State v. Houston, No. A04-324.

• Citation: 702 N.W.2d 268
• Decision Date: 18 August 2005
• Docket Number: No. A04-324.
• Parties: STATE of Minnesota, Respondent, v. Gerald E. HOUSTON, Appellant.
• Court: Supreme Court of Minnesota (US)

702 N.W.2d 268

STATE of Minnesota, Respondent, v. Gerald E. HOUSTON, Appellant.

No. A04-324.

Supreme Court of Minnesota.

August 18, 2005.

John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Elk River, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, G. BARRY, Justice.

On October 10, 2001, appellant Gerald E. Houston was convicted of one count of attempted first-degree controlled substance crime, Minn.Stat. §§ 152.021, subd. 2a (2000), 609.17 (2004), and one count of fifth-degree controlled substance crime, Minn.Stat. § 152.025, subd. 2(1) (2004), arising from his possession, in his motor vehicle, of several items necessary to manufacture methamphetamine. The district court sentenced Houston to 240 months in prison under the "career offender statute," Minn.Stat. § 609.1095, subd. 4 (2004). This was a substantial upward durational departure from the presumptive guidelines sentence that the court determined was 80½ months (Houston's offense carried a severity level of VIII and Houston had a criminal history score of 7). Minn. Sent. Guidelines IV, II.G. The district court based the upward departure on a finding that (1) Houston had been convicted of at least five previous felonies, and (2) the current crime was committed as "part of a pattern of criminal behavior." Houston appealed, the court of appeals affirmed, and this court denied review. State v. Houston, 2002 WL 31892561 (Minn.App. Dec.31, 2002), rev. denied (Minn. Mar. 18, 2003).

Houston petitioned for postconviction relief challenging the length of his sentence under Neal v. State, 658 N.W.2d 536 (Minn.2003). The postconviction court upheld Houston's sentence against that challenge. While his appeal of the postconviction court's decision was pending, the U.S. Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The parties briefed and argued to the court of appeals the applicability of Blakely to Houston's sentence. The court of appeals held that Houston could not benefit from Blakely because Blakely announced a new rule of constitutional criminal procedure, and under our retroactivity jurisprudence, a new rule does not apply once all direct appeals have been exhausted. State v. Houston, 689 N.W.2d 556, 559-560 (Minn.App.2004). The court of appeals also concluded that because Blakely was not a "watershed" rule, Blakely is not subject to retroactive application on collateral review. Id. at 560. The parties do not dispute that Blakely is applicable to upward durational departures under the Minnesota Sentencing Guidelines, and we granted review on the limited issue of the retroactivity of Blakely.

I.

Whether Blakely applies retroactively to convictions final at the time Blakely was decided is a purely legal issue which this court reviews de novo. See O'Meara v. State, 679 N.W.2d 334, 338 (Minn.2004)

. Our jurisprudence on retroactivity, most recently set out in O'Meara, recognizes that the retroactivity principles of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), control when we are faced with a federal constitutional rule of criminal procedure. See O'Meara, 679 N.W.2d at 339. Under Teague, we first ask whether the rule of federal constitutional criminal procedure is new, or whether it is merely a predictable extension of a pre-existing doctrine. Id. at 301, 109 S.Ct. 1060. If the rule is considered "new," it must be applied to all cases pending on direct review—cases where the availability of direct appeal has not been exhausted and the time for a petition for certiorari has not elapsed. O'Meara, 679 N.W.2d at 339-40. A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for post-conviction relief) does not receive the benefit of a "new" rule of constitutional criminal procedure. Id.

Teague, however, lays out two exceptions to this rule. When either of these exceptions applies, the new rule of constitutional criminal procedure must be given full retroactive effect, such that it is available to all defendants similarly situated, even though the defendant is seeking collateral review. Teague, 489 U.S. at 311,109 S.Ct. 1060. The first exception, not relevant here, applies whenever the new rule places certain specific conduct "beyond the power of the criminal law-making authority to proscribe." See id. The second exception, known as the "watershed rule" exception, applies when the new rule "requires the observance of those procedures that * * * are implicit in the concept of ordered liberty" or "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction." Id. (emphasis in original, internal quotation marks omitted, omissions in original).

Houston argues that Blakely did not announce a new rule of constitutional criminal procedure because it was dictated by the Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore the Blakely rule dates back to Apprendi, which was decided before his direct appeal was exhausted. In the alternative, Houston argues that, if Blakely did announce a "new" rule, then that rule is a "watershed" rule under the second Teague exception, and Blakely must be given full retroactive effect. We disagree with both arguments.

II.

The Supreme Court held in Teague that a rule of constitutional criminal procedure is new if it is not "dictated" by precedent. 489 U.S. at 301, 109 S.Ct. 1060. This principle serves to "validat[e] reasonable, good-faith interpretations of existing precedents made by state courts even though they are later shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). This "serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered." Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). The principle of finality is key, as the doctrine is aimed at blocking the formation of a "mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine." Id. Thus, it is not enough that a new constitutional rule of procedure is logically an extension of some precedent, as that is true of virtually all recently announced rules, but rather the test is whether "reasonable jurists hearing petitioner's claim at the time his conviction became final `would have felt compelled by existing precedent' to rule in his favor." Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (emphasis added).

In the context of the present case, Blakely altered the meaning of "statutory maximum" for purposes of Apprendi. Apprendi held that any fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. Prior to Blakely, "statutory maximum" was generally thought to mean the heaviest penalty a court could impose on a defendant—the ceiling of the relevant statutory sentencing range. See Harris v. United States, 536 U.S. 545, 562-63, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)

(concluding that a mandatory minimum sentencing statute did not raise Apprendi concerns because the statute did not increase the penalty for the offense above the prescribed statutory maximum). Blakely altered this understanding, holding that the maximum punishment for Apprendi purposes is the maximum sentence the judge may impose based solely upon those facts either reflected in the jury verdict or admitted by the defendant, which meant the presumptive sentence under the Washington state sentencing guidelines. Blakely, 542 U.S. at ___, 124 S.Ct. at 2537.

Although the Supreme Court did not speak directly on the retroactivity issue, United States v. Booker supports the "new rule" analysis. See 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, applying Blakely to the federal sentencing guidelines, the Supreme Court noted, "we must apply today's holdings— both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act—to all cases on direct review." Id. at ___, 125 S. Ct at 769. Booker then applied the rule from Griffith v. Kentucky that a new rule in a criminal prosecution is applied "retroactively to all cases * * * pending upon direct review or not yet final." Id. (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Although the Supreme Court did not finally tie it up neatly, this language suggests that Booker was a new rule for Teague purposes. Booker merely applied the rule of Blakely in a new context—federal sentencing—and Booker qualified as a new rule. Blakely altered our prior understanding of "statutory maximum" in a much more fundamental way, applying the rule of Apprendi in the context of state sentencing guidelines, and is therefore also a new rule.¹

But we need not divine the intentions of the Supreme Court. That reasonable jurists disagreed about the result reached in Blakely is clear: the decision was issued by a closely divided five to four court. Further, as Justice O'Connor noted in her Blakely dissent, prior to Blakely, only one court had previously reversed an upward departure from a guidelines sentence. 542 U.S. at ___ n. 1, 124 S.Ct. at 2547 n. 1 (O'Connor, J., dissenting); see State v. Gould, 271 Kan. 394, 23 P.3d 801, 814 (2001)

. We have previously held that the maximum sentence authorized by the jury's verdict was the maximum penalty...