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This opinion will be unpublished and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
A17-0019

State of Minnesota,
Respondent,

vs.

Michael John Nelles,
Appellant.

Filed October 9, 2017
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CR-15-15289

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

Michael O. Freeman, Hennepin County Attorney, Linda K . Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant argues that he is entitled to a reversal of his conviction and to resentencing
under the 2016 Drug Sentencing Reform Act (DSRA), 2016 Minn. Laws, ch. 160. Because
appellant was convicted of a controlled -substance offense for which the controlled -
substance weight threshold was increased by section 3 of the DSRA before his conviction
was final, he is not entitled to have the conviction reversed, and we affirm it; because the
amelioration doctrine requires the resentencing of a person whose conviction was not yet
final on the effective date of section 18(b) of the DSRA, he is entitled to be resentenced,
and we reverse and remand his sentence.
FACTS
In February 2015, police found 26.9 grams of methamphetamine in a drawer at the
residence of appellant Michael Ne lles and his girlfriend. Appellant told police the
methamphetamine belonged to him. In June 2015, he was charged with first -degree
possession of methamphetamine in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2014)
(providing that possession of 25 or more grams of methamphetami ne is a first -degree
controlled-substance crime). In September 2015, he pleaded not guilty. He waived his
right to a jury trial, and, in June 2016, he was found guilty after a bench trial. In October
2016, he was sentenced to prison for 114 months, the low end of the box for first-degree
controlled-substance crime committed by a person with a criminal-history score (CHS) of
four under the 2014 Sentencing Guidelines.
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On appeal, appellant argues that he is entitled to have his conviction reversed and
reduced under section 3 of the DSRA, providing in relevant part that, on or after August 1,
2016, possession of 25 or more grams of methamphetamine is a second-degree controlled-
substance crime, and that he is entitled to be resentenced under section 18(b) of the DSRA,
providing in relevant part that, as of May 23, 2016, the sentencing ra nge for first -degree
controlled-substance crimes committed by persons with a CHS of four is 75 to 105 months.
D E C I S I O N
“Statutory construction and interpretation of the sentencing guidelines are subject
to de novo review. ” State v. Campbell , 814 N.W.2d 1, 4 (Minn. 2012). The rules of
statutory interpr etation and construction are applied when interpreting the sentencing
guidelines. Id.
1. The effect of the DSRA on appellant’s conviction
“A person convicted of a controlled substance offense for which the controlled
substance weight threshold was increased by section 3 of the [DSRA] before his conviction
was final is not entitled to have the conviction reversed.” State v. Otto, 899 N.W.2d 501,
502 (Minn. 2017). Otto, like this case, concerned a conviction for first -degree possession
of methamphetamine prior to August 1, 2016. Id. “Because Otto committed his offense
before the DSRA took effect, he is not entitled to have his conviction of first -degree
possession reve rsed.” Id. at 504. Otto rejected the argument that the effective -date
language should not apply to the portions of the DSRA that mitigate punishment, i.e.
sections 3 and 4 (increasing the weight threshold for first - and second-degree possession
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from 25 to 50 grams and 6 to 25 grams. Id. Under Otto, appellant is not entitled to have
his conviction of first-degree possession reversed.
2. The effect of the DSRA on appellant’s sentence
Under the DSRA amendments to the sentencing grid, a defendant is required to be
resentenced “only if: (1) the Legislature made no statement that clearly establishes the
Legislature’s intent to abrogate the amelioration doctrine; (2) the amendment mitigated
punishment; and (3) final judgment had not been entered as of the date the amendment took
effect.” State v. Kirby , 899 N.W.2d 485, 490 (Minn. 2017). Here, as in Kirby, final
judgment had not been entered by August 1, 2016, so the third requirement is satisfied. See
id.
As to the first requirement, Kirby concluded that “the Legislature made no statement
that clearly establishes its intent to abrogate the amelioration doctrine with respect to
DSRA § 18 [(reducing sentencing range for those convicted of first -degree possession)].”
Id. at 495. Thus, the first requirement is met.
As to the second requirement, the issue is “whether the Legislature reduced the
presumptive sentences from those in the sentencing grid under which [the defendant] was
sentenced.” Id. Here, appellant’s CHS of four meant that the applicable sente nce range
was 114-160 months. Under the DSRA, the applicable sentence range for first -degree
possession committed by those with a CHS of four is 90 -126 months. Thus, the
Legislature, in the DSRA, did reduce appellant’s presumptive sentence, and the seco nd
requirement is met. See id. at 496 (“The [DSRA] plainly mitigates punishment” for
offender whose sentencing range was reduced “from 138 to 192 months to 110 to 153
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months”); see also Otto, 899 N.W.2d at 504 (“For the reasons discussed in Kirby, we
conclude that the amelioration doctrine requires that Otto be resentenced.”) . Under Otto
and Kirby, appellant is not entitled to have his first-degree conviction reversed and replaced
with a second-degree conviction, but he is entitled to have his sentence reversed and to be
resentenced under the DSRA.
Affirmed in part, reversed in part, and remanded.