Lead Opinion
OPINION
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 re-sentencing 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).
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 Í53 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 justicé 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 sen-ténces for the former class of offenders. See generally Act of May 22, 2016, ch. 160,
[ljocal 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
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,
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. —, —,
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,
In Coolidge, the defendant was convicted of criminal sexual conduct and sentenced to 10 years in prison. Coolidge,
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,
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.
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 ⅛ 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,
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.
Moreover, the Legislature knows how to expressly abrogate the amelioration doctrine, as it did in the act at issue in Edstrom,
To the contrary (and perhaps most importantly), the Legislature expressly stated in other sections of the DSRA that those sections only “appl[y] to crimes committed on or after” the effective date. See Act of May 22, 2016, ch. 160, §§ 1-10, 15-17,
The State nevertheless argues that the Legislature did, indeed, abrogate the amelioration doctrine in DSRA § 18. It lists five reasons in support of its view.
The operative language from Edst-rom is that the amelioration doctrine applies to “a statute mitigating punishment.” Edstrom,
Second, the State argues that the effective date of DSRA § 18 is different from the other sections of the DSRA because the Legislature was merely instructing the Minnesota Sentencing Guidelines Commission, rather than itself amending a statute. We do not consider this a meaningful distinction. After the DSRA was passed by the Legislature and signed by the Governor, all that was left for the Commission to do was the ministerial task of revising the Guidelines as instructed.
Third, the State argues that the DSRA’s legislative history includes a statement of intent to abrogate the amelioration doctrine. But legislative history is relevant only if the statute is ambiguous. State v. McKown,
But even if we were to consider the legislative history cited by the State, we cannot locate any statement showing a clear intent to abrogate the amelioration doctrine. Specifically, the State points to the Judiciary Committee’s closing comments on the DSRA, during which the bill’s author, Senator Ron Latz, stated: “There’s stuff I wanted that’s not in here. I wanted retroactivity—the opportunity for current incarcerated persons to be able to petition, to bring a motion to the district court to get resentenced under any new guidelines that take effect.... I didn’t get [that].” Hearing on S.F. 3481, Sen. Judiciary Comm., 89th Minn. Leg., Apr. 8, 2016 (video) (statement of Sen. Latz), at 4:33:00-4:33:30.
We read this statement to refer to retro-activity, not amelioration. The comment about “current incarcerated persons” seems to refer to offenders finally adjudged and serving their prison sentences. This statement comes nowhere close to showing that the Legislature “clearly indicated its intent” to abrogate the amelioration doctrine. See Edstrom,
Fourth, the' State and the dissent argue that the Guidelines themselves—specifically Guidelines 3.G and the introduction to Guidelines 2—constitute a statement of intent by the Legislature to abrogate the doctrine. But these portions of the Guidelines—unlike the DSRA amendments to the drug offender sentencing grid—were adopted by the Sentencing Commission, not by the Legislature. Compare Minn. Stat. § 244.09, subd. 5 (2016) (“The Commission shall promulgate Sentencing Guidelines for the district court.”), with id., subd. 11 (stating that the Commission is required to obtain the Legislature’s approval only for modifications which amend the “Sentencing Guidelines grid”). In contrast, the Commission is required to obtain the Legislature’s approval to modify the “Sentencing Guidelines grid, including severity levels and criminal history scores, or
In any evept, neither portion of the Guidelines abrogates the amelioration doctrine. The rules of statutory interpretation and construction apply to the Guidelines. State v. Campbell,
Guidelines 3.G discusses how to apply “Policy Modifications” to the Guidelines:
1. Policy Modifications. Modifications to the Minnesota Sentencing Guidelines and associated commentary apply to offenders whose date of offense is on or after the specified modification effective date.
2. Clarifications of Existing Policy. Modifications to Commentary relating to existing Guidelines policy apply to offenders sentenced on or after the specified effective date.
Minn. Sent. Guidelines 3.G.
Reading the Guidelines as a whole, the phrase “Policy Modifications” plainly refers to modifications to Guidelines 1 through 3, not to Guidelines 4, the sentencing grids. Sentencing “policy” is covered in Guidelines 1 through 3. For example, Comment 2.B.115 to Guidelines 2.B.1 discusses “[a]ll of the policies under section 2.B.1, and corresponding commentary.” Minn. Sent. Guidelines 2.B.1 cmt. 2.B.115. Those policies explain, among other things, how to account for extended-jurisdiction juvenile convictions, multiple sentences based on a single course of conduct, prior felony convictions that resulted in misdemeanor sentences, and stays of imposition. See generally Minn. Sent. Guidelines 2.B.I. Similarly, Guidelines 2.C.3.e mentions the “presumptive sentencing consecutive policy (see section 2.F.1, Presumptive Consecutive Sentences).” Minn. Sent. Guidelines 2.C.3.e. In turn, Guidelines 2.F provides the policy for an offender who is convicted of “multiple current offenses” or has a “prior felony sentence that has not yet expired or been discharged” at the time of sentencing. Minn. Sent. Guidelines 2.F. Further, Guidelines 3, aptly titled “Related Policies,” addresses stayed sentences, calculation of jail credit, certified juveniles, presentence examinations for sex offenders, military veterans, and modifications. See generally Minn. Sent. Guidelines 3. Finally, even when a sentencing grid mentions “policy,” it plainly refers to Guidelines 1 through 3, not the sentencing grid itself. Minn. Sent. Guidelines 4.A n.1 (“See section 2.E, for policies regarding those sentences controlled by law.”).
