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Johnson v. State

Court of Appeals of Minnesota

January 2, 2018

Mark Jerome Johnson, petitioner, Appellant,
v.
State of Minnesota, Respondent

         Ramsey 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)

          Lori 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.

         SYLLABUS

         The new 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.

          OPINION

          TOUSSAINT, JUDGE [*]

         Appellant 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 arguments.[1]

         FACTS

         In 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.

         On June 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.

         On 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.

         These ...


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