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State v. Kirby

Supreme Court of Minnesota

July 26, 2017

State of Minnesota, Respondent,
v.
Michael William Kirby, Appellant.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, Saint Paul, Minnesota; and Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, Saint Paul, Minnesota, for appellant.

          Robert Small, Executive Director, Minnesota County Attorneys Association, Saint Paul, Minnesota; and Phillip D. Prokopowicz, Assistant Dakota County Attorney, Hastings, Minnesota, for amicus curiae Minnesota County Attorneys Association.

         SYLLABUS

         The amelioration doctrine requires the resentencing of a person whose conviction was not yet final on the effective date of section 18(b) of the Drug Sentencing Reform Act. Sentence vacated; remanded.

          OPINION

          LILLEHAUG, Justice.

         Appellant Michael William Kirby was sentenced to 161 months in prison for first-degree possession of methamphetamine, Minn. Stat. § 152.021, subd. 2(a)(1) (2014). While his case was on appeal, the Drug Sentencing Reform Act (DSRA) took effect. See Act of May 22, 2016, ch. 160, 2016 Minn. Laws 576. The DSRA reduced the presumptive sentencing range under the Minnesota Sentencing Guidelines drug offender sentencing grid for Kirby's crime. Kirby asks that he be resentenced under the sentencing grid as amended by the DSRA. Because we conclude that such resentencing is required, we vacate Kirby's sentence and remand to the district court.

         FACTS

         On November 22, 2013, a Steele County Deputy arrested Kirby for possession of 70.525 grams of methamphetamine and 217.55 grams of marijuana. He was charged with first-degree possession of methamphetamine and fifth-degree possession of marijuana. A jury found him guilty of both counts.

         The case proceeded to sentencing. Kirby had a criminal history score of seven. Under the sentencing grid in effect at the time of Kirby's offense, the presumptive sentencing range was 138 to 192 months. See Minn. Sent. Guidelines 4.A (2013).[1] On October 22, 2014, the district court sentenced Kirby to 161 months in prison for first-degree possession of methamphetamine.

         Kirby appealed his case. While his appeal was pending, the Legislature passed, and the Governor signed, the DSRA, which reduced the presumptive sentencing range for Kirby's offense from 138 to 192 months to 110 to 153 months. See Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws 576, 590-91; Minn. Sent. Guidelines 4.C (2016). The DSRA was the product of input by diverse constituent groups within the criminal justice system, including county attorneys and criminal defense attorneys. The DSRA distinguishes between low-level, non-violent drug offenders and high-level, dangerous drug dealers by reducing sentences for the former class of offenders. See generally Act of May 22, 2016, ch. 160, 2016 Minn. Laws at 576-92. In turn, these reduced sentences are expected to reduce prison populations and prison costs, the savings from which will be used to fund a "Community Justice Reinvestment Account." Id. § 14, 2016 Minn. Laws at 588. Those funds are available to:

[l]ocal units of government and nonprofit organizations . . . for grants to establish or operate chemical dependency and mental health treatment programs, programs that improve supervision, including pretrial and precharge supervision, and programs to reduce recidivism of controlled substances offenders on probation or supervised release or participating in drug courts or to fund local participation in drug court initiatives.

Id., subd. 2.

         As relevant here, the DSRA changed the controlled-substance laws in several ways. First, the DSRA reduced the presumptive sentencing ranges for first-degree controlled-substance crimes. Id. § 18, 2016 Minn. Laws at 590-91. That section became "effective the day following final enactment, " which occurred when the governor signed the act on May 22, 2016. Id. Second, the DSRA increased the weight thresholds necessary for first-, second-, and third-degree possession of methamphetamine. Id. §§ 3-5, 2016 Minn. Laws at 577-82. Those sections became "effective August 1, 2016, and appl[y] to crimes committed on or after that date." Id. Third, the DSRA added aggravating factors that could be used to increase the degree of an offense for selling or possessing methamphetamine. Id. §§ 2-5, 2016 Minn. Laws at 576-83. Those sections became "effective August 1, 2016, and appl[y] to crimes committed on or after that date." Id. Finally, the DSRA created a new category of aggravated first-degree controlled-substance crimes. Id. § 3, subd. 2b, 2016 Minn. Laws at 577-79. That change became "effective August 1, 2016, and applies to crimes committed on or after that date." Id.

