O'MEARA v. State, No. C0-02-1982.

• Citation: 679 N.W.2d 334
• Decision Date: 13 May 2004
• Docket Number: No. C0-02-1982.
• Parties: Timothy John O'MEARA, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

679 N.W.2d 334

Timothy John O'MEARA, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. C0-02-1982.

Supreme Court of Minnesota.

May 13, 2004.

Mark D. Nyvold, St. Paul, MN, for Appellant.

Mike A. Hatch, Minnesota Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, Tricia Lynne Matzek, Assistant Attorney General, St. Paul, MN, Joseph A. Evans, Becker County Attorney, Detroit Lakes, MN, for Respondent.

Heard, considered and decided by the court en banc.

OPINION

ANDERSON, RUSSELL A., Justice.

In this case, we consider the circumstances under which a criminal defendant is entitled to benefit from a new rule of federal constitutional criminal procedure announced by the United States Supreme Court. The precise question we face is whether appellant Timothy John O'Meara's criminal case was "pending" when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), thus entitling him to the benefit of the rule announced in that decision, namely, 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.¹ The state concedes that if O'Meara is entitled to benefit from the Apprendi rule, his sentence was imposed in violation of Apprendi, and must therefore be reduced. We hold that if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.

Our holding today implicitly requires us to determine when a case is pending on direct review. We further hold that a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied. Because we conclude that O'Meara's case was pending when Apprendi was decided, he is entitled to benefit from the rule announced in that decision. We reverse and remand for imposition of the statutory maximum sentences of two consecutive 25-year terms under Minn.Stat. §§ 609.108, subd. 1, and 609.343, subd. 2 (1998), plus the conditional release term of 10 years mandated by Minn.Stat. § 609.109, subd. 7(a) (1998).

The underlying facts of this case are not in dispute. O'Meara waived his right to a jury trial and agreed to submit his case to the district court based on stipulated facts. See Minn. R.Crim. P. 26.01, subds. 1(2)(a) and 3; State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). O'Meara stipulated that in May 1999, he and N.H., who was then age 10, were alone together at O'Meara's home and that a video camera was used to record his activities with N.H. O'Meara also stipulated that in June 1999, he was similarly alone at his house with B.K., who was then age 9, and that a video camera was also used to record his activities with B.K. Pursuant to a valid search warrant, police seized the videotape used to record the encounters. The videotape showed the two boys naked and showed O'Meara instructing them to masturbate. Detective John Sieling, who had watched the videotape, testified that O'Meara had put his hands on B.K.'s penis "three to four times." Detective Sieling also testified that O'Meara had put his hands on N.H.'s penis. O'Meara was convicted of two counts of second-degree criminal sexual conduct under Minn.Stat. § 609.343, subd. 1(a)(2) (1998).

The state requested that O'Meara be sentenced as a patterned sex offender pursuant to Minn.Stat. § 609.108, subd. 2. The state further requested that O'Meara be sentenced to the "maximum term allowed by law," or 40 years for each conviction pursuant to the same statute. The state also requested consecutive sentences. At O'Meara's sentencing hearing, Dr. Rick Ascano, the licensed psychologist who examined O'Meara, testified that (1) he has experience assessing sex offenders; (2) he conducted a clinical interview with O'Meara, performed a battery of psychological tests on him, and reviewed various documents related to his history of sexual misconduct; (3) he is familiar with the statutory definition of "patterned sex offender"; and (4) in his opinion, O'Meara is a patterned sex offender and a risk to public safety.

Specifically, Dr. Ascano testified that O'Meara (1) attempts to rationalize and justify his actions, and therefore attempts at rehabilitation will be hindered; (2) "is the type of individual who feel[s] more comfortable reaching out to vulnerable individual[s], i.e., children, in order to meet his emotional needs"; (3) has the "fairly significant or severe sexual problem of having psychosexual abnormality"; (4) is self-indulgent; (5) is passive-aggressive and resistant to dynamics imposed on him; (6) admitted to Dr. Ascano that "Deep down it excites me" in regard to having contact with children; (7) premeditatedly tries to access young children by dating or socializing with their mothers; (8) "is in need of a long-term treatment intervention and preferably in a structured environment, meaning not outpatient"; and (9) has a "significantly high" risk of reoffending.

