Shah Aziz, petitioner, Appellant, vs. State of Minnesota, Respondent.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006). STATE OF MINNESOTA IN COURT OF APPEALS A07-2080 Shah Aziz, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed September 23, 2008 Affirmed Toussaint, Chief Judge Hennepin County District Court File No. 98063932 Shah Aziz, #137424, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant) Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent) Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Stoneburner, Judge. UNPUBLISHED OPINION TOUSSAINT, Chief Judge Appellant Shah Aziz challenges the order denying his petition for postconviction relief, arguing that the amendment to Minn. Stat. § 244.10 (2004), precipitated by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), is a new substantive rule that applies to his sentence. Because Blakely has been held not to apply retroactively, we affirm. DECISION As a result of his 1999 conviction of kidnapping, appellant was sentenced to 210 months in prison, an upward durational departure from the presumptive guideline sentence based on certain aggravating factors not found by a jury. He argues that his sentence violates Blakely. Id. at 303-05, 124 S. Ct. at 2537-38 (holding that Sixth Amendment to United States Constitution guarantees right to have jury determine beyond reasonable doubt any fact, other than prior conviction, that increases punishment for offense beyond maximum authorized by jury s verdict and defendant s admissions). When reviewing a postconviction court s denial of relief, this court examines issues of law de novo. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). In response to Blakely, the legislature amended Minn. Stat. § 244.10, subd. 5(a), to read: When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state s request for an aggravated departure from the Sentencing Guidelines as provided in 2 paragraph (b) or (c) [addressing when the proceeding is to be unitary or bifurcated]. Minn. Stat. § 244.10, subd. 5(a) (Supp. 2005); see 2005 Minn. Laws ch. 136, art 16, § 4. The amendments became effective June 3, 2005. Id. Appellant acknowledges that his case was final before the 2005 amendments became effective but contends that he is entitled to retroactive application of the statute because the amendments are substantive changes. But Minnesota statutes are not given retroactive application unless clearly and manifestly so intended by the legislature. Minn. Stat. § 645.21 (2006).1 Here, the amendments to Minn. Stat. § 244.10, subd. 5(a), became effective on June 3, 2005, and the legislature did not express an intention for them to apply retroactively. See 2005 Minn. Laws ch. 136, art. 16, § 4. Appellant relies on Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519 (2004), and Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), for the proposition that a new substantive rule of law must be applied retroactively. But this reliance is misplaced because these cases address whether a new rule of law established by a decision of a court should be applied retroactively. See Schriro, 542 U.S. at 351, 124 S. Ct. at 2522 (stating that new substantive rule announced by United States Supreme Court must be applied retroactively); Teague, 489 U.S. at 310-11, 109 S. Ct. at 1075 (assessing whether new rule of law established by case precedent must be given retroactive effect). Although the amendments to Minn. Stat. § 244.10, subd. 5(a), were precipitated by Blakely, they were enacted by the legislature. 1 This statutory directive also applies to the amendment of existing laws. See, e.g., Rural Am. Bank of Greenwald v. Herickhoff, 485 N.W.2d 702, 706-07 (Minn. 1992). 3 Finally, settled precedent precludes application of the Blakely rule to cases that were final at the time Blakely was decided. See State v. Houston, 702 N.W.2d 268, 270273 (Minn. 2005) (concluding that Blakely was not watershed rule under Teague analysis and applies retroactively only to cases on direct review when it was released). Thus, the district court did not err in denying appellant postconviction relief. Affirmed. 4
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