
    Lance Martin ODEGARD, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A08-2012.
    Court of Appeals of Minnesota.
    June 16, 2009.
    
      Glenn P. Bruder, Mitchell, Bruder & Johnson, Edina, MN, Tristam 0. Hage, New Brighton, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Keith Helgeson, Yellow Medicine County Attorney, Granite Falls, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; BJORKMAN, Judge; and MUEHLBERG, Judge.
    
    
      
       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.
    
   OPINION

BJORKMAN, Judge.

In this appeal from the district court’s denial of postconviction relief, appellant argues that his 2003 guilty plea should be vacated or his conviction modified based on the supreme court’s decision in Wiltgen. Because we conclude that Wiltgen does not apply retroactively to convictions that were final when Wiltgen was decided, we affirm.

FACTS

On March 19, 2003, appellant Lance Odegard pleaded guilty to first-degree driving while impaired (DWI), a felony violation of MinmStat. §§ 169A.20, subd. 1(1), 169A.24 (2002). The statutory aggravating factors that elevated Odegard’s DWI to a felony were two prior DWI convictions from 1998 and 2001 and a May 2002 implied-consent driver’s license revocation.

On May 8, 2008, Odegard petitioned for postconviction relief, arguing that his 2002 license revocation was not a valid aggravating factor because he had requested but not yet obtained judicial review of the revocation. Odegard argued that his guilty plea should be vacated or modified because Wiltgen precludes using an unre-viewed driver’s license revocation as a statutory aggravating factor to enhance a DWI offense. The district court denied Odegard’s petition, concluding that Wilt-gen was factually distinguishable and did not apply retroactively to Odegard’s conviction. This appeal follows.

ISSUE

Does Wiltgen apply retroactively to cases that were final when Wiltgen was decided?

ANALYSIS

“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.” Greer v. State, 673 N.W.2d 151,154 (Minn. 2004). We will not reverse the postconviction court’s decision absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). But we review de novo a postconviction court’s legal conclusions, such as whether a decision applies retroactively. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003); see also Erickson v. State, 702 N.W.2d 892, 896 (Minn.App. 2005) (“Whether or not a decision applies retroactively is a question appellate courts review de novo.”).

Odegard does not dispute that his conviction was final before the supreme court decided Wiltgen but contends that Wiltgen should apply retroactively to his 2003 conviction. The supreme court decided WSi-gen on August 23, 2007. 737 N.W.2d at 561. Asked principally to decide the constitutionality of enhancing a DWI eonviction from third degree to second degree based on an unreviewed driver’s license revocation, the supreme court held that when judicial review of an administrative license revocation has been requested but not yet provided, the use of the license revocation to establish an aggravating factor for a subsequent DWI charge would violate the defendant’s right to due process. Id. at 564, 570.

To determine whether Wiltgen applies retroactively to Odegard’s conviction, we must first identify the proper retroactivity standard. Minnesota courts follow the ret-roactivity standard set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), when addressing new rules of federal constitutional criminal procedure. See Danforth v. State, 761 N.W.2d 493, 498-99 (Minn.2009) (stating that “Teague may not be a perfect rule, but we believe it is preferable to the alternatives”). But our supreme court has traditionally distinguished between retroactive application of new rules of federal constitutional criminal procedure and retroactive application of its own decisions. E.g., O’Meara v. State, 679 N.W.2d 334, 338-39 (Minn.2004) (distinguishing between state supreme court’s role in determining retroactivity of decisions on state law and United States Supreme Court’s role in determining retroactivity of new rules of federal criminal procedure). Wilt-gen was a state decision, applying federal constitutional principles to a circumstance created by state statute. We therefore recognize the supreme court’s authority to apply a retroactivity standard other than Teague to Wiltgen.

Nonetheless, our review of recent retro-activity cases leads us to conclude that the supreme court would apply the Teague standard here. The supreme court has applied a Teague-based standard in previous cases to preclude retroactive application of its own new rules of law announced after the challenged conviction became final. See, e.g., Stiles v. State, 716 N.W.2d 327, 329 (Minn.2006) (rejecting postconviction challenge based on State v. Dahlin, 695 N.W.2d 588 (Minn.2005), and citing O’Meara and Teague for proposition that “if a defendant’s conviction was already final at the time the new rule of law was announced, the defendant ordinarily may not take advantage of the new rule because it will not be retroactive”); cf. Hutchinson v. State, 679 N.W.2d 160, 164-65 (Minn.2004) (holding that State v. Misquadace, 644 N.W.2d 65 (Minn.2002), “was not based on an interpretation or clarification of [statute],” but “established a new rule of law” and, therefore, does not apply to a conviction final before it was decided). We also observe that the supreme court’s Danforth opinion favored Teague as “a bright line rule on the issue of when relief is to be retroactive.” 761 N.W.2d at 499 (citing O’Meara, 679 N.W.2d at 339 for “where that line is drawn”). We view this statement as an indication that the supreme court prefers a uniform retroactivity standard, applicable to all new rules of constitutional criminal procedure — state and federal — announced after a conviction becomes final. We therefore apply the Teague standard to Odegard’s retroactivity argument.

Under Teague, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S. at 310, 109 S.Ct. at 1075. In assessing retroactivity under Teague, therefore, we first ask whether the rule is new or merely a predictable extension of a pre-existing doctrine. Id. at 301, 109 S.Ct. at 1070. A new rule will be given retroactive effect in cases that had become final only if one of the two Teague exceptions applies. Danforth, 761 N.W.2d at 496. The first exception applies when the new rule “places certain specific conduct beyond the power of the criminal lawmaking authority to proscribe.” Id. (citing Teague, 489 U.S. at 311-12, 109 S.Ct. at 1075-76). The second applies when the new rule “is a ‘watershed’ rule of criminal procedure ... without which the likelihood of an accurate conviction would be seriously diminished.” Id. (citing Teague, 489 U.S. at 311-12, 109 S.Ct. at 1075-76).

