State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0184

State of Minnesota,
Respondent,

vs.

Gerry Thomas Cardinal,
Appellant.

Filed June 12, 2017
Affirmed
Ross, Judge

Beltrami County District Court
File No. 04-CR-15-959

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Annie P. Claesson-Huseby, Beltrami County Attorney, David P. Frank, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Ross, Judge; and
Kalitowski, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury found Gerry Cardinal guilty of selling methamphetamine. Cardinal appeals
from his conviction, arguing that the prosecutor unfairly aligned himself with the jury. He
also contends that he must be resentenced under the new provisions of the Minnesota Drug
Sentencing Reform Act (DSRA) because that act is now effective and his conviction is not
yet final. Because the prosecutor’s allegedly improper comments acceptably prepared the
jury to hear evidence about the presumably unfamiliar world of drug dealing, we reject
Cardinal’s prosecutorial -misconduct assertion. And because the DSRA applies only to
crimes committed on or after the DSRA’s effective date and Cardinal committed his crime
before that date, Cardinal’s sentencing challenge also fails. We therefore affirm.
FACTS
The Paul Bunyan Drug Task Force is a cooperative of law enforcement officers
operating in the north -central part of the state. The state charged Gerry Cardinal with a
second-degree controlled substance crime in violation of Minnesota Statutes section
152.022, subdivision 1(1) (2014), for sellin g methamphetamine to a task force informant
in February 2015.
According to the state, task force agent Rob ert Fraik worked with the informant,
D.K., to arrange for D.K. to purchase two “8 -balls” of methamphetamine from Cardinal.
D.K. picked up Cardinal at his home. Cardinal handed D.K. two baggies of what appeared
to be methamphetamine. D.K. paid Cardinal $360 in cash, and they agreed that D.K. would
owe $840. D.K. dropped Cardinal off and immediately called Agent Fraik to deliver the
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purchased substance and to provide his debriefing statement. A forensic scientist at the
Bureau of Criminal Apprehension determined that the substance was 6.932 grams of
methamphetamine.
At Cardinal’s October 2016 jury trial, the prosecutor made the following comments,
which have become a subject of this appeal, during his opening statement:
May it please the Court, Counsel, Mr. Cardinal, ladies
and gentlemen of the jury, this case is about Bemidji. It’s about
our community. We live here. Many of us have lived here our
whole lives. Many of us have retired. We know Bemidji pretty
well. We work here; we go to church here; we shop here. This
is where we belong; this is where -- the area that we know.
This case is about Bemidji, but it’s not about the
Bemidji that you might be fa miliar with. This is a case about
drug use, drug sales, here in the Bemidji community. It’s a
world that exists in the shadows. It’s a world that exists in
secret. It’s a world that exists behind closed doors. Today and
tomorrow, that world is going to be opened up to you through
the testimony of a number of witnesses.
. . . .
Agent Billings is going to explain to you that it’s necessary to
use addicts and other dealers in the law enforcement
investigation because this is a world, this is a part of our
community, that exists in shadows, in secret, behind doors.
. . . .
You’re going to learn that Agent Fraik is an experienced drug
enforcement agent. He’s going to tell you how drug deals take
place. He’s going to tell you they’re not like commercial
transactions.
We go to Lueken’s, we go to Wal -Mart, we go to
Menards, and we know what we’re getting. We get a receipt.
We talk to customers who explain the products. You’re going
to learn that in drug sales in the shadows and the secret and
behind closed doors, those words aren’t used. They’re not
heard in transactions. But make no mistake about [it]; Agent
Fraik will explain to you that the sale that took place b y Gerry
Cardinal to [D.K.] and the discussions between [D.K.] and
[Cardinal] were about drugs. He’s going to explain how he, as
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an experienced task force agent, knew what these individuals
were talking about.

