beyond a reasonable doubt.  Blakely, 124 S. Ct. at 2536.  These cases establish and define new rules of criminal procedure.  See Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004) (noting that rules allocating decision-making authority are prototypical, not "watershed," procedural rules).

New rules of criminal procedure generally do not apply retroactively.  Id.  But a "watershed" rule of criminal procedure, that is a rule "without which the likelihood of an accurate conviction is seriously diminished," will be applied retroactively.  Id. (quoting Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060 (1989) (plurality opinion)). 

Pilot argues that Apprendi, Ring, and Blakely are "watershed" rules of criminal procedure and therefore should apply retroactively to his case.  We disagree.  The Supreme Court held in Schriro that because judicial fact-finding does not seriously diminish the accuracy of a conviction, Ring does not apply retroactively to cases that are already final on direct review.  Id. at 2525-26.  Likewise, applying similar reasoning, this court has held that Apprendi does not apply retroactively on postconviction review.  Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003).  Furthermore, this court recently held that Blakely is not a watershed rule subject to retroactive application to cases that are final on direct review.  State v. Petschl, 688 N.W.2d 866, 875 (Minn. App. 2004).

If Pilot's case was final when Apprendi, Ring, or Blakely were decided, the rules established by those cases are inapplicable to Pilot.  "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) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708 (1987)).  The Minnesota Supreme Court affirmed Pilot's convictions on June 3, 1999.  State v. Pilot, 595 N.W.2d 511, 513 (Minn. 1999).  Pilot had 90 days after this decision to petition for a writ of certiorari from the United States Supreme Court.  U.S. Sup. Ct. R. 13.1.  Because Pilot filed no such petition, his conviction became final in September 1999.  Apprendi was decided in June 2000.  530 U.S. at 466, 120 S. Ct. at 2348.  The Ring and Blakely decisions followed.  Because Pilot's case was final when these cases were decided, his sentence is not affected by the new procedural rules that these cases established.  Pilot's challenge to the constitutionality of his sentence based on the Supreme Court's decisions in Apprendi, Ring,and Blakely fails.

Pilot also argues that the amendment of his sentence to include the five-year conditional-release term was improper because Minn. Stat. § 609.109, subd. 7 (1998), the statute on which the amended sentence was based, was enacted after appellant's 1996 conviction.  When appellant was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd.1(e)(i) (1995), Minnesota law mandated the imposition of a conditional-release term.  Minn. Stat. § 609.346, subd. 5(a) (1996).  In 1998 this statute was recodified as Minn. Stat. § 609.109, subd. 7.  See State v. Brown, 606 N.W.2d 670, 673 n.3 (Minn. 2000).  This recodification was "not intended to result in any substantive change in the recodified sections."  1998 Minn. Laws ch. 367, art. 6, § 2.  Failure to include the mandatory conditional-release term in a sentence is an error of law.  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).  And a court may correct a sentence not authorized by law at any time.  Minn. R. Crim. P. 27.03, subd. 9.  The district court did not err by amending Pilot's sentence to include the five-year conditional-release term.

Alternatively, Pilot argues that the five-year conditional-release term was improperly imposed because section 609.109, subdivision 7, only applies to repeat sex offenders and a jury did not find him to be a repeat sex offender.  Section 609.109, subdivision 7, and the former Minn. Stat. § 609.346, subd. 5, which was in effect at the time of Pilot's sentence, both require a five-year conditional-release term for persons convicted of violations of section 609.342.  A person convicted of a violation of section 609.342 who has previously been convicted of a sex offense is subject to a mandatory conditional-release term of ten years.  Minn. Stat. § 609.109, subd. 7; Minn. Stat. § 609.346, subd. 5.  Pilot was convicted of a violation of section 609.342, therefore the imposition of the five-year conditional-release term was mandatory, and the district court did not err by amending his sentence to include it.

Because Apprendi, Ring, and Blakely do not apply to Pilot's sentence and because the five-year conditional-release term was appropriately added to his sentence, the district court did not err by denying Pilot's petition to correct his sentence.

Affirmed.