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This opinion will be unpublished and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
A16-2050

State of Minnesota,
Respondent,

vs.

Matthew Michael Schirmer,
Appellant.

Filed October 23, 2017
Affirmed
Jesson, Judge

Washington County District Court
File No. 82-CR-14-4930

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

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

Cathryn Middlebro ok, Chief Appe llate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Suspected of stealing a television from a Wa lmart, appellant Matthew Michael
Schirmer was detained and searched. The search revealed 7.1 grams of methamphetamine.
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Schirmer challenges his conviction of second-degree possession of that methamphetamine,
arguing that his guilty plea was inaccurate bec ause it was not supported by an adequate
factual basis. Schirmer also contends that he is entitled to have his conviction reduced to
third-degree possession and to be resentenced under the 2016 Drug Sentencing Reform
Act. We affirm.
FACTS
In November 2014, because appellant Matthew Schirmer was suspected of stealing
a television from a Walmart store, he was detained and searched. Police found 7.1 grams
of methamphetamine in crystal form in plastic baggies on his person. Schirmer was
charged with one count of second-degree possession of a controlled substance. Minn. Stat.
§ 152.022, subd. 2(a)(1) (2014).
Schirmer pleaded guilty to second-degree controlled-substance possession. At his
plea hearing, defense counsel reviewed the terms of the plea agreement with Schirmer and
advised h im of his constitutional rights . To establish the factual basis of his crime,
Schirmer admitted the following facts:
The Prosecutor: . . . And they had placed you under arrest, is
that correct?
A: Detained, yes.
The Prosecutor: And they searched your person?
A: Yes.
The Prosecutor: And what did they find on you?
A: Nothing the first time, and then the second time apparently
they found this methamphetamine
. . . .
The Prosecutor: You knew it was methamphetamine?
A: No. I didn’t know that it was there.
The Prosecutor: Okay. You knew you had it on your person?
A: I did not recall it was on my person, no.
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(Discussion off the record between counsel and the defendant)
A: Okay. Yes.
The Prosecutor: What are you saying yes to?
A: It was on my person.
The Prosecutor: Okay. So there was methamphetamine that
was discovered on your person and you knew it was
methamphetamine; is that what you’re saying?
A: Yes.

