A17-0040

This opinion will be unpublished and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
A16-1553
A17-0040

State of Minnesota,
Respondent,

vs.

Gila Angela Robertson,
Appellant.

Filed September 5, 2017
Affirmed
Reyes, Judge

Chippewa County District Court
File No. 12-CR-14-258

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

David Gilbertson, Chippewa County Attorney, Scott A. Hersey, Special Assistant County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Reyes, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this combined probati on-revocation and postconviction appeal, appellant argues
that the common-law ameliora tion doctrine applies and that her conviction should be
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reduced from fifth-degree felony controlled-substance possession to a gross misdemeanor
in accordance with the 2016 Drug Sentencing Reform Act (DSRA). We affirm.
FACTS
After a traffic stop in April 2014, during which appellant Gila Angela Robertson
was a passenger in the vehicle, respondent State of Minnesota charged appellant with fifth-
degree felony controlled-substance possession, misdemeanor possession of an open bottle
in a motor vehicle, and possession of drug paraphernalia. Appellant entered an Alford plea
and pleaded guilty to the fifth-degree felony possession charge. In exchange for appellant’s
plea, the parties agreed that appellant would receive a stay of adjudication, and the state
would dismiss the remaining charges. On No vember 20, 2014, the district court stayed
adjudication and placed appellant on probation. Appellant did not file a direct appeal.
Appellant subsequently committed multiple violations of her pr obation. At the
probation-violation hearing in July 2016, the district court determined that appellant had
violated the conditions of her probation and ad judicated appellant guilty of fifth-degree
possession of a controlled substa nce. The district court executed appellant’s sentence of
one year and one day in prison.
Prior to execution of appellant’s sentence, the legislature passed, and the governor
signed, the DSRA. See 2016 Minn. Laws ch. 160, §§ 1-22, at 576-92. If applicable, the
DSRA would reduce appellant’s crime from fifth-degree felony drug possession to a gross
misdemeanor. Compare 2016 Minn. Laws ch. 160, § 7, at 584, with Minn. Stat. § 152.025,
subd. 2(a)(1) (2014).
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In September 2016, appellant filed a dire ct appeal from the probation-revocation
order. One month later, appellant filed a mo tion to stay her appeal for postconviction
proceedings, which this court granted. Appe llant then filed a petition for postconviction
relief with the district court, arguing that the DSRA applies to her case and that her
conviction offense should be reduced. The district court denied appellant’s petition.
After the postconviction proceedings, appella nt filed a motion in this court to
reinstate her appeal of the probation-re vocation order, a notice of appeal from the
postconviction court’s decision, and a motion to consolidate the two appeals. This court
granted appellant’s motions, and the consolidated appeals follow.
D E C I S I O N
While appellant does not challenge the district court’s probation-revocation
decision, appellant argues that she is entitled to a reduction in her conviction offense in
accordance with the DSRA. We disagree.
This court reviews a district court’s probation-revocation and postconviction
decisions for an abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)
(probation revocation); Lussier v. State , 821 N.W.2d 581, 588 (Minn. 2012) (quotation
omitted) (postconviction). We review issues of statutory interpretation de novo. Rushton
v. State, 889 N.W.2d 561, 563 (Minn. 2017).
In State v. Coolidge, the Minnesota Supreme Court stated that, under the common-
law amelioration doctrine, “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 (Minn. 1979). The supreme court recently stated that, under the amelioration doctrine,
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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.
State v. Kirby , ___ N.W.2d ___, ___, 2017 WL 31610 79, at *4 (Minn. July 26, 2017)
(applying Edstrom v. State, 326 N.W.2d 10 (Minn. 1982), and Coolidge, 282 N.W.2d 511).
The supreme court concluded that “the amelio ration doctrine requires the resentencing of
a person whose conviction was not yet final on th e effective date of section 18(b) of the
[DSRA].” Id. at ___, 2017 WL 3161079, at *1. The supreme court also concluded that
the legislature clearly intended to abrogate the amelioration doctrine where the applicable
DSRA provisions became “effective August 1, 2016, and appl[y] to crimes committed on
or after that date.” State v. Otto, ___ N.W.2d ___, ___, 2017 WL 3161109, at *2 (Minn.
July 26, 2017) (quotation omitted).
Appellant asserts that the DSRA applie s to reduce her conviction offense because
no final judgment had been entered on her case when the DSRA took effect. We are not
persuaded.
A felony stay of adjudication is treated as a sentence for appeal purposes, and a
defendant may appeal a stay of adjudication as of right. See State v. Allinder, 746 N.W.2d
923, 924-26 (Minn. App. 2008) (citing Minn. R. Crim. P. 28.02, subd. 2(3)). As such, a
direct appeal must be filed within 90 days of the imposition of the stay. Minn. R. Crim. P.
28.05, subd. 1 (providing time for taking sentencing appeal). A case is pending until the
5
time that direct appeals are exhausted or the ti me for filing a direct appeal has elapsed.
State v. Losh, 721 N.W.2d 886, 893-94 (Minn. 2006).
Here, the district court stayed adjudicatio n in November 2014. Appellant’s case
became final 90 days after the district court entered the stay of adjudication, and appellant
did not appeal within this period. Accordingly, appellant’s case was not pending on direct
review when the DSRA went into effect, and the amelioration doctrine does not apply.
Appellant further asserts that the language of the DSRA does not expressly prohibit
“retroactive” application of its provisions. We disagree.
As the Minnesota Supreme Court recently highlighted, a change in a law is
retroactive when it applies to cas es that have become final. Kirby, ___ N.W.2d at ___,
2017 WL 3161079, at *2. “No law shall be construed to be retroactive unless clearly and
manifestly so intended by the legisl ature.” Minn. Stat. § 645.21 (2016); see also State v.
Traczyk, 421 N.W.2d 299, 300 (Minn. 1988), as amended (Minn. Mar. 4, 1988). “When a
section or part of 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). We review the retroactivity of a statute de novo. State v. Basal, 763 N.W.2d 328,
335 (Minn. App. 2009).
Here, section 7 of the DSRA states that the amendments to fifth-degree controlled-
substance crimes became “effective August 1, 2016, and appl[y] to crimes committed on
or after that date.” 2016 Minn. Laws ch. 160, § 7, at 585. The state asserts that the DSRA
is unambiguous, and we agree. The legislature clearly established its intent to make this
provision of the DSRA prospectively applicable to crimes committed on or after August 1,
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2016. Accordingly, section 7 of the DSRA does not apply to reduce appellant’s conviction
offense when appellant committed her crime in April 2014.
Finally, appellant is not entitled to rese ntencing under section 18 of the DSRA.
First, appellant’s case was final on the effective date of section 18. See Kirby, ___ N.W.2d
at ___, 2017 WL 3161079, at *2. Second, th e guideline sentence for fifth-degree felony
possession did not change under the DSRA. Compare Minn. Sent. Guidelines 4.C (2016),
with Minn. Sent. Guidelines 4.A (2014).
Affirmed.