Throughout the Guidelines, the term “policy” is never used in reference to the sentencing grids. The most reasonable interpretation of Guidelines 3.G, then, is that it applies to Guidelines 1 through 3, not the sentencing grids in Guidelines 4. Thus, Guidelines 3.G does not abrogate the amelioration doctrine as to the presumptive sentences in the grid.
The State and dissent also point to the introduction to Guidelines 2 as a statement of intent to abrogate the amelioration doctrine. This introduction states: “The presumptive sentence ... is determined by the Sentencing Guidelines in effect on the date of the conviction offense.... ” Minn. Sent. Guidelines 2. We do not read this language to abrogate the amelioration doctrine; we read it to ensure that the Guidelines abide by the federal and state Ex Post Facto Clauses. See U.S. Const. art. I, § 10; Minn. Const. art. I, § 11. A
Moreover, nothing in the history of the introduction to Guidelines 2 shows that the Commission intended to abrogate-the amelioration doctrine. The relevant language was added in 2012 as part of the Commission’s Guidelines Revision Project. See Minnesota Sentencing Guidelines Commission, Guidelines Revision Project: Adopted Modifications 16 (Apr. 2012). The purpose of the Project was to make the Guidelines “easier to read, use, and understand.” Id. at 3. The Commission emphasized that its revision “was primarily stylistic ... rather than substantively rewriting the Guidelines.” Id. Certainly, adding an express, ongoing abrogation of the amelioration doctrine would have been substantive. Making such a substantive change does not seem to have been the Commission’s intent during the Revision Project.
Fifth, the State argues that two statutes other than the DSRA, and the legislative history of a third' statute, contain statements of intent by the Legislature to abrogate' the amelioration doctrine generally. We consider each possibility in turn.
The first statute relied upon by the State is . a general savings clause, Minn. Stat. § 645.21 (2016), which states, “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature,” But this statute applies to retroactivity, not the amelioration doctrine. See State v. Morrissey,
The second statute, Minn. Stat. § 645.35 (2016), is another general savings clause. That statute states, in relevant part, “The repeal of any law shall not affect any right accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the law repealed.” Id. In support of its argument that this statute establishes the Legislature’s intent to abrogate the amelioration doctrine, the State cites State v. Smith,
In other words, as we recognized in Smith, section , 645.35 abrogates the “abatement doctrine,” not the amelioration doctrine. The abatement doctrine is a common law presumption that the Legislature’s repeal of a criminal statute requires the State to halt its prosecutions under the repealed statute.
Finally, the State .argues that the Legislature’s enactment and repeal of retroac-tivity provisions in Minn. Stat. § 244.09, subd. 11, reveals a- legislative intent to abrogate the amelioration doctrine. In 1983, the Legislature amended section 244.09, subdivision IT, to state, “Any modification of the guidelines- that- causes a duration change shall be retroactive for all 'inmates serving sentences imposed pursuant to the Minnesota sentencing guidelines if the durational-change reduces the appropriate term of imprisonmént.” Act of June 6, 1983, ch. 274, § 10, 1983 Minn. Laws 1171, 1177. The next year, the Legislature repealed this clause and enacted a new subdivision, 11a, providing a process by which a prisoner could petition for retroactive application of lesser sentencing guidelines. Act of April 26, 1984, ch. 589, §§ 4-5, 1984 Minn. Laws 1235, 1236-37. The Legislature then repealed subdivision 11a in 1997. Act of May 30, 1997, ch. 239, art. 3, § 25,1997 Minn. Laws 2742, 2786.
The State argues that the Legislature’s decision to repeal the retroactivity provision demonstrates the Legislature’s intent to abrogate the amelioration doctrine. This argument fails. The plain language of both the 1983 clause and subdivision 11a applied to retroactivity, not the amelioration doctrine. Moreover, at best, the repeal of the retroactivity provision leaves the.statute neutral as to the amelioration doctrine, meaning that the presumption that the amelioration doctrine applies remains intact.
