Jeremy Richard Ullrich, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0589

Jeremy Richard Ullrich, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 24, 2018
Reversed and remanded
Smith, Tracy M., Judge

Blue Earth County District Court
File No. 07-CR-04-540

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVo s, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Hooten, Jud ge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jeremy Richard Ullric h pleaded guilty in 2004 to refu sing to submit to
chemical testing of his blood or urine after his arrest on suspicion of driving while impaired.

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In 2016, Ullrich petitioned for postconviction relief based upo n the Minnesota Supreme
Court’s decisions in State v. Thompson , 886 N.W.2d 224 (Minn. 2016), and State v.
Trahan, 886 N.W.2d 216 (Minn. 2016), which held that a person may not be prosecuted
for refusing to submit to a warrantless blood or urine test unless an exception to the warrant
requirement is shown to apply. T he postconviction court denied relief, concluding that
Thompson and Trahan were not retroactively applicable to Ullrich’s case and that Ullrich’s
guilty plea forfeited his right to bring a Fourth Amendment challenge to his conviction. In
light of the supreme court’s recent opinion in Johnson v. State , 916 N.W.2d 674 (Minn.
2018), we reverse and remand for further proceedings.
FACTS
On January 19, 2004, Mankato police stopped Ullrich’s vehicle b ased on the
officer’s knowledge that Ullrich had a suspended license. Afte r arresting Ullrich, police
took him to the law enforcemen t center, where an officer read h im the implied-consent
advisory. Ullrich stated that he understood the advisory, cons ulted with an attorney, and
then refused to consent to either a blood or urine test.
Based upon items found during the search of Ullrich’s vehicle, the state charged
him with first-degree controlled- substance crime, conspiracy to commit first-degree
controlled-substance crime, fifth -degree controlled-substance c rime, first-degree driving
while impaired, and first-degree test-refusal. On July 29, Ull rich pleaded guilty to an
amended count of attempted manuf acture of methamphetamine and t o first-degree test-
refusal. The district court sentenced Ullrich to 23 and 69 mon ths for these offenses,
respectively.

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On October 12, 2016, the Minnesota Supreme Court issued opinions in Thompson,
886 N.W.2d 224, and Trahan, 886 N.W.2d 216, which held that a person may not be
prosecuted for refusing to submit to a warrantless blood or uri ne test unless an exception
to the warrant requirement appl ies. Ullrich subsequently petit ioned the district court for
postconviction relief, asserting that he was entitled to the re troactive application of these
decisions and to have his test-refusal conviction vacated. In March 2017, the
postconviction court issued an order denying Ullrich’s petition for relief. In doing so, the
court concluded that Thompson and Trahan were not retroactively applicable to Ullrich’s
case and that Ullrich had forfeited his right to bring a Fourth Amendment challenge to his
conviction when he pleaded guilty. Ullrich appealed.
This court issued an unpublished opinion on January 22, 2018, a ffirming the
postconviction court’s denial of relief. Ullrich v. State, 2018 WL 492630 (Minn. App.
Jan. 22, 2018). In doing so, this court relied on its opinion in Johnson v. State, 906 N.W.2d
861 (Minn. App. 2018), rev’d, 916 N.W.2d 674 (Minn. 2018), which held that Thompson
and Trahan announced new procedural rules that were not retroactively applicable to cases
that were final at the time those opinions were issued. Ullrich, 2018 WL 492630 at *2.
Ullrich petitioned for further review; the supreme court grante d the petition and stayed
proceedings pending its review of Johnson.
The supreme court issued its opinion in Johnson on August 22, 2018, holding that
the United States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct. 2160
(2016)—on which the holdings in Trahan and Thompson are premised—announced a new
substantive rule that is retroac tively applicable to cases othe rwise final at the time it was

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decided. Johnson, 916 N.W.2d at 684. It held as well that, because a challenge to the
constitutionality of a criminal s tatute is essentially a challe nge to the subject-matter
jurisdiction of the court, a defendant’s ability to raise such a claim is not waived or forfeited
by his plea of guilty to a violation of the statute so challeng ed. Id. at 681. The supreme
court noted, however, that a defendant is not automatically entitled to relief because there
must be a case-by-case evaluation to determine whether a warran t or an exception to the
warrant requirement existed at the time he or she was asked to submit to a chemical test.
Id. at 684. The supreme court then remanded the case so the district court could “apply the
Birchfield rule and determine if the tes t-refusal statute was unconstitutional as applied to
Johnson.” Id.
The supreme court thereafter dissolved its stay in Ullrich’s case, vacated this court’s
prior opinion, and remanded the matter to this court “for recon sideration in light of
Johnson.” This court reinstated Ullrich’s appeal and directed the par ties to file
supplemental briefs addressing the impact of Johnson on the issues presented.
D E C I S I O N
Appellate courts review a distri ct court’s decision to deny a p etition for
postconviction relief for an abuse of discretion. See Matakis v. State, 862 N.W.2d 33, 36
(Minn. 2015). “A postconviction court abuses its discretion when its decision is based on
an erroneous view of the law or is against logic and the facts in the record.” Riley v. State,
819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted). In deter mining whether a court
has erred as matter of law, “[t]he general rule is that appella te courts apply the law as it
exists at the time they rule on a case, even if the law has changed since a lower court ruled

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on the case.” Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs , 617 N.W.2d 566, 575
(Minn. 2000).
Here, the postconviction court denied Ullrich’s petition for re lief on two separate
grounds: (1) because the rules announced in Thompson a n d Trahan did not apply
retroactively to final cases, and (2) because Ullrich forfeited his right to bring a Fourth
Amendment challenge to his conviction when he pleaded guilty. In his initial brief to this
court, Ullrich argued that these conclusions were in error. In light of the supreme court’s
decision in Johnson, which held contrary to the postconviction court on both grounds, we
agree and conclude that the postconviction court erred as a matter of law. 916 N.W.2d at
681, 684.
As in Johnson, though, Ullrich is only entitled to relief if neither a searc h warrant
existed nor any exception to the Fourth Amendment’s warