of Appeals Office of Appellate Courts
Swanson, Attorney General, Michael Everson, Assistant
Attorney General, Saint Paul, Minnesota; and Daniel A.
McIntosh, Steele County Attorney, Owatonna, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender, Steven
P. Russett, Assistant Public Defender, Saint Paul, Minnesota,
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
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
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.
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.
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
On October 22, 2014, the district court sentenced Kirby to
161 months in prison for first-degree possession of
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
Id., subd. 2.
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."
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.
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))).
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").
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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,
§ 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 ...