In sum, the Legislature made no statement that clearly establishes its intent to abrogate the amelioration doctrine with respect to DSRA § 18.
'2.
Finally, we consider whether either DSRA § 18, or the DSRA as a whole, mitigate punishment. This is the other disputed element of the amelioration doctrine.
The State and the dissent argue that DSRA § 18, and the DSRA as a whole, do not mitigate punishment. The dissent points out that DSRA § 18(b) increased the presumptive sentences from those proposed by the Commission, which the Legislature rejected in DSRA § 18(a). See Act of May 22, 2016, ch. 160, § 18,
Moreover, the DSRA as a whole generally mitigates punishment. To be sure, the DSRA created a new crime, “aggravated controlled substance crime in the first degree,” and it added new aggravating factors that could be used by prosecutors to argue for increased sentences for some controlled substance offenses. Act of May 22, 2016, ch. 160, §§ 2-3,
In conclusion, Kirby meets the three requirements of the amelioration doctrine. First, no statement by the Legislature clearly demonstrates an intent to abrogate the doctrine. Second, the DSRA mitigates punishment. Third, Kirby has not had final judgment entered in his ease. Accordingly, Kirby must be resentenced under the DSRA-amended sentencing grid.
The conclusion that we reach today is required by a common-law rule more than 160 years old, as adopted by our own precedent that is almost 40 years old. Sentencing policy is for the Legislature and the Commission to make. See Minn. Stat. § 609.095(a) (2016); Reynolds v. State,
CONCLUSION
For the foregoing reasons, we vacate Kirby’s sentence and remand to the district court for resentencing consistent with this opinion.
Sentence vacated; remanded.
Notes
. Included in the presumptive sentencing range was a 3-month increase for a custody enhancement. See Minn. Sent. Guidelines 2.B.2 (2013).
. The common-law amelioration doctrine is widely recognized. See, e.g., In re Estrada,
. The State raised several of these arguments in a companion case, State v. Otto, No. A15-1454, slip op.,
. Although not precisely analogous, this process mirrors how the Revisor of Statutes incorporates statutory amendments passed by the Legislature. See Minn. Stat. § 3C.08, subd. 4 (2016).
. Available at http://mnsenate.gramcus.com/ MediaPlayer.php?view_id= 1 & clip_id=401.
. This is distinct from the "doctrine of abatement ab initio,” which directs that the "death [of a defendant] pending direct review of a criminal conviction discontinues not only the appeal but also all proceedings in the prosecution from the beginning.” State v. Burrell,
, Neither general savings clause (Minn. Stat. §§ 645.21, 645.35) was mentioned in our line of cases on the amelioration doctrine. Both general savings clauses were enacted in 1941. Our four amelioration cases were decided from 1979 to 1982.
Dissenting Opinion
DISSENT
(dissenting).
I respectfully dissent because the court misapplies the so-called “amelioration doctrine” in its interpretation of section 18 of the Minnesota Drug Sentencing Reform Act (DSRA). Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws 576, 590-91. As a threshold matter, I question whether a legislative act that directs the Minnesota Sentencing Guidelines Commission to increase the presumptive sentences listed in a proposed Guidelines grid even implicates the amelioration doctrine. But even assuming that section 18 implicates the amelioration doctrine, I would conclude that the plain and unambiguous language of Minn. Sent. Guidelines 2 creates a presumption that the amelioration doctrine does not apply to a change in the presumptive sentences listed in a Guidelines grid. Accordingly, I would affirm appellant’s sentence.
I.
In 2013, appellant Michael William Kirby was charged with first-degree possession of a controlled substance, Minn. Stat. § 152.021, subd. 2(a)(1) (2014). Kirby was subsequently convicted of the charged offense, and on October 22, 2014, the district court imposed a 161-month presumptive sentence. Kirby appealed in January 2015.
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Id. Because the proposed grid reduced some of the presumptive sentences, Minn. Stat. § 244.09, subd. 11 (2016) required the Commission to submit the grid to the Legislature.
The Legislature rejected the Commission’s attempt to separate the offenses of first-degree sale and first-degree possession and directed the Commission to “renumber[ ] D9 as D8.” Act of May 22, 2016, ch. 160, § 18(b)(1),
CRIMINAL HISTORY SCORE
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Minn. Sent. Guidelines 4.C. As the result
Two months later, on July 18, 2016, the court of appeals affirmed Kirby’s conviction for first-degree possession of a controlled substance. We granted review on the issue of whether Kirby should be re-sentenced under the current Guidelines drug offender grid,' which reflects the instructions in section 18(b) of the DSRA.
Citing State v. Coolidge,
II.