Odegard asserts that Wiltgen did not announce a “new rule” within the meaning of Teague. Odegard correctly observes that Wiltgen did not overrule a previous decision. But the Wiltgen ruling “was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070. To the contrary, our jurisprudence preceding Wiltgen established that the availability of judicial review of a license revocation, whether or not exercised, was sufficient to satisfy due process. See State v. Goharbawang, 705 N.W.2d 198, 202-03 (Minn.App.2005) (holding that availability of judicial review of license revocations effective only days before arrest for enhanced DWI offense was sufficient to satisfy due process even though no review took place prior to arrest), review denied (Minn. Jan. 17, 2006); State v. Coleman, 661 N.W.2d 296, 301 (Minn.App.2003) (“Because [the defendant] had the opportunity for meaningful judicial review of ... revocation of his driving privileges, use of the revocation as an aggravating factor did not violate his due-process rights.”), review denied (Minn. Aug. 5, 2003). And when we decided Wiltgen, we held, based on Goharbawang, “that the availability of a statutory mechanism for judicial review of the revocation satisfied due process where Wiltgen ‘affirmatively procured a collateral stay’ and took no action to advance the implied consent review petition to the hearing stage.” 737 N.W.2d at 565 (quoting State v. Wiltgen, No. A06-152, 2006 WL 1320594, at *3-*4 (Minn.App. May 16, 2006)). Odegard even concedes that “Wiltgen had a broad prospective application and in that sense, was ‘new.’ ” We conclude that Wiltgen established a new rule.

Odegard next argues that the Teague exceptions apply so that Wiltgen must be applied retroactively to cases on collateral review. He first argues that Wiltgen did not declare a constitutional rule of criminal procedure but merely clarified the substantive elements of first-degree DWI. We disagree. Wiltgen addressed a classic procedural concern — a defendant’s opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” (quotation omitted)). And as the state points out, the Wiltgen court determined that “use of an unreviewed [license] revocation to enhance a subsequent DWI rises to the level of a violation of [the] right to procedural due process.” 737 N.W.2d at 570 (emphasis added). Indeed, the procedural nature of the Wiltgen decision is underscored by the supreme court’s observation that the state can alter its charging procedures to satisfy the judicial review requirement and still prosecute enhanced DWI offenses. Id. at 572 n. 7. Because Wiltgen established a procedural rule and did not affect the scope of conduct that the criminal law-making authority may proscribe, the first Teague exception does not apply.

We also reject Odegard’s contention that if Wiltgen announced a new rule of constitutional criminal procedure, the second Teague exception applies because the rule “seems to meet” the definition of a “watershed” rule. “To be a watershed rule, the new rule must be one without which ‘the likelihood of an accurate conviction is seriously diminished.’ ” State v. Houston, 702 N.W.2d 268, 273 (Minn.2005) (quoting Teague, 489 U.S. at 313, 109 S.Ct. at 1077). It is not enough for a rule to improve the accuracy of proceedings; it must “alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Id. (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1076); see also Danforth, 761 N.W.2d at 499 (affirming Teague “watershed” rule retroactivity principle based on finality interests over broader standard that would apply “where the absence of the new rule seriously diminished the accuracy of the trial but did not affect the fundamental fairness of the criminal proceeding”). Under this stringent standard, “[rjules qualifying under the second Teague exception as ‘watershed’ rules are extremely rare.” Houston, 702 N.W.2d at 273.

Wiltgen determined that “[ujsing a license revocation as a conclusive element of a crime when judicial review has been requested but has not yet occurred greatly increases the risk of an erroneous deprivation” of the defendant’s liberty. 737 N.W.2d at 569. But while the Wiltgen court held that this risk was sufficient to raise due process concerns, the court did not specifically determine that use of unre-viewed license revocations to enhance a DWI offense was fundamentally unfair. The announcement of a new rule designed to safeguard constitutional rights does not necessarily “alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Houston, 702 N.W.2d at 273; cf. Tyler v. Cain, 533 U.S. 656, 666-67 & n. 7, 121 S.Ct. 2478, 2484 & n. 7, 150 L.Ed.2d 632 (2001) (rejecting the notion that “all new rules relating to due process” or even all new structural rules necessarily qualify as watershed rules).

We note that our supreme court declined to give retroactive application to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), even though the Sixth Amendment rights those cases address are undisputedly central to the accuracy of a trial or sentence. Danforth v. State, 718 N.W.2d 451, 460 (Minn. 2006), rev’d on other grounds, — U.S. -, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); Houston, 702 N.W.2d at 273. The rule announced in Wiltgen is far narrower than those announced in Blakely and Crawford, and “it has none of the primacy and centrality of the rule adopted in Gideon [v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ],” the only case the United States Supreme Court has ever recognized as qualifying under the watershed-rule exception. Beard v. Banks, 542 U.S. 406, 417-20, 124 S.Ct. 2504, 2514-15, 159 L.Ed.2d 494 (2004) (quotation omitted). We therefore conclude that Wiltgen did not announce a watershed rule that merits retroactive application to Odegard’s 2003 conviction.

DECISION

Wiltgen is not a “watershed” new rule of constitutional criminal procedure that applies to cases on collateral review. Accordingly, the district court properly denied appellant’s petition for postconviction relief.

Affirmed.  