Schirmer’s plea agreement allowed for a reduced sentence if Schirmer complied
with conditions prior to sentencing including participation in a substance -abuse treatment
program and avoiding new criminal charges. The district court deferred acceptance of
Schirmer’s guilty plea until sentencing because of these conditions. Schirmer was unable
to comply, and the district court found he violated the plea agreement. The court proceeded
to treat his plea as a straight plea and sentenced him to the presumptive guidelines sentence
of 98 months. Schirmer appeals.
D E C I S I O N
Schirmer argues that his plea was invalid and inaccurate because it failed to show
that he was guilty of second -degree possession of a controlled substance . We review the
validity of a guilty plea de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). He
further asserts that his conviction must be reduced from second- to third-degree controlled
substance possession and that he is entitled to resentencing, both based on changes made
through the 2016 Drug Sentencing Refo rm Act (“DSRA” or “the act”) . See 2016 Minn.
Laws ch. 160 at 576. Whether the DSRA applies to Schirmer is a question of statutory
construction, which we also review de novo. State v. Basal , 763 N.W.2d 328, 332, 335
(Minn. App. 2009).
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I. Schirmer’s guilty plea was valid.
Schirmer contends that the district court’s refusal to permit him to withdraw his
guilty plea created a manifest injustice . The district court may allow a defendant to
withdraw a guilty plea after sentencing to correct a manifest injustice. Minn. R. Crim. P.
15.05, subd. 1. A manifest injustice exists if a guilty plea is not valid. State v. Theis, 742
N.W.2d 643, 646 (Minn. 2007). To be valid, a guilty plea must be accurate, voluntary, and
intelligent. Id.
Schirmer asserts that his plea was inaccurate. For a guilty plea to be accurate , it
must be established by a proper factual basis. Id. To satisfy that requirement, a defendant
must admit on the record to sufficient facts that support a conclusion that he is guilty of the
crime charged. State v. Iverson , 664 N.W.2d 346, 349 (Minn. 2003). We will uphold a
guilty plea if there was sufficient evidence to support a jury verdict that the defendant is
guilty of the crime to which he pleaded guilty. Nelson v. State, 880 N.W.2d 852, 859, 861
(Minn. 2016).
To obtain a conviction of second -degree possession of a controlled substance, the
state must prove that “the person unlawfully possesses one or more mixtures of a total
weight of six grams or more containing cocaine, heroin, or methamphetamine.” Minn.
Stat. § 152.022, subd. 2(a)(1) (2014). And c rimes of possession require proof that the
defendant had “actual knowledge of the nature of the substance.” State v. Ali, 775 N.W.2d
914, 918 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010).
The record demonstrates that there was a sufficient f actual basis to sustain a
conviction of second-degree possession of a controlled substance. Schirmer admitted that
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he possessed a controlled substance and that he knew that it was methamphetamine when
the prosecutor asked, “So there was methamphetamine that was discovered on your person
and you knew it was methamphetamine; is that what you’re saying?” and Schirmer
responded, “Yes.” See Minn. Stat. §§ 152.01, subd. 4 (defining a controlled substance as
a drug listed in schedule I through V ); 152.02, subd. 3(d)(2) (2014) (methamphetamine is
a schedule II substance). Schirmer agreed that the weight of the methamphetamine totaled
over six grams. In addition, he acknowledged that he had two prior controlled substance
convictions within the past ten years. See Minn. Stat. § 152.022, subd. 3(b) (enhancing the
penalty for subsequent controlled substance convictions). On this record, Schirmer’s guilty
plea met the statutory element of knowing possession.
Schirmer argues that he failed t o testify on the record that his possession of
methamphetamine was unlawful . Cf. Minn. Stat. § 152.01, subd. 20 (2014) (defining
“unlawfully” as “selling or possessing a controlled substance in a manne r not authorized
by law”). It is true that a factual basis is usually accomplished by the defendant, who
explains the circumstances of the crime on the record. Williams v. State, 760 N.W.2d 8,
12 (Minn. App. 2009), review denied (Minn. Apr. 21, 2009). And while it is accurate that
Schirmer never explicitly stated in the factual basis of his plea that his possession of
methamphetamine was unlawful , a “plea petition and colloquy may be supplemented by
other evidence to establish the factual basis for a plea.” Lussier v. State, 821 N.W.2d 581,
589 (Minn. 2012).
Other evidence includes the complaint since a defendant “by his plea of guilt y, in
effect judicially admit[s] the allegations contained in the complaint. ” State v. Trott , 338
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N.W.2d 248, 252 (M inn. 1983). The complaint supports the f actual basis of Schirmer’s
plea because it states that the methamphetamine found on Schirmer’s person was in crystal
form instead of pills and it was found in an unmarked bag instead of a prescription bottle.
These facts, and common sense , would indicate that Schirmer’s possession was not
authorized by law.
There are sufficient f acts contained in the plea to establish Schirmer knew he was
in possession of methamphetamine and sufficient f acts in the record to establ ish that his
possession was unlawful. The plea was accurate and the elements of a valid guilty plea are
met.
II. Schirmer is not entitled to have his conviction reduced or to be resentence d
under the 2016 Drug Sentencing Reform Act.

