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This opinion will be unpublished and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
A17-0227

State of Minnesota,
Respondent,

vs.

Robert Clem Kibble,
Appellant.

Filed January 2, 2018
Reversed and remanded
Cleary, Chief Judge

Redwood County District Court
File No. 64-CR-16-553

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

Jenna M. Peterson, Redwood County A ttorney, Redwood Fa lls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Pres iding Judge; Cleary, Chief Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Robert Kibble challenges hi s 94-month sentence, arguing that he is
entitled to be resentenced in accordance with the provisions of the Drug Sentencing Reform
2
Act (DSRA). 2016 Minn. Laws ch. 160. Appellant also requests clarification on the effect
of the mandatory minimum provision of Minn. Stat. § 609.11, subd. 4 (2014) on his
sentence. Because appellant is entitled to resentencing under the amelioration doctrine,
and because the effect of th e mandatory minimum provision of Minn. Stat. § 609.11,
subd. 4 is unclear, we reverse and remand for further findings and resentencing.
FACTS
On July 26, 2016, police fo und 10.92 grams of heroin, two pellet guns, and other
evidence of the sale of drugs in appellant’s residence. In October 2016, appellant was
charged with eight counts of controlled-substa nce crime, with reference to Minn. Stat.
§ 609.11, subd. 5 (2014), a sentencing prov ision that triggers a mandatory minimum
penalty for offenders who possess or use a firearm during the commission of the underlying
offense. At a pretrial hearing, the parties notified the district court that they had reached a
plea agreement. The district cour t inquired about the effect of State v. Haywood , 886
N.W.2d 485 (Minn. 2016) on the charges against appellant. In Haywood, the supreme
court held that the plain meaning of the wo rd “firearm” does not include pellet guns like
the two alleged to be in appellant’s possession at the time. 886 N.W.2d at 490. The parties
agreed to continue the hearing and conduct further research on the potential effect of
Haywood on the charges against a ppellant. To account for Haywood, the state amended
the charges against appellant to include one coun t of first-degree controlled substance
crime in violation of Minn. Stat. § 152.021, subd. 1(1) (2014), with reference to Minn. Stat.
§ 609.11, subd. 4. Minn. Stat. § 609.11, subd. 4, imposes a mandatory minimum sentence
3
of one year and one day for o ffenders convicted of certain offenses who use or otherwise
employ a dangerous weapon other than a firear m during their offense. On November 14,
2016, appellant pleaded guilty to the amended charge and re ceived a 94-month sentence.
At the time, appellant’s criminal-history scor e of two and offense-se verity level of nine
made the range of his presumptive sentence between 94 and 132 months. Minn. Sent.
Guidelines 4.A. (2014). The district court established the factual basis for the guilty plea.
Appellant admitted to possessing the 10.92 grams of heroin found during the execution of
the search warrant with the intent to sell to other individuals. Appellant also admitted that
the pellet guns were in his possession at the time of the offense. Af ter these facts were
established, the district court found appe llant guilty of “count number eleven” and
sentenced him to 94 months. This appeal follows.
D E C I S I O N
I. Appellant is entitled to resentencing under the 2016 Drug Sentencing Reform
Act.

Appellant asserts that he is entitled to the ameliorative effects of the DSRA. We
agree.
We review questions of st atutory construction and interpretation of the sentencing
guidelines de novo. State v. Campbell , 814 N.W.2d 1, 4 (Minn. 2012). “We apply the
rules of statutory construction to our interpretation of the sentencing guidelines.” Id. The
DSRA made significant changes to Minnesota ’s drug laws, including changes to the
threshold weight requirement s for first-degree drug crimes and amendments to the
sentencing guidelines for drug crimes. 2016 Minn. Laws ch. 160. The majo rity of the
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DSRA’s provisions became effective on Augus t 1, 2016. 2016 Minn. Laws ch. 160,
§§ 1-13, at 576-77, 579, 581-83, 585-88; 15-17, at 589-90; 22, at 592. Section 18 of the
DSRA reduced the presumptive sentencing ranges for first-degree drug crimes and became
effective on May 23, 2016, the day following final enactment. 2016 Minn. Laws ch. 160,
§ 18(b)(4)-(5), at 591; State v. Kirby, 899 N.W.2d 485, 488 (Minn. 2017).
The common-law amelioration doctrine allo ws for the application of an amended
statute to a nonfinal conviction. Kirby, 899 N.W.2d at 488 . In Kirby, the supreme court
concluded that the amelioration doctrine applies 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.