The prosecutor presented testimony from three task force agents, D.K., and the BCA
forensic scientist. The agents informed the jury of the task force’s purpose, described its
members, explained the role of informants, and detailed the elements of a controlled
purchase. Agent Fraik and D.K. described Cardinal’s sale to D.K. , and the prosecutor
introduced D.K.’s communications with Cardinal.
Cardinal did not testify and did not call any witnesses.
The prosecutor made the following comments , which are also a subject of this
appeal, during his closing statement:
As I told you in my opening comments, this case is
about an aspect of this community that few of us understand or
know. It is about the use and sale, trafficking drugs;
specifically, trafficking, sale, of methamphetamine. And as I
stated in my opening comments, meth is sold in secret, sold in
the shadows, and it’s s old and used behind closed doors. The
people that understand this world are the addicts who use the
drugs and the dealers who exploit and profit from the misery
and addiction of addicts.
It’s also understand -- it’s also understood by a law
enforcement community who’s specially trained and dedicated
to, every day, going out and trying to stop drug trafficking. It’s
understood by the members of the Paul Bunyan Drug Task
Force, our public servants in this community who’ve
undertaken the responsibility to try to stop drug trafficking and
enforce the laws here in the state of Minnesota.
. . . .
Rob Billings used a phrase I’d like you to consider when
you consider the evidence in this case: We have to work with
informants, the people that we deal with, the people that we
investigate, and the people that we wind up prosecuting, in
order to achieve the greater good. We have to work with
informants to not only hold them accountable but the dealers
that they work with accountable as well. As unsavory as that
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aspect is , it’s necessary in order to uphold the law in our
community.
. . . .
Through the testimony and the evidence presented
today, you were exposed to an area of this community that very
few people see, very few law -abiding people see. We shed
some sunlight on the secret world. We shed some sunlight on
the shadows of methamphetamine trafficking. It’s an unsavory
business, I grant you that. But it’s a business that’s necessary
to enforce the laws in this community and to stop, at least to a
certain extent, methamphetamine trafficking.