Schirmer first argues that his possession of more than six grams of
methamphetamine no longer qualifies as second -degree controlled substance possession,
but is third -degree possession due to changes made through the 2016 Drug Sentencing
Reform Act. Schirmer further argues that he is entitled to resentencing based on the act.
We disagree.
The 2016 Drug Sentencing Reform Act makes two general changes to Minnesota
law that are relevant here. First, it increases the weight of drugs required to be in a person’s
possession for different degrees of drug crimes . This means that , while prior to the act,
second-degree controlled substance possession required a person to possess only six or
more grams, now under the act, a person must possess 25 or more grams. Compare Minn.
Stat. § 152.022, subd. 2(1) (2014), with Minn. Stat. § 152.022, subd. 2(1) (2016). Second,
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the act reduces the sentencing ranges for some degrees of drug crimes. For instance before
the act, the base range for first -degree possession without any criminal history was 74 to
103 months, while after the act it is 56 to 78 months. Compare Minn. Sent. Guidelines
4.A. (2014), with Minn. Sent. Guidelines 4.C. (2016).
Schirmer committed his offense in 2014. The act went into effect in 2016. Because
the act went into effect when his case was still pending, Schirmer argues both the drug
weight changes and sentencing changes should apply to him . The Minnesota Supreme
Court decided both of these questions in State v. Otto, 899 N.W.2d 501, 502 (Minn. 2017)
and State v. Kirby , 899 N.W.2d 485 (Minn. 2017) , and their analysis does not support
Schirmer’s assertion.
In Kirby and Otto, the supreme court applied the amelioration doctrine, which
provides that an amended criminal statute will apply to crimes “committed before its
effective date if: (1) there is no statement by the Legislature that clearly establish es its
intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and
(3) final judgment has not been entered when the amendment takes effect. ” Otto, 899
N.W.2d at 503 (citing Edstrom v. State, 326 N.W.2d 10 (Minn. 1982) and State v. Coolidge,
282 N.W.2d 511 (Minn. 1979)). In applying that doctrine, the supreme court distinguished
between two types of provisions in the act, one that changed the drug weights for different
degrees of drug crimes and one that changed sentencing. It found that the amelioration
doctrine does not apply to the change in drug weights, but does apply to sentencing. Otto,
899 N.W.2d at 504; Kirby, 899 N.W.2d at 496.
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In Kirby, the appellant sought resentencing for his first-degree controlled substance
possession conviction because the sentencing guidelines range for the crime decreased
under DSRA section 18 . 2016 Minn. Laws ch. 160, § 18 at 591; Kirby, 899 N.W.2d at
487. While the original offense took place prior to the DSRA’s effective date, the case was
still pending on direct appeal. The language in section 18 of the act states that this “section
is effective th e day following en actment,” but provides no additional direction. Id. The
supreme court determined this language did not show clear legislative intent to abrogate
the amelioration doctrine. Kirby, 899 N.W.2d at 491 (citing id.). The supreme court
therefore found the amelioration doctrine applied to the appellant, allowing for mitigated
punishment when the case was not yet final on the date of en actment. The supreme court
remanded the case for resentencing consistent with the act. Id. at 496.
In Otto, however, the appellant sought not only resentencing under DSRA section
18, but also a reduced conviction from first - to second -degree controlle d substance
possession based on the change in drug weights under DSRA sections 3 and 4. 2016 Minn.
Laws ch. 160, §§ 3-4 at 577-81; Otto, 899 N.W.2d at 503 . In that case , too, while the
offense occurred prior to the effective date, it was still pending on appeal. But the sections
on drug weights in the DSRA contain different effective d ate language than section 18 ,
stating that they only “appl[y] to crimes committed on or after” the effective date of
August 1, 2016. Id. In contrast to the language discussed in Kirby, the supreme court in
Otto found the language in these sections did show clear leg islative intent to abrogate the
amelioration doctrine and only allowed for mitigated punishment when offenses were
committed after the effective date . 899 N.W.2d at 503. The first-degree conviction
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therefore remained the same. Id. at 504. The case was remanded but only for resentencing,
since, as in Kirby, the sentencing range for first-degree controlled substance p ossession
had decreased. Id. at 504.
Schirmer’s case is similar to Otto in that he seeks both a reduction in the degree of
his conviction and resentencing. When Schirmer pleaded guilty to his crime, p ossession
of 7.1 grams of methamphetamine constituted second -degree possession but after the
DSRA it no longer does . Compare Minn. Stat. § 152.022 , subd. 2(1) (2014) (requiring
possession of six or more grams), with Minn. Stat. § 152.022, subd. 2(1) (2016) (requiring
25 or more grams). But, as the supreme court held in Otto, the amelioration doctrine does
not apply to a reduction in the degree of a conviction. 899 N.W.2d at 503.
As to the resentencing issue, while the act raised drug weight requirements for
second-degree possession offenses committed on or after August 1, 2016, it did not reduce
the presumptive sentence for Schirmer’s conviction. Compare Minn. Sent. Guidelines 4.C.
(2016) (stating that , based on Schirmer’s criminal history and the severity level of the
offense, his presumptive sentence was 98 months with a range of 84-117), with Minn. Sent.
Guidelines 4.A. (2014) (stating the same). Thus, the act provides no b asis on which to
resentence Schirmer.
Schirmer is not entitled to have his conviction offense re duced because he
unlawfully possessed methamphetamine before the effective date of the act. Therefore, his
conviction of second -degree possession of a control led substance stands. Because
Schirmer’s sentence remains the same regardless of the act’s amended changes to the
sentencing guidelines, he is not entitled to be resentenced.
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Affirmed.