County District Court File Nos. 62-CR-14-4557, 62-CR-10-1150
Cathryn Middlebrook, Chief Appellate Public Defender,
Veronica M. Surges, Assistant Public Defender, St. Paul,
Minnesota (for appellant)
Swanson, Attorney General, St. Paul, Minnesota; and John J.
Choi, Ramsey County Attorney, Adam E. Petras, Assistant
County Attorney, St. Paul, Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Worke,
Judge; and Toussaint, Judge.
rules of procedure announced in State v. Trahan, 886
N.W.2d 216 (Minn. 2016), and State v. Thompson, 886
N.W.2d 224 (Minn. 2016), do not apply retroactively on
collateral review of a final conviction.
TOUSSAINT, JUDGE [*]
challenges the district court's denial of his motion for
postconviction relief and argues the that district court
erred by determining that State v. Trahan and
State v. Thompson announced a new procedural rule
without retroactive effect on appellant's final
convictions. We conclude that Trahan and
Thompson announced a new procedural rule of law
without retroactive effect, and we affirm the district
court's denial of appellant's petition for
postconviction relief. Because we conclude Trahan
and Thompson announced a new procedural rule, we
will not consider respondent's waiver and forfeiture
2009, law enforcement stopped appellant Mark Jerome
Johnson's vehicle for having expired tabs. During the
stop, appellant showed indicia of alcohol impairment.
Appellant then failed field sobriety tests and refused a
preliminary breath test. The officer placed appellant under
arrest. The arresting officer read appellant Minnesota's
Implied Consent Advisory, to which appellant was
nonresponsive. Appellant refused to submit to blood or urine
testing. Appellant was charged with one count of first-degree
driving while impaired, refusal to submit to chemical test
(test refusal), under Minn. Stat. § 169A.20, subd. 2(2)
(2008). Appellant was not offered a breath test. At the time
of the incident, appellant had three or more qualified prior
impaired-driving incidents within a ten-year period.
Appellant pleaded guilty with the assistance of counsel. As
part of the plea colloquy, appellant waived his rights to
contest probable cause for the charge and the admissibility
of the state's evidence. On June 29, 2010, the district
court sentenced appellant to a stayed 48-month prison term.
The district court then placed appellant on supervised
probation for up to seven years.
20, 2014, while still on supervised probation, appellant was
pulled over for improper turn-signal use and erratic driving.
Officers questioned appellant, and he admitted he had been
drinking alcohol. Officers transported appellant to jail, and
a preliminary breath test showed appellant had a 0.109 blood
alcohol level. Officers read appellant Minnesota's
Implied Consent Advisory and provided a telephone for him to
contact an attorney. Appellant refused to take a blood or
urine test, and appellant was charged with one count of test
refusal. Appellant was not offered a breath test. During the
plea colloquy, appellant was made aware of "some cases
that were on appeal to the Minnesota Supreme Court."
Nonetheless, after conferring with counsel, appellant pleaded
guilty to test refusal. Appellant's failure to abstain
from alcohol constituted a violation of his probation for his
2010 conviction for test refusal, so the district court
executed his 48-month prison sentence.
April 23, 2015, pursuant to the plea agreement, the district
court convicted appellant of test refusal and sentenced him
to 51 months in prison with five years of conditional release
following confinement. On December 7, 2016, appellant filed
two petitions for postconviction relief, arguing that recent
cases State v. Trahan and State v. Thompson
created a substantive rule with retroactive effect, and that
his convictions should be vacated. Respondent argued that
those cases created only a procedural rule with no
retroactive effect, and that appellant was not entitled to
relief. On March 29, 2017, the district court denied
appellant's first petition for postconviction relief,
reasoning that the cases created a procedural rule that did
not have a retroactive effect on appellant's 2015
conviction. On April 7, 2017, the district court denied
appellant's second petition for postconviction relief,
similarly deciding that Trahan and Thompson
created only a procedural rule that did not apply
retroactively to appellant's 2010 conviction.