Meemken v. State
Decision Date | 03 June 2003 |
Docket Number | No. C2-02-1689.,C2-02-1689. |
Citation | 662 N.W.2d 146 |
Parties | James Joseph MEEMKEN, petitioner, Appellant, v. STATE of Minnesota, Respondent. |
Court | Minnesota Court of Appeals |
James Joseph Meemken, Stillwater Correctional Facility, Bayport, MN, pro se appellant.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN, and Roger S. Van Heel, Stearns County Attorney, St. Cloud, MN, for respondent.
Considered and decided by KALITOWSKI, Presiding Judge, LANSING, Judge, and MINGE, Judge.
Appellant challenges the denial of postconviction relief from an upward departure in his sentence on the ground that the facts supporting the upward departure were not submitted to the jury, thus violating his right to due process, as established by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because appellant is collaterally attacking his conviction, and because the Apprendi rule is not applied retroactively to collateral review, we affirm.
Appellant James Joseph Meemken was charged with one count of attempted criminal sexual conduct in the second degree and one count of solicitation of a child to engage in sexual conduct. In April 1998, a jury convicted appellant on both counts. On May 29, 1998, the district court sentenced appellant as a patterned sex offender under Minn.Stat. § 609.1352, subd. 1a (1996), and ordered him to serve a 240-month prison sentence for the attempt conviction. The sentence was an upward departure. At the time appellant was sentenced, the statutory maximum sentence for attempted second-degree criminal sexual conduct was 12 and a half years, or 150 months. See Minn.Stat. §§ 609.17, subd. 4(2), .343, subd. 1 (1996). As a basis for the upward departure, the district court listed aggravating circumstances, concluded that appellant was a patterned sex offender, and imposed a sentence that was authorized under the patterned sex-offender statute. See Minn.Stat. § 609.1352, subd. 1a ( ).
On direct appeal, appellant challenged (1) the district court's decision to allow the jury to review during deliberations a videotaped interview of the victim; and (2) the sufficiency of the evidence. This court affirmed appellant's convictions in State v. Meemken, 597 N.W.2d 582 (Minn.App. 1999), review denied (Minn. Sept. 28, 1999).
In April 2002, appellant filed a petition for postconviction relief arguing that facts which were a basis for his increased sentence were neither submitted to the jury nor proved beyond a reasonable doubt. Appellant relied on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the court held that with the exception of facts of a prior conviction, the jury must hear facts that increase the criminal penalty; and those facts must be proven beyond a reasonable doubt. The postconviction court denied relief because it found that the Apprendi rule does not apply retroactively to a collateral appeal.
Did the postconviction court properly deny appellant's collateral attack of his sentence seeking retroactive application of the Apprendi rule?
"A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity." Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000) (citing State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968)). The postconviction petitioner. "has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case." State v. Warren, 592 N.W.2d 440, 449 (Minn.1999) (quotation omitted). On review, an appellate court will not disturb the decisions of the postconviction court unless the postconviction court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). But a reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).
As we have already noted, appellant argues that his sentence was improper because any facts that increased his penalty beyond the normal statutory maximum should have been submitted to the jury and proved beyond a reasonable doubt. For this proposition, appellant relies on Apprendi, which was decided after appellant's direct appeal. In Apprendi, the Court announced the following rule:
Other than the fact of a prior conviction, 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.
Id. at 490, 120 S.Ct. at 2362-63. Following Apprendi, the Minnesota Supreme Court held that the patterned sex-offender statute violates due process because it increases the statutory maximum sentence for offenders sentenced under it based on findings by the sentencing court rather than the jury. State v. Grossman, 636 N.W.2d 545, 549 (Minn.2001).
But Apprendi and Grossman were decided after appellant's direct appeal, and they are only applicable if the rule announced in Apprendi applies retroactively on collateral review. Cf. Grossman, 636 N.W.2d 545, 549 (Minn.2001)
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Teague, 489 U.S. at 309, 109 S.Ct. at 1074.
In this case, we examine whether the Apprendi rule fits within the second Teague exception. The second Teague exception is reserved for truly watershed rules. Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 2832, 111 L.Ed.2d 193 (1990) ( ).1 The Supreme Court has underscored the narrowness of the second Teague exception by refusing to retroactively apply eleven new rules, or proposed new rules, of criminal procedure. See United States v. Mandanici, 205 F.3d 519, 529 (2nd Cir. 2000)
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