Christopher Andrew Hondl, petitioner, Appellant, v. State of Minnesota, Respondent.

No. A06-464.Minnesota Court of Appeals.
Filed January 9, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Steele County, File No. K3-02-1326.

Christopher A. Hondl, (pro se appellant).

Lori Swanson, Attorney General, and

Daniel A. McIntosh, Assistant Steele County Attorney, (for respondent)

Considered and decided by DIETZEN, Presiding Judge; LANSING, Judge; and KALITOWSKI, Judge.

UNPUBLISHED OPINION
DIETZEN, Judge.

In this postconviction appeal, appellant challenges the district court order, on remand from this court, which modified his sentence by concluding that he was eligible for supervised release, arguing that the original sentence imposing a double-upward departure of 60 months violated his right to a jury trial and was unconstitutional unde Blakely. Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS
While incarcerated in the Steele County jail, appellant Christopher Andrew Hondl punched another inmate in the face and broke his nose. Appellant was charged with third-degree assault, pursuant to Minn. Stat. § 609.223, subd. 1 (2002).

In December 2002, a jury found appellant guilty of third-degree assault, and in February 2003, appellant was sentenced to serve 60 months. This sentence was a double-upward departure from the sentencing guidelines’ presumptive sentence, authorized by the dangerous and repeat offender statute, which — at the time — permitted judges to impose higher sentences for felony offenders who had been previously convicted of two or more violent offenses if the judge determined the offender to be a danger to public safety.[1] Minn. Stat. § 609.1095, subd. 2 (2002). Under the mandatory sentencing provision of Minn. Stat. § 609.1095, subd. 3 (2002), which denies three-time violent offenders eligibility for probation, parole, discharge, or work release, the district court found that appellant was not eligible for supervised release.

Appellant appealed his conviction and sentence. This court affirmed his conviction but remanded for resentencing, finding that offenders sentenced to an upward departure under Minn. Stat. § 609.1095, subd. 2, are specifically excluded from subd. 3, which permits denial of supervised release. State v. Hondl, No. A03-492, 2004 WL 237359 at *3 (Minn.App. Feb. 10, 2004), review denied (Minn. Apr. 28, 2004) (Hondl I). This court concluded that “a felon sentenced under Minn. Stat. § 609.1095, subd. 2, would be entitled to supervised release pursuant to Minn. Stat. § 244.05, subd. 1b(a). And because the district court abused its discretion in denying appellant supervised release, we remand for resentencing.” Id.

In September 2004, the district court resentenced appellant by imposing the earlier 60-month sentence and, as required by this court’s remand order, found appellant eligible for supervised release. In December 2005, appellant moved for correction of his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, asserting that the upward departure under Minn. Stat. § 609.1095, subd. 2 (increased sentences for dangerous offenders who commit a third violent crime) is unconstitutional unde Blakely v. Washington. Following a hearing, the district court denied appellant’s motion, and subsequently denied his motion for reconsideration. This appeal follows.

DECISION I.
Appellant argues that the district court erred in denying his rule 27.03 motion for sentence modification. Minn. R. Crim. P. 27.03, subd. 9 (permitting court to correct a sentence not authorized by law). Appellant argues that the imposition of a double-upward departure deprived him of his right to a jury trial and was unconstitutional unde Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Because appellant raises a constitutional issue, we review the challenge de novo. State v. Robinson, 699 N.W.2d 790, 800 (Minn.App. 2005).

In Blakely, the U.S. Supreme Court held that the greatest sentence a judge can impose must be based solely on the facts reflected in the jury verdict or admitted by the defendant. Id. at 303, 124 S. Ct. at 2537. Therefore, an upward durational departure from the presumptive sentence based on the judge’s findings, rather than those of a jury, is invalid under the Sixth Amendment right to trial by jury. Id.

In State v. Shattuck, the Minnesota Supreme Court applie Blakely and concluded that for felonies other than first-degree murder, the presumptive sentence set forth in the sentencing guidelines is the maximum sentence a judge may impose on the basis of facts reflected in the jury verdict or admitted by the defendant. 704 N.W.2d 131, 141
(Minn. 2005). But while the Blakely decision created a new rule of constitutional criminal procedure, it is not a “watershed” rule of criminal procedure and, therefore, is not retroactively applicable to cases that were final prior to Blakely‘s effective date of June 24, 2004. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). A case is final when a “judgment of conviction has been rendered, the availability of appeal exhausted, and 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.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

Here, appellant’s conviction was final before the Supreme Court’ Blakely decision was filed. Specifically, his conviction was affirmed by this court, and his right to further challenge his conviction was exhausted before the decision in Blakely. But the district court’s order upon remand, which modified his sentence and determined that he was eligible for supervised release, occurred after the decision o Blakely.

Thus, appellant argues that the remand order of this court directed the district court to review not only its order denying appellant’s eligibility for supervised release, but also to review his double-upward departure to 60 months. We disagree. “It is well established that a trial court may not vary the mandate of an appellate court or decide issues beyond those remanded.” Harry N. Ray, Ltd. v. First Nat’l Bank of Pine City, 410 N.W.2d 850, 856 (Minn.App. 1987). On remand, it is the district court’s duty “to execute the mandate of the remanding court strictly according to its terms.” Duffey v. Duffey, 432 N.W.2d 473, 476
(Minn.App. 1988). See also U.S. v. Walterman, 408 F.3d 1084, 1085 (8th Cir. 2005) (declining to apply Blakely as beyond the scope of the remand where the case had been remanded only for resentencing without application of the career offender enhancement).

Here, the scope of the remand order was limited to reviewing the denial of eligibility for supervised release. Hondl I, 2004 WL 237359 at *3. The portion of the original district court order imposing a 60-month sentence was affirmed by this court and not subject to resentencing. That portion of the decision was final and, therefore, not subject to the benefit of Blakely.

II.
Appellant also argues that his sentence is unconstitutional unde Ring v. Arizona. 536 U.S. 584, 122 S. Ct. 2428 (2002). But appellant raises this issue for the first time on appeal. This court will generally not consider matters raised for the first time on appeal Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Thus, appellant waived the right to have his argument considered on appeal.

But even considering appellant’s argument, it fails. In Ring, the Supreme Court applied its ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) to capital offenders and found that any aggravating factors must be found by a jury if they increased a sentence beyond the statutory maximum. 536 U.S. at 589, 122 S. Ct. at 2432. Bu Ring and Apprendi are pre-Blakely decisions, and “[p]rior t 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.” Houston, 702 N.W.2d at 271.

Here, appellant was convicted of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2002). This statute authorizes a maximum imprisonment of “not more than five years.” Id. Appellant’s 60-month sentence is thus the maximum allowable under the statute. Because the sentence does not exceed the statutory maximum, Ring is not applicable.

Affirmed.

[1] This statute has been since amended to require th factfinder to determine whether the offender is a danger to public safety. 2005 Minn. Laws ch. 136, art. 16, §§ 11 and 12.