Id. at 490. The supreme court held that: (1) the legislature did not intend to abrogate the
amelioration doctrine with respect to the DSRA; (2) section 18 and the DSRA as a whole
mitigate punishment; and (3) a defendant whos e conviction was not yet final on May 23,
2016, the effective date of section 18, is entitled to resentencing under the amended
sentencing guidelines. Id. at 496.
Here, as in Kirby, all three requirements are satisf ied and appellant is entitled to
resentencing. The legislature made no clear statement regarding its intent to abrogate the
amelioration doctrine with resp ect to section 18. And the section 18 amendments to the
sentencing guidelines for first-degree drug crimes clearly mitigate appellant’s punishment,
reducing the presumptive sentencing range for an offender convicted of the same crime
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with a criminal-history score of two from 94-132 months to 73-102 months. Compare
Minn. Sent. Guidelines 4.A. (2014) with Minn. Sent. Guidelines 4.C. (2016). Finally,
appellant’s conviction was not ye t final on the effective date of section 18. Appellant’s
crime was committed on July 26 , 2016—two months after se ction 18 became effective,
and he was not sentenced un til November of 2016—almost six months after section 18
became effective. Accordingly, the amelioration doctrine app lies to appellant and he is
entitled to resentencing under the DSRA amended sentencing guidelines.
Appellant contends that, because the parties agreed that he should receive a bottom-
of-the-box sentence, his sentence should be reduced to 73 months. But the district court is
in the best position to we igh sentencing options. See Massey v. State , 352 N.W.2d 487,
489 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984). And the only restriction on
resentencing is that a district court cannot impose a longer sentence than the one originally
imposed. See State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975). The
district court is not required to adhere to the parties’ agreement on remand and remains in
the best position to weigh sentencing options. We reverse appellant’s sentence and remand
for resentencing in accordance with the DSRA amended sentencing guidelines.
II. The district court must clarify the effe ct of Minn. Stat. § 609.11, subd. 4, on
appellant’s sentence.

Appellant requests clarification regarding what effect, if any, the dangerous weapon
provision of Minn. Stat. § 609.11, subd. 4, has on his sentence. We agree that clarification
is necessary.
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Minn. Stat. § 609.11 governs mandatory minimum sentences of imprisonment.
Offenders sentenced under provisions of Minn. Stat. § 609.11 are not eligible for early
release programs and must serve the full term of their sentence. Minn. Stat. § 609.11,
subd. 6 (2014). Subdivision 4 provides that offenders who “used, . . . or otherwise
employ[ed], a dangerous weapon other than a firearm” be committed to the commissioner
of corrections for “not less than one year plus one day.” Minn. Stat. § 609.11, subd. 4. The
state amended the charges against appellant in response to the Haywood ruling but failed
to allege that appellant “used” or otherwise employed the pellet guns. At the plea hearing,
the district court conducted the inquiry into the factual basis for the plea and established
that appellant had the pellet guns “in the residence or in [appellant’s] possession or within
[the] area that [he] could uh, use.” But th ere was no finding or admi ssion that appellant
used or otherwise employed the pellet guns during the offense. Because the state failed to
allege that appellant “used” the pellet guns and because there was no finding or admission
that established appellant’s use of the pellet guns during the offense, there is insufficient
evidence to support the Minn. Stat. § 609.11, subd. 4, sentencing provision.
However, it is unclear whether the distri ct court imposed the mandatory minimum
provision on appellant. The district court found appellant guilty of “count number eleven”
of “controlled substance crime in the first degree” but made no reference to Minn. Stat.
§ 609.11, subd. 4. The warrant of commitment contains a reference to Minn. Stat. § 609.11,
subd. 4, but classifies it as “not chargeable” and the terms of disposition or sentence portion
does not include a reference to the mandatory minimum provision. On this record, there is
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insufficient evidence to support the mandatory minimum provision and it is unclear
whether it was actually imposed on appellant. We remand for further findings on the
applicability of Minn. Stat. § 609.11, subd. 4, to appellant.
Reversed and remanded.