The jury found Cardinal guilty, and the district court sentenced him to 57 months in
prison.
Cardinal filed a direct appeal, which we stayed on his request to file a postconviction
petition. Cardinal petitione d the district court fo r a reduced sentence under the DSRA,
which had just been enacted. The district court denied his petition, and Cardinal asked that
his appeal be reinstated. We now address the merits of his appeal.
D E C I S I O N
Cardinal challenges his conviction, alleging that prosecutorial misconduct during
opening and closing statements deprived him of a fair trial. Alternatively, he challenges his
sentence under the DSRA. For the following reasons, we affirm his conviction and
sentence.
I
Cardinal accuses the prosecutor of improperly aligning himself with the jury during
his opening and closing arguments. Cardinal did not object during trial, so we review his
accusation under the modified plain-error standard. See State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006). Under this standard, Cardinal can prevail only if he first establishes that
6
the prosecutor committed an error and that the error was plain. See id. An error is plain if
the prosecutor’s conduct violates caselaw, a rule, or a s tandard of conduct. Id. If Cardinal
demonstrates plain error, the state can avoid reversal if it shows that the error did not affect
Cardinal’s substantial rights. See id. Even if the state fails to make this showing, we will
reverse only if a new trial is necessary to ensure fairness and the integrit y of the judicial
proceedings. See State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
Cardinal argues that the prosecutor’s repeated use of the terms “our community,”
“we,” and “us” during his opening and closi ng statements improperly aligned the jurors
with the prosecution. We review for misconduct as a whole without focusing on particular
phrases or remarks that m ight be taken out of con text or undu ly emphasized . State v.
Jackson, 714 N.W.2d 681, 694 (Minn. 2006).
Cardinal argues that the prosecutor erred under State v. Mayhorn, 720 N.W.2d 776
(Minn. 2006). In Mayhorn, the supreme court emphasized that a prosecutor may not align
herself with a jury by using “we” and “us” so as to appeal to jurors’ passions. Id. at 790.
But Mayhorn does not declare that using those words always establishes misconduct. The
court said, “[T]o use ‘we’ and ‘us’ is inappropriate and may be an effort to appeal to the
jury’s passions.” Id. (emphasis added). The supreme court later sug gested that a
prosecutor’s use of “we” in closing argument should be reviewed on a case -by-case basis
to determine whether misconduct occurred. Nunn v. State , 753 N.W.2d 657, 663 (Minn.
2008) (finding prosecutor’s use of “we” could “reasonably be interpreted . . . to refer to
everybody who was in court when the evidence was presented”).
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Cardinal contends that by using the terms here, the prosecutor improperly depicted
two worlds—one in which the jury, prosecut or, and law enforcement live, and a shadow -
world in which Cardinal, drug dealers, and addicts live. The supreme court has noted that
when “the prosecutor invited the jurors to view the entire occurrence as ‘involving three
young black males in the hood in North Minneapolis,’ a world wholly outside their own,”
the remark “ask[ed] the jury to apply racial and socio-economic considerations that would
deny a defendant a fair trial.” State v. Wren, 738 N.W.2d 378, 392 (Minn. 2007) (quoting
State v. Ray , 659 N.W.2d 736, 747 (Minn. 2003)). A prosecutor may not imply that a
defendant should be convicted based on his racial or socio-economic background. State v.
Jackson, 773 N.W.2d 111, 124 (Minn. 2009). But when a prosecutor’s comments that the
defendant was not from the same world as the jurors are designed merely to “prepare the
jury for evidence of an unfamiliar world involving drugs,” the comments are not
misconduct. Wren, 738 N.W.2d at 392 (quoting State v. Robinson, 604 N.W.2d 355, 363
(Minn. 2000)); see also Jackson, 714 N.W.2d at 695 (allowing prosecutor’s references to
“gang world” where designed to introduce jurors to unfamiliar behaviors and customs of
gang culture).
We think Cardinal’s narrow reading of the prosecutor ’s comments ignores their
ambiguity. Their context within the entire opening and closing statements suggests that the
prosecutor was attempting to establish that Bemidji has aspects to its community that most
of its citizens, including the jurors, are not familiar with (“This case is about Bemidji, but
it’s not about the Bemidji you might be familiar with .” “[T]his case is about an aspect of
this community that few of us understand or know.”). The evidence included drug-dealing
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communication between D.K. and Cardinal involving code phrases and vague terminology
that persons outside of the drug trade would not immediately understand (saying, “in drug
sales in the shadows and the secret and behind closed doors, those words aren’t used”). The
prosecutor did not appear to be establishing a we-versus-they framework, nor did he imply
that Cardinal was guilty merely because he associated with the illegal-drug community. He
never explicitly placed Cardinal in the “shadow world” of drug sales or stated that Cardinal
is not a part of the Bemidji communi ty. We observe that Cardinal’s attorney referred to
Bemidji as “our community” in her opening statement as well. We see no misconduct and
need not consider the other plain-error elements.
II
Cardinal argues that the district court erred by denying his post conviction petition
seeking resentencing under the DSRA. We review the decision to deny postconviction
relief for an abuse of discretion , and in doing so , we address questions of law de novo .
Lussier v. State, 853 N.W.2d 149, 153 (Minn. 2014).
Cardinal argues that the DSRA should apply because his conviction was not final
when the law became effective on August 1, 2016. A statute’s retroactivity is a matter of
statutory interpretation, which we review de novo. State v. Basal , 763 N.W.2d 328, 335
(Minn. App. 2009). Interpreting the sentencing guidelines is also subject to de novo review
and the rules of statutory construction. State v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012).
Cardinal seeks the benefit of the DSRA’s milder sentencing provisions despite the
timing of his crime, well over a year before the law became effective. As a general rule,
“[n]o law shall be construed to be retroactive unless clearly and manifestly so intended by
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the legislature.” Minn. Stat. § 645.21 (2016). When a law is amended, “the new provisions
shall be construed as effective only from the date when the amendment became effective.”
