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Sentences Reduced Under Guideline Changes

Wednesday, August 2, 2017  
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Article from Minnesota Lawyer

Amelioration is defined in Black’s as betterment or improvement. That’s also how the Oxford English Dictionary (online) defines it.

Black’s defines retroactive as retrospective, which means looking backward, and Merriam-Webster (online) defines it as something made effective as of a date prior to enactment, promulgation or imposition.

The difference in those two terms was explored by the Supreme Court in State v. Kirby, decided July 26, accompanied by a companion case, State v. Otto. It adopted the common law “amelioration doctrine,” which it has never embraced in that term, and ordered the resentencing of two persons under the 2016 Drug Sentencing Reform Act’s changes to the sentencing guidelines, reducing their terms in both cases.

The court was divided 4-3, with Justice G. Barry Anderson dissenting, joined by Chief Justice Lorie Gildea and Justice David Stras. Justice David Lillehaug wrote the opinion.

“At the outset, it is important to understand what this case is not about: retroactivity,” Lillehaug wrote (emphasis in original). “Instead, this case is about amelioration.”

The difference is the status of the criminal conviction: The amelioration doctrine, a creature of common law, applies to cases that are not yet final when the change in law takes effect, Lillehaug continued. Retroactivity means a change in the law is applied to cases in which final judgment has already been entered, he said.

First-degree meth possession

Appellant Michael Kirby was arrested on Nov. 22, 2013, for first-degree possession of methamphetamine and sentenced on Oct. 22, 2014, to 161 months in prison. At the time, the presumptive sentencing range was 138 to 192 months.

While his case was on appeal, section 18 of the Drug Sentencing Reform Act reduced the presumptive sentencing range under the guidelines to 110 to 153 months. The law was signed on May 22, 2016, and took effect the following day. On July 18, 2016, the Court of Appeals affirmed appellant’s convictions. The timing of the appeal and the effective date of the law meant the Court of Appeals could not address the DSRA changes, the Supreme Court noted.

Without using the term “amelioration doctrine,” the court has analyzed and followed it in four prior cases, Lillehaug wrote. The most pertinent are State v. Coolidge, 1979, and Edstrom v. State, a 1982 Supreme Court decision, he said.

In Coolidge, the Legislature repealed and replaced the law under which the defendant was convicted, reducing the maximum sentence from 10 years to one year. The statute was silent on amelioration but the court reduced the sentence according to the new law.

In Edstrom, a different outcome was the result of the Legislature’s specific abrogation of the amelioration doctrine. The law in effect at that time stated, “crimes committed prior to the effective date of this act are not affected by its provisions.” Edstrom’s aggravated rape occurred in March 1975 and a statute lowering the sentence for his crime from 30 years to 20 years took effect in August 1975.

“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,” the court said.

Legislative intent

The rule enunciated by the court presumes that an amendment mitigating punishment applies to non-final cases. The parties agreed that final judgment had not been entered as of the date of the amended guidelines, but disputed that the Legislature did not clearly abrogate the amelioration doctrine or that the amendment mitigated punishment. The state argued that that the presumption was overcome by contrary legislative intent, which the defendant disputed.

In Coolidge, the statute stated that it was “effective the day after final enactment.” That is nearly identical to sec. 18 of the DSRA, which stated that it was effective the day following final enactment. Thus the since the Legislature enacted language in the new law mirroring Coolidge, the court assumed that the Legislature intended the DSRA to carry the same meaning as the law in Coolidge.

Moreover, the Legislature demonstrated in Edstrom that it knew how to expressly abrogate the amelioration doctrine, and it did not do so in the DSRA sec. 18, although other parts of the law expressly applied only to crimes committed on or after the effective date. “The absence of such language from DSRA § 18 is telling; it signals that the Legislature did not intend to abrogate the amelioration doctrine,” Lillehaug wrote.

The court rejected the state’s argument that the Legislature did, in fact, abrogate the amelioration doctrine. The state argued that Coolidge-Edstrom is limited to legislation that reduces the statutory minimum sentence and does not apply to presumptive guideline sentences but the court said that the operative language from Edstrom is that the amelioration doctrine applies to a statute mitigating punishment, which includes the sentencing grid. Similarly, the court rejected the argument that the in the effective date of the DSRA, the Legislature was instructing the Minnesota Sentencing Guidelines Commission, rather than itself amended a statute. “We do not consider this a meaningful distinction,” Lillehaug said.

It refused to consider the DSRA’s legislative history, which arguably included a statement of intent to abrogate the amelioration doctrine since the statute is unambiguous. The court also said it did not find a clear intent to do away with amelioration. It also did not find such intent within the guidelines themselves. “We have never ruled — and decline to rule today — that the amelioration doctrine may be abrogated by Commission statements not ratified by the Legislature,” Lillehaug wrote.

Furthermore, the Legislature’s repeal of retroactivity in the guidelines does not demonstrate intent to abrogate the amelioration doctrine, the court continued.

Mitigation of punishment

The court rejected the state and the dissent’s argument that the DSRA increased presumptive sentences from those proposed by the guidelines commission, rather than mitigate them. But the proper comparison is whether the Legislature reduced the sentences from those in the grid under which the appellant was sentenced, the court said.

Reduction in some sentences was the purpose of the changes to the guidelines. The DSRA as a whole generally mitigates punishment, the court continued. “The Legislature contemplated that reduced sentences for the majority of drug offender would reduce prison populations and costs, producing savings for programs that help drug addicts and low-level offenders,” the court said.

“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,” the court said. “Our judicial role is to interpret and apply the sentencing law, including the sentencing grids established and amended by the Legislature. Had the Legislature given us a clear signal that DSRA § 18(b) did not apply to defendants with non-final convictions, we would have followed that signal. Because it did not, we apply our long-established rule of law.”


The dissent found plain and unambiguous language in Minn. Sent. Guidelines 2 creating a presumption that the amelioration doctrine does not apply to a change in the presumptive sentences listed in a guidelines grid. Section 2 states that the presumptive sentence is determined by the sentencing guidelines in effect on the date of the offense. The majority found that the Section 2 language was a restatement of the constitutional ban on ex post facto legislation, but the dissent differed.

“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 (cite omitted), the Guidelines are not. Because our court harmonizes the Guidelines with a statute unless an applicable Guidelines provision is contrary to statute, here we must read the Guidelines and the DSRA together because they are not in conflict. Accordingly, under the plain language of Minn. Sent. Guidelines 2, the presumptive sentence for Kirby should be determined by the Sentencing Guidelines grid in effect when he committed his offense in 2013,” the dissent concluded.

State v. Otto – companion case

In a companion case to State v. Kirby, July 26, 2017, the Supreme Court also ordered resentencing of Travis Richard Otto for first-degree possession of methamphetamine, under the analysis used in Kirby.

The same justices dissented on Otto’s resentencing.

However, the court same together in determining that where the controlled substance weight threshold was increased by section 3 of the Drug Sentencing Reform Act before the defendant’s conviction was final, the defendant is not entitled to have his conviction reversed. It said that the plain language of the Drug Sentencing Reform Act secs. 3 and 4 forbids application of the increased weight threshold to offenses committed prior to August 1, 2016.

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