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This opinion will be unpublished and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
A16-1855

State of Minnesota,
Respondent,

vs.

Nicholas John Westlund,
Appellant.

Filed September 5, 2017
Affirmed
Schellhas, Judge

Lyon County District Court
File No. 42-CR-16-569

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

Richard R. Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presidin g Judge; Schellhas, Judge; and Connolly,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant argues that he is entitled to a reduction of his conviction, from second-
degree controlled-substance crime to third-degree controlled-substance crime, because the

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mitigating provisions of the 2016 Drug Sentenci ng Reform Act presumptively apply to
cases that are pending at the time of enactment. We affirm.
FACTS
On June 1, 2016, police executed a sear ch warrant at the apartment of appellant
Nicholas Westlund in the City of Marsha ll and seized approximately 24.9 grams of
methamphetamine and various items of drug paraphernalia, including two glass smoking
pipes, a metal spoon or scoop, several empty small baggies similar to ones used to package
drugs for sale, and a digital scale with residue believed to be methamphetamine. The state
charged Westlund with first-degree controlled-substance crime, in violation of Minn. Stat.
§ 152.021, subd. 1(1) (2014) (s ale of ten or more grams of methamphetamine on one or
more occasions within a 90-day period); se cond-degree controlled-substance crime, in
violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2014) (possession of six grams or more
of methamphetamine); and posse ssion of drug paraphernalia, in violation of Minn. Stat.
§ 152.092 (2014).
On August 8, 2016, based on a plea agreement, Westlu nd pleaded guilty to the
second-degree possession charge in exchange for the state’s agreement to dismiss the other
charges and to recommend a prison sentence of 117 months in prison—the high end of the
guidelines range. The state also agreed not to pursue any charges stemming from another
incident involving Westl und on May 24, 2016. During th e plea colloquy, Westlund
acknowledged that police seized 24.9 grams of methamphetamine from his apartment. The
district court accepted the plea and ordered a sentencing worksheet, which confirmed that
the presumptive guidelines range for this severity-level-eight offense for an offender with

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Westlund’s criminal-history score of five, was an executed sent ence in the range of 84 to
117 months. See Minn. Sent. Guidelines 4.A. (2015) (Sentencing Guid elines Grid). On
August 23, 2016, the district court convict ed Westlund of second-degree possession of a
controlled substance and sentenced him to 117 months in prison.
This appeal follows.
D E C I S I O N
Westlund argues that he is entitled to a reduction of his conviction from second-
degree to third-degree controlled-substance cr ime, based on the mitigating provisions of
the 2016 Drug Sentencing Reform Act (DSR A), which became effe ctive on August 1,
2016, before his conviction b ecame final. He seeks a remand to the district court for
resentencing.
Westlund pleaded guilty to second-degree controlled-substance crime, which made
it a crime to possess more than six grams of methamphetamine. See Minn. Stat. § 152.022,
subd. 2(a)(1) (2014). Westlund claims that under the DSRA , as of August 1, 2017, his
conduct constitutes third-degree possession 1 and carries a presumptive sentence in the
range of 44 to 61 months for an offe nder with his criminal-history score. See Minn. Stat.
§ 152.023, subd. 2(a)(1) (2016) (providing person is guilty of third-degree possession if

1 The DSRA also increased the amount necessary for first-degree sale from 10 to 17 grams
or more. See Minn. Stat. §§ 152.021, subd. 1(1) (2014); 152.021, subd. 1(1) (2016).
Because police seized approxi mately 24.9 grams of metham phetamine from Westlund’s
apartment, along with evidence of sale activity, his conduct might support a first-degree
sale conviction under the 2016 Ac t. But under the terms of th e plea agreement, the state
agreed to dismiss the first-degree-sale charge against Westlund in exchange for his plea of
guilty to the less-serious offense of second-degree possession.

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person unlawfully possesses one or more mixtures of a total weight of ten grams or more
containing a narcotic drug other than heroin); Minn. Sentencing Guidelines 4.C (2016).
The relevant portions of the DSRA became effective on August 1, 2016, for “crimes
committed on or after that date.” 2016 Minn. Laws ch. 160, §§ 3-7. By its plain language,
the DSRA does not apply to We stlund’s offense, which We stlund committed on June 1,
2016. Yet Westlund argues that he is entitled to a reduction because his conviction is not
yet final.
Westlund relies on State v. Coolidge, in which the supreme court held that “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 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.” Id. In Edstrom v. State , 326 N.W.2d 10, 10
(Minn. 1982), the supreme court declined to apply Coolidge and carved out an exception
in cases where the “leg islature has clearly indicated its intent that the [newly enacted]
statutes have no effect on crimes committed before the effective date of the act.”
Since briefing was completed in this case, the Minnesota Supreme Court has
instructed that the common-law principle discussed and applied in Coolidge and Edstrom
should be referred to as the “amelioration doctrine.” State v. Kirby, ___ N.W.2d ___, ___,
No. A15-0117, slip op. at 5−6 (Minn. July 26, 2017); State v. Otto, ___ N.W.2d ___, ___,
No. A15-1454, slip op. at 2 (Minn. July 26, 2017). In Otto, the supreme court rejected a
claim identical to Westlund’s claim, holding that a defendant is not entitled to a reduced
conviction under the DSRA, because the legislature’s intent to “abrogate” the doctrine, by

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its effective-date language, was clear. Id., slip op. at 2 −3. Consistent with Otto, we reject
Westlund’s claim that he is entitled to a reduction in his conviction under the amelioration
doctrine.
Kirby and Otto also addressed an issue not pres ented by Westlund in this case:
whether the amelioration doctrine requires that he be resentenced under the DSRA-
amended sentencing grid. In Kirby and Otto, which involved first-degree possession
convictions, the supreme court held that th e amelioration doctrine required that the
defendants be resentenced under the DSRA-amended sentencing grid. Westlund does not
claim that he is entitled to be resentenced under the DSRA-amende d sentencing grid,
perhaps because application of the new grid to his offense and criminal-history score would
result in the same sentence that was imposed on him under the 2015 sentencing guidelines
grid. The DSRA-amended sentencing grid does not change the sentencing range for
persons convicted of second- degree controlled-substance crime (possession) and a
criminal-history score of five points. Under either the 2015 or the 2016 grid, the sentencing
range for this offense and offender is 84 to 117 months. Under the terms of his plea
agreement, Westlund agreed to a 117-month prison sentence, and that is what he received.
Consistent with Otto and Kirby, we conclude that Wes tlund is not entitled to a
reduction of his conviction of second-degree controlled-substance crime to third-degree
controlled-substance crime under the DSRA, and Westlund is not entitled to resentencing
under the DSRA-amended sentencing grid.
Affirmed.