Minn. Stat. § 645.31, subd. 1 (2016). And “repeal of any law shall not affect any . . . penalty
incurred . . . under or by virtue of the law repealed.” Minn. Stat. § 645.35 (2016). So for a
statute to be applied retroactively, the legislature must provide clear evidence for it to be
applied that way, such as using the word “retroactive.” State v. Traczyk, 421 N.W.2d 299,
300 (Minn. 1988).
Cardinal argues that he is not seeking retroactive application, but rather application
of the amelioration doctrine. Cardinal’s argument centers on State v. Coolidge , which
establishes the amelioration doctrine as an exception to the general retroactivity rule: “[A]
statute mitigating punishment is applied to acts committed before its effective date, as long
as no final judgment has been reached.” 282 N.W.2d 511, 514 –15 (Minn. 1979). A
conviction becomes final when any direct appeal is exhausted or the time for filing a direct
appeal has expired. See State v. Losh, 721 N.W.2d 886, 893–94 (Minn. 2006).
Cardinal is correct that t he DSRA essentially mitigates punishment and that t he
amelioration doctrine under Coolidge seems suited for this circumstance. But the supreme
court has explained that Coolidge applies only “absent a contrary statement of intent by the
legislature.” Edstrom v. State, 326 N.W.2d 10, 10 (Minn. 1982). The Edstrom court refused
to apply a statute e nacted after Edstrom’s crime even though it would have reduced his
sentence because the legislature “clearly indicated its intent” that the statute would “have
no effect on crimes committed before the e ffective date of the act. ” Id. The conduct
underlying Edstrom’s conviction occurred in March 1975, and the effective date of the act
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in question was August 1, 1975. Id. The new statute provided, “Except for section 8 of this
act, crimes committed prior to the effective date of this act are not affected by its
provisions.” 1975 Minn. Laws ch. 374, § 12, at 1251.
We have since relied on Coolidge and Edstrom in two relevant published opinions.
In State v. McDonnell, we determined that Coolidge did not apply because the legislature
clearly indicated its intent that a statutory amendment should not apply to crimes
committed before the amendment’s effective date by providing that the amendment “is
effective August 1, 2003, and applies to violations committed on or after that date.” 686
N.W.2d 841, 846 (Minn. App. 2004) (quoting 2003 Minn. Laws 1st Spec. Sess. ch. 2, art.
9, § 1, at 1446 ), review denied (Minn. Nov. 16, 2004). In State v. Basal , we again
determined that Coolidge did not apply when the legislature expressly provided that the
relevant amendment “would become effective January 1, 2008.” 763 N.W.2d at 336 (citing
2007 Minn. Laws ch. 147, art. 2, § 64, at 1901). We concluded that “[b]ecause the
legislature provided for a specific effective date for the 2007 amendment, the legislature
did not intend for the amendment to apply to conduct occurring before the effective date.”
Id.
The DSRA contains an effective -date provision that is substantially similar to the
provision in McDonnell. It state s that the revised section 152.022, subdivision 1, “is
effective August 1, 2016, and applies to crimes committed on or after that date.” 2016
Minn. Laws ch. 160, § 4 , at 581 . Cardinal argues that this statutory language does not
satisfy Edstrom because it “does not contain an express statement prohibiting application
of its provision[s] to non -final cases .” But we specifically rejected this formulation in
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McDonnell. The statute in McDonnell fit the Edstrom exception because its inclusive
language applying t o crimes committed “on or after” an effective date is equivalent to
exclusive language applying to crimes committed before an effective date. See McDonnell,
686 N.W.2d at 846. The DSRA contains the same language.
Cardinal argues alternatively that he is entitled to reduced sentencing under section
18 of the DSRA, because that section became “effective the day following final
enactment.” He argues that this language triggers Coolidge and “demonstrates that the
[l]egislature intended that the modifications to the sentencing guidelines applied to pending
cases.” But Cardinal misunderstands section 18’s purpose. Section 18 rejects certain
modifications proposed in the sentencing guideline s commission’s “January 15, 2016”
report, then instructs the commission how to modify certain portions of that report. 2016
Minn. Laws. ch. 160, § 18(a), (b), at 590 –91. Section 18’s becoming effective “the day
following final enactment,” id. at 591, did not bring those substantive modifications into
effect but merely enabled the commission to incorporate them into its reported sentencing
recommendations before the remainder of the DSRA became effective on August 1.
Cardinal misreads section 18 as a substantive provision. And his misreading leads to an
absurd result. Under his reading, section 18’s modifications to the sentencing guidelines
would predate the amendments to the corresponding criminal statutes. The legislature more
reasonably intended for the rev ised criminal statutes and their corresponding guidelines
revisions to become effective simultaneously. The commission effectuated this intent by
plainly providing on the modified guidelines’ cover page, “The Sentencing Guidelines are
effective August 1, 2 016, and determine the presumptive sentence for felony offenses
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committed on or after the effective date .” See Minn. Sent. Guidelines (2016); see also
Minn. Sent. Guidelines 2 (2016) (“The presumptive sentence for any offender convicted of
a felony committed on or after May 1, 1980, is determined by the Sentencing Guidelines
in effect on the date of the conviction offense . . . .”); Minn. Sent. Guidelines 3.G.1 (2016)
(“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.”).
The supreme court is now deciding whether the D SRA applies to non -final
convictions in two cases: State v. Otto , A15 -1454 (Minn. App. July 18, 2016) , review
granted (Minn. Sept. 28, 2016), and State v. Kirby , No. A15 -0117 (Minn. App. July 18,
2016), review granted (Minn. Sept. 28, 2016). In the meantime, we will follow our
precedent. See State v. M.L.A. , 785 N.W.2d 763, 767 (Minn. App. 2010), review denied
(Minn. Sept. 21, 2010). Following that precedent, we conclude that the DSRA’s language
establishing a clear effective date of August 1, 2016, meets the Edstrom exception to the
amelioration doctrine. We also conclude that the substantive sentencing modifications
detailed in section 18 of the DSRA took effect on August 1, 2016. The DSRA therefore
does not apply to Cardinal’s offense committed on February 19, 2015.
Affirmed.