         Kirby appealed, challenging evidentiary rulings and the sufficiency of the evidence. On July 18, 2016, the court of appeals affirmed Kirby's convictions. State v. Kirby, No. A15-0117, 2016 WL 3884245 (Minn.App.). Due to the timing of the appeal and the effective date of the DSRA, the court of appeals was not able to consider the issue before us. We granted Kirby's petition for review on the issue we now decide: whether he is entitled to be resentenced under the sentencing grid as amended by the DSRA.

         ANALYSIS

         I.

         A.

         At the outset, it is important to understand what this case is not about: retroactivity. A change in law is considered to be retroactive when it applies to cases in which final judgment has already been entered. See Welch v. United States, __U.S.__, __, 136 S.Ct. 1257, 1264 (2016) (discussing the applicability of retroactivity to " 'cases which have become final' " (quoting Teague v. Lane, 489 U.S. 288, 310 (1989))).

         Instead, this case is about amelioration. The amelioration doctrine applies to cases that are not yet final when the change in law takes effect. See State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn. 1979) (discussing the applicability of an amended statute "as long as no final judgment has been reached"). A creature of common law, the doctrine is of long standing. See, e.g., Commonwealth v. Wyman, 66 Mass. (12 Cush.) 237, 239 (Mass. 1853) (citing Calder v. Bull, 3 U.S. 386 (1798)) (holding that "an act plainly mitigating the punishment of an offence" applied to cases that were not yet final); People v. Hayes, 35 N.E. 951, 952-53 (N.Y. 1894) (holding that the mitigating law applied "to offenses committed before its passage" where "a criminal case . . . is not yet final").[2]

         The question is whether the amelioration doctrine applies to Kirby, whose conviction was not yet final when the DSRA took effect. Although we have not used the phrase "amelioration doctrine" previously, four of our prior cases have followed and analyzed the doctrine. See Edstrom v. State, 326 N.W.2d 10 (Minn. 1982); Ani v. State, 288 N.W.2d 719 (Minn. 1980); State v. Hamilton, 289 N.W.2d 470 (Minn. 1979); Coolidge, 282 N.W.2d 511. Coolidge and Edstrom are particularly relevant to the question before us.

         In Coolidge, the defendant was convicted of criminal sexual conduct and sentenced to 10 years in prison. Coolidge, 282 N.W.2d at 512. Before final judgment was entered, the Legislature repealed and replaced the statute under which Coolidge was convicted, reducing the maximum sentence for his conduct from 10 years to 1 year. Id. at 512-14; see also Act of May 19, 1977, ch. 130, §§ 4, 10, 1977 Minn. Laws 220, 221-23. The act stated that the changes became effective "the day after final enactment, " but it did not say whether the changes applied to offenses committed before the effective date. Act of May 19, 1977, ch. 130, § 11, 1977 Minn. Laws at 223. We stated:

Under common law, the well-settled principle is that where criminal law in effect is repealed, absent a savings clause, all prosecutions are barred where not reduced to a final judgment. It is also true that a statute mitigating punishment is applied to acts committed before its effective date, as long as no final judgment has been reached. The rationale for such a rule is that the legislature has manifested its belief that the prior punishment is too severe and a lighter sentence is sufficient. Nothing would be accomplished by imposing a harsher punishment, in light of the legislative pronouncement, other than vengeance.

Coolidge, 282 N.W.2d at 514-15 (footnote and citations omitted).

         Applying these principles, we noted that "the law under which defendant was convicted was amended in part and repealed after the defendant's illicit acts were committed but before a final judgment had been reached." Id. at 515. We then concluded, "in light of the common law and the weight of greater logic, defendant should have been sentenced under the present law, which provides a maximum prison term of 1 year." Id. We ordered that the sentence be reduced accordingly. Id.

