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This opinion will be unpublished and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
A16-1989

State of Minnesota,
Respondent,

vs.

Dustin Anthony Wittern,
Appellant.

Filed October 23, 2017
Reversed and remanded
Rodenberg, Judge

Washington County District Court
File No. 82-CR-15-2683

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; R odenberg, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Dustin Anthony W ittern challenges his sentence after his conviction of
first-degree controlled substance crime, arguing that the district court should have applied

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the Minnesota Sentencing Guidelines, as am ended by Section 18 of the 2016 Drug
Sentencing Reform Act (DSRA), because his conviction was not final at the time the statute
took effect. Because the amelioration doctrine applies here, we reverse and remand to the
district court for resentencing.
FACTS
Appellant Dustin Anthony Wittern was charged with first-degree controlled
substance crime in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2014). He pleaded
guilty on May 23, 2016. Th e district court followed th e 2015 Minnesota Sentencing
Guidelines for a severity-level nine offense and a criminal history score of five points, and
sentenced appellant to 146 months in pr ison on September 15, 2016. Minn. Sent.
Guidelines 4.A (Supp. 2015).
This appeal followed.
D E C I S I O N
Appellant argues on appeal that the amelioration doctrine requires the 2016 DSRA-
amended sentencing grids to be applied to his conviction, which was not yet final when the
DSRA went into effect. 2016 Minn. La ws ch. 160 §§ 1-18, at 576; 22 at 592.
“[I]nterpretation of the sentencing guidelines [is] subject to de novo review. . . . We apply
the rules of statutory construction to our interpretation of the sentencing guidelines.” State
v. Campbell, 814 N.W.2d 1, 3 (Minn. 2012) (citation omitted).
The Minnesota Sentencing Guidelines prov ide presumptive sentences for criminal
offenders. Minn. Sent. Guidelines (2016 ). The guidelines were amended by the DSRA,
which was signed into law on May 22, 2016. 2016 Minn. Laws ch. 160 § 22 at 592. The

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majority of the act’s provisions became effe ctive on August 1, 2016, while Section 18
(amending the sentencing grids) went into effect on May 23, 2016. 2016 Minn. Laws ch.
160 §§ 1-18, at 591; 22 at 592. Section 18 of the DSRA reduced the severity level of first-
degree controlled substance crimes from a seve rity level 9 to a D8 on the newly created
Drug Offender Grid. Compare Minn. Sent. Guidelines 4.A (Supp. 2015), with Minn. Sent.
Guidelines 4.C. (2016) (demonstrating the changes made to the sentencing grids pursuant
to the DSRA). Under the revised guidelines, the presumptive sentence for a first-degree
controlled substance crime where the offender ha s a criminal history score of five is 115
months, with a range from 98 to 138 months. Minn. Sent. Guidelines 4.C (2016).
Appellant challenges the district court’ s sentence, which applied the pre-DSRA
sentencing grid. The common law amelioration do ctrine allows for the application of an
amended statute to a nonfinal conviction. State v. Kirby , 899 N.W.2d 485, 488 (Minn.
2017). The doctrine was applied by the Minnesota Supreme Court in State v. Coolidge,
282 N.W.2d 511, 514 (Minn. 1979) (“[A] statute mitigating punishment is applied to acts
committed before its effective date, as long as no final judgment has been reached.”). The
supreme court most recently applied the do ctrine to the DSRA sentencing-guideline
amendments in Kirby.
In Kirby, the Minnesota Supreme Court set out the rule regarding the applicability
of the amelioration doctrine:
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

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punishment; and (3) final judgment has not been entered as of
the date the amendment takes effect.

Kirby, 899 N.W.2d at 490. The supreme court held that: (1) the Legislature did not intend
to “abrogate” the amelioration doctrine as it pertained to the st atute; (2) Section 18 of the
DSRA, and the DSRA as a whole, mitigat es punishment; and (3) a defendant whose
conviction was not final when Section 18 of the DSRA became effective on May 23, 2016
is entitled to resentencing under the sentencing grids as amended. Id. at 496. The supreme
court vacated Kirby’s first-degree controlle d substance sentence and remanded to the
district court for resentencing in accordance with the amended sentencing grids. Id.
The outcome in Kirby guides our decision here. Kirby holds that the amelioration
doctrine applies to the DSRA, and that the DSRA mitigates punishment for first-degree
drug offenders whose convictions were not yet final. Id. at 496. As was the case in Kirby,
appellant’s conviction was not final when Section 18 took effect. Appellant pleaded guilty
to one count of first-degree controlled substance crime. Section 18 of the DSRA, amending
the sentencing grids to provide a lower presumptive sentence for appellant’s crime, became
effective the same day appellant’s guilty plea was entered. 2016 Minn. Laws ch. 160 §§ 18,
at 591; 22 at 592. The availability of appeal in appellant’s case wa s not exhausted at the
time the statute went into effect. See Hutchinson v. State , 679 N.W.2d 16 0, 162 (Minn.
2004) (finding a conviction to be final when “judgment of conviction has been rendered,
the availability of appeal exhausted, and the time for a petition for certiorari elapsed or . . .
finally denied” (quotation omitted)). Appella nt was sentenced on September 15, 2016,
nearly four months after Section 18 became effective. As in Kirby, the amended sentencing

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grids should also apply in appellant’s case to determine his presumptive sentence. Kirby,
899 N.W.2d at 496.
Because the supreme court’s reasoning in Kirby controls in this case, we reverse
appellant’s sentence and remand to the district court for resentencing.
Reversed and remanded.