Joe Henry Bandy III, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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

A04-850

 

Joe Henry Bandy III, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed November 9, 2004

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 98108691

 

Joe Henry Bandy III, MCF Moose Lake, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)

 

Mike Hatch, Attorney General, Suite 1800, North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Joe Henry Bandy III appeals the denial of his petition for post-conviction relief made in the form of a motion to amend and correct an improper sentence imposed in 1999.  Because all of the issues raised by appellant in his motion were raised, or could have been raised, in his direct appeal, we affirm.

FACTS

 

            In 1999, appellant was convicted of criminal sexual conduct in the third degree and depriving parental rights.  The district court sentenced appellant to a dispositional departure and double durational departure of 34 months executed for depriving parental rights and a concurrent double durational departure of 176 months for criminal sexual conduct in the third degree, citing the victim's vulnerability due to age and mental capacity as aggravating factors.

            In a direct appeal, appellant challenged, among other things, the imposition of separate sentences for each conviction.  This court affirmed in an unpublished opinion noting that separate sentences were appropriate because there were multiple victims.  State. v. Bandy, No. C9-99-1371 (Minn. App. May 23, 2000).  Appellant's petition for further review was denied on July 25, 2000.  Appellant's first petition for postconviction relief, filed in September 2002, was denied, and his appeal from denial of that petition was dismissed on procedural grounds.  In March 2004, appellant moved to amend and correct his sentence.  The district court treated the motion as a petition for postconviction relief and denied it without holding an evidentiary hearing because all of the issues raised were either addressed, or could have been addressed, in appellant's direct appeal.  This appeal followed.

 

D E C I S I O N

 

            A postconviction proceeding is reviewed only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and the decisions of a postconviction court will not be disturbed unless the court abused its discretion.  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).  A postconviction court and reviewing appellate court generally will not consider matters that were raised on direct appeal, or known at the time of the direct appeal but not raised.  Id.; State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn. 1976).  "The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not ‘deliberately and inexcusably' fail to raise on direct appeal."  Sanders, 628 N.W.2d at 600.

            Appellant claims that (1) the district court violated the double jeopardy clause of the federal and state constitutions by imposing multiple punishment for the same offense; (2) his sentence was excessive, unreasonable, and unjustified; and (3) the district court relied on inappropriate factors to impose an upward sentencing departure.  Appellant challenged the imposition of separate sentences in his direct appeal and challenged the sentence departure in his pro se supplemental brief on direct appeal.  He also could have raised the double jeopardy issue at that time.  The double jeopardy issue does not fall under the exceptions to the Knaffla rule; therefore the district court did not abuse its discretion by denying appellant's petition for postconviction relief.

            In his reply brief, appellant, for the first time, challenged his sentence under the United States Supreme Court opinion in Blakely v. Washington, announced on June 24, 2004.  124 S. Ct. 2531 (2004).  Blakely held that upward departures from Washington state's sentencing guidelines not based solely on facts reflected in a jury verdict or admitted by the defendant, violate the Sixth Amendment to the United States Constitution and are invalid.  Id. at 2537-38.  Blakely is an expansion of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) (holding 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).  Apprendi was announced on June 26, 2002, a month before appellant's direct appeal became final.  

            We recognize that the timing of the release of the Blakely opinion made it impossible for appellant to raise this issue in the district court or in his brief on this appeal but it was improper for appellant to raise this issue in his reply brief.  "The reply brief must be confined to new matter raised in the brief of the respondent."  Minn. R. Civ. App. P. 128.02, subd. 3; See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990) (stating issues not raised in appellate brief are waived and cannot be revived by addressing them in reply brief).  And the "fundamental rule that this court will not decide issues which are raised for the first time on appeal, has not been subject to an exception where the tardily raised errors consist of allegedly unconstitutional criminal procedures."  State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976) (citation omitted).  We therefore decline to address this issue and affirm denial of the postconviction motion that was before the district court.  Our decision is without prejudice to appellant's ability to petition the district court for relief under Blakely.

            Affirmed.