         In Coolidge, the Legislature was silent on whether the statutory change should be given ameliorative effect. Edstrom, by contrast, demonstrates the Legislature's ability to state its intent to abrogate the amelioration doctrine. In Edstrom, the defendant was convicted of aggravated rape and sentenced to 30 years in prison. 326 N.W.2d at 10. Before final judgment was entered, the Legislature enacted a new criminal sexual conduct statute that covered Edstrom's conduct but carried only a 20-year prison sentence. See id.; see also Act of June 5, 1975, ch. 374, § 3, 1975 Minn. Laws 1243, 1245-46. The new statute, however, included a clause captioned, "Applicability to Past and Present Prosecutions, " which stated, in relevant part, that "crimes committed prior to the effective date of this act are not affected by its provisions." Act of June 5, 1975, ch. 374, § 12, 1975 Minn. Laws at 1251. Edstrom's conduct occurred in March 1975, while the statute did not take effect until August of that year. See Edstrom, 326 N.W.2d at 10.

         In considering the effect of the statutory clause, we stated, "In Coolidge, we ruled that a statute mitigating punishment is to be applied to acts committed before its effective date, as long as no final judgment has been reached, at least absent a contrary statement of intent by the legislature." Id. We then determined that, in the act at issue in Edstrom, the Legislature had "clearly indicated its intent" that the amendments not apply to crimes committed prior to the effective date of the act. Id. Thus, we concluded that Edstrom was not entitled to the benefit of the new statute, which set a lower sentence for the crime that Edstrom had committed. Id.

         Reading Coolidge and Edstrom together, our rule of law is clear. An amended statute applies to crimes committed before its effective date if: (1) there is no statement by the Legislature that clearly establishes the Legislature's intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been entered as of the date the amendment takes effect.

         B.

         We now consider Kirby's case. Our precedent requires that he be resentenced under the DSRA-amended sentencing grid only if: (1) the Legislature made no statement that clearly establishes the Legislature's intent to abrogate the amelioration doctrine; (2) the amendment mitigated punishment; and (3) final judgment had not been entered as of the date the amendment took effect. The parties agree that the third requirement is satisfied, but dispute the first two requirements. We consider each in turn.

         1.

         The State acknowledges that the amelioration doctrine establishes a presumption in Minnesota that an amendment mitigating punishment applies to non-final cases. But the State argues that the presumption is "overcome by contrary legislative intent" in this case. Kirby argues that there is no such clear indication of the Legislature's intent to abrogate the amelioration doctrine.

         The effective-date provision for DSRA § 18 states, "This section is effective the day following final enactment." Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws at 591. This effective-date provision is almost identical to the language in the act that we interpreted in Coolidge. Compare Act of May 19, 1977, ch. 130, § 11, 1977 Minn. Laws at 223 (stating that the act is "effective the day after final enactment"), with Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws at 591 (stating that DSRA § 18 is "effective the day following final enactment"). We determined that the act containing this language did not abrogate the common-law amelioration doctrine. Coolidge, 282 N.W.2d at 514-15.

         The Legislature has instructed us that, "when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language." Minn. Stat. § 645.17(4) (2016). Thus, when the Legislature enacted language in DSRA § 18 mirroring the language of the act that we interpreted in Coolidge, we may assume that the Legislature intended the DSRA to carry the same meaning as the act at issue in Coolidge.

         Moreover, the Legislature knows how to expressly abrogate the amelioration doctrine, as it did in the act at issue in Edstrom, 326 N.W.2d at 10. There is no language in DSRA § 18 that resembles the language at issue in Edstrom. See Act of June 5, 1975, ch. 374, ยง 12, 1975 Minn. Laws at 1251 (titled "Applicability to Past and Present Prosecutions, " and stating, "Except for section 8 of this act, crimes committed prior to the effective date of this act are not affected by its provisions"). Here, the Legislature has not "clearly indicated ...


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