In considering whether the Legislature has clearly indicated an intent that section 18 of the DSRA applies only to crimes committed after the amendment’s effective date, the court focuses on the effective-date provision of section 18, which reads: “This section is effective the day following final enactment.” Because this language does not contain the statement that “crimes committed prior to the effective date of this act are not affected by its provisions,” which was included in the act at issue in Edstrom, the court concludes that the Legislature has not clearly indicated an intent that section 18 of the DSRA applies only to crimes committed after the amendment’s effective date. In my view, the court’s focus is too narrow.
All four cases cited by the court in which we have applied the amelioration doctrine involved a defendant convicted of an offense that predated the Minnesota Sentencing Guidelines. See Edstrom v. State,
Unlike the acts at issue in Coolidge and Edstrom, which amended the statutory maximum listed in a criminal statute, section 18(b) of the DSRA directs the Minnesota Sentencing Guidelines Commission to perform certain tasks. See Act of May 22, 2016, ch. 160, § 18(b),
Section 2 of the Minnesota Sentencing Guidelines states that “[t]he presumptive sentence ... is determined by the Sentencing Guidelines in effect on the date of the conviction offense....”
Thus, although section 18 of the DSRA is silent on whether the Minnesota Sentencing Guidelines apply to crimes committed on or after its effective date, Act of May 22, 2016, ch. 160, § 18,
. The shaded boxes indicate a presumptive stayed sentence. Report to the Legislature, supra, at 80.
. In my view, it is unclear whether the amelioration doctrine is implicated by a legislative act that directs the Minnesota Sentencing Guidelines Commission to increase the presumptive sentences listed in a proposed Guidelines grid. Describing such an act as a manifestation of a belief that the prior punishment was too severe would appear to be highly questionable. Admittedly, the net effect of the grid changes was the lowering of some of the numbers in the 2013 grid. Compare Minn. Sent. Guidelines 4.A (2013), with Minn. Sent. Guidelines 4.C (2016), Had section 18 directed the Commission to lower the numbers in the 2013 grid, I would agree that it manifested a legislative belief that the prior punishment was too severe. Section 18, however, directs,the Commission to increase the numbers in its proposed grid. Such a directive simply manifests a legislative belief that the punishments proposed by the Commission were too lenient. In any event, I need mot decide whether the amelioration doctrine is implicated in this case because as discussed below, the Legislature has clearly indicated its intent that section 18 of the DSRA applies only to crimes committed after the amendment's effective date.
. Section 18(b) of the DSRA provides that "[t]he Sentencing Guidelines Commission shall:”
(1) modify the new drug offender grid found on page 80 of the [Commission’s January 15, 2016] report by renumbering D9 as D8 and renumbering D10 as D9;
(2) modify the criminal history grids on page 67 of the report by renumbering D8 as D7 and renumbering D9-D10 as D8-D9; '
(3) modify the presumptive sentences for severity level D7 offenses found in the new drug offender grid found on page 80 of the report as follows:
(1) for zero criminal history points, a presumptive stayed sentence of 48 months;
(2) for one criminal history point, a presumptive stayed sentence of 58 months;
(3) for two criminal history points, a presumptive executed sentence of 68 months and a range of 58 to 81 months;
(4) for three criminal history points, a presumptive executed sentence of 78 months and a range of 67 to 93 months;
(5) for four criminal history points, a presumptive executed sentence of 88 months and a range of 75 to 105 months;
(6) for five criminal history points, a presumptive executed sentence of 98 months and a range of 84 to 117 months; and
(7) for six criminal history points, a presumptive executed sentence of 108 months and a range of 92 to 129 months;
(4) re-rank first-degree possession of a controlled substance under Minnesota Statutes, section 152.021, subdivision 2, paragraph (a), at the renumbered severity level D8;
(5) rank the new offense of aggravated controlled substance crime in the first degree under Minnesota Statutes, section 152,021, subdivision 2b, at the renumbered severity level D9; and
(6) make changes in Appendix 2.2,A, consistent with tliis section.
Act of May 22, 2016, ch. 160, § 18(b),
. In the context- of a new rule of federal constitutional criminal procedure, we have used the term "retroactive” to describe the application of a new rule to defendants whose convictions became final before the new -rule was announced. Danforth v. State,
. This rule is subject to exceptions that are not relevant here.
. After considering the historical development of Minn. Sent. Guidelines 2, the court narrowly interprets Minn. Sent. Guidelines 2 as a mere restatement of the ex-post-facto limitation in the United States and Minnesota Constitutions. The court’s reliance on the underlying history is unwarranted, however, because the text of Minn. Sent. Guidelines 2 is unambiguous. See Campbell,
. The court has sometimes used the phrase “statutory maximum” when applying the rules announced in Blakely v. Washington,
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Anderson.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Anderson.