Dr. Ascano testified that O'Meara required a minimum of 3 to 5 years of treatment and that rehabilitation might be impossible. He further testified that a prison term of 5 years would be inadequate to rehabilitate O'Meara if he lacked the "proper motivation." Dr. Ascano also testified that it was "questionable" that the presumptive sentence would be adequate because of O'Meara's 20-year history of sexual misconduct. Furthermore, the Presentence Investigation Report received by the district court included a victim impact statement which detailed the extensive trauma both minor victims have suffered.

The district court found that O'Meara is a danger to public safety because (1) he has two prior felony convictions for criminal sexual conduct; (2) he committed the acts with the two boys "shortly after [he] was released and while he was on parole" for the prior convictions; and (3) he "violated a position of trust in committing the acts perpetrated upon" the boys because "he was entrusted with the safekeeping of the victims while they spent the night at his house." The court also found that, based on Dr. Ascano's report, O'Meara is "in need of long-term treatment * * * beyond the presumptive term of the imprisonment and supervised release." The court further found that O'Meara's offenses "were motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration." Based on these findings, the court concluded that O'Meara is a patterned sex offender and sentenced him under the provisions of Minn.Stat. § 609.108, subds. 1 and 2, to two consecutive 40-year prison terms with a conditional release period of 10 years upon completion of the prison sentence.

In August 2000, O'Meara filed a notice of appeal of his conviction and sentence, but this notice was filed 3 days after the appeal deadline had passed, and thus was dismissed. In April 2002, O'Meara petitioned for postconviction relief. He argued that (1) his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the factors supporting the sentence were not submitted to a jury and proven beyond a reasonable doubt; (2) Dr. Ascano's testimony does not support a finding that O'Meara is a patterned sex offender; (3) his sentence violates due process and equal protection; (4) his sentence is unreasonable, inappropriate, and excessive; (5) the imposition of consecutive sentences under the patterned-sex-offender statute requires the presence of "severe aggravating factors," which he contended were not present; (6) the district court failed to use a zero criminal-history score when it imposed a consecutive sentence for his second conviction; and (7) his sentence constitutes cruel and unusual punishment.

The district court denied O'Meara's petition and the court of appeals affirmed, relying on the federal rule of nonretroactivity for new constitutional rules of criminal procedure. See O'Meara v. State, No. C0-02-1982, 2003 WL 21743557, at *3 (Minn.App. July 29, 2003) (applying rule from Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) that, subject to two narrow exceptions, a new constitutional rule of criminal procedure is not applied retroactively to cases on collateral review). We granted O'Meara's petition for further review, directing the parties to address the question of the appropriate test to be applied for determining when a new constitutional rule should be retroactively applied on review of a conviction under the Postconviction Remedy Act, Minn.Stat. ch. 590 (2002).

I.

The determination of whether a decision applies retroactively or nonretroactively is a legal question that we review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002). O'Meara claims that, like Grossman, he is entitled to benefit from the Apprendi rule, because Apprendi was decided prior to the expiration of his direct appeal period. O'Meara urges us to ignore the fact, however, that unlike Grossman, he failed to perfect a direct appeal. O'Meara essentially argues that his case was not final, because he still had time to appeal when Apprendi was decided.

It is axiomatic that as Minnesota's highest court we determine whether our decisions on state law are given retroactive or prospective effect. American Trucking Associations v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990). In this capacity, we have applied retroactive treatment to cases which are pending when a new rule is announced. See State v. Baird, 654 N.W.2d 105, 110 (Minn.2002) (holding that our ruling in State v. Glowacki, 630 N.W.2d 392 (Minn.2001) that there was no duty to retreat from one's own home even if the aggressor is a co-resident, applied retroactively because Baird's...