No Retroactive Application of "New Rule" Announced in State v. Her

State v. Meger, Minn.S.Ct., 9/20, 2017.  Mr. Meger pleaded guilty to failure to register as a predatory offender in exchange for a downward departure sentence.  Because the sentence did not include a conditional release period, which should have been imposed because Mr. Meger was a risk-level III offender, the trial court eventually amended Mr. Meger's sentence to include a ten year conditional release period.  This was all going on back in 2006-07.  

Roughly nine or so years later the Minnesota Supreme Court said that the fact of being a risk-level III offender had either to be admitted by the defendant or found by a jury beyond a reasonable doubt before a court could impose this ten year conditional release period.  State v. Her, 862 N.W.2d 692 (Minn. 2015).  By this time, Mr. Meger had long since served his sentence and so his conviction was "final" for purposes of retroactivity jurisprudence.  He sought to have Her applied retroactively to his conditional release period.

Mr. Meger only argued that Her was an "old rule" which Teague says applies both to cases on direct review and to cases on collateral attack.  He said that this is so because Her is nothing more than an application of the Blakeley" decision -plead and prove the facts to get a longer sentence than would otherwise be the case -to the specific circumstances of Mr. Her. Justice McKeig says that, no,  that Her is a "new" rule and thus does not apply retroactively to a decision that is "final."  Teague v. Lane, 489 U.S. 288 (1989); Danforth v. State, 761 N.W.2d 483 (Minn. 2009).   After reviewing a bunch of cases she concludes:

Without the benefit of Descamps and Her, and considering our holdings in Allen, Henderson, and McFee, reasonable jurists at the time Meger’s amended sentence became final would not have felt compelled by existing precedent to rule in his favor on the question of whether an offender’s risk level falls within the prior-conviction exception. Accordingly, we conclude that Her is a new rule that is not retroactive to Meger’s amended sentence. See Butler, 494 U.S. at 415; Houston, 702 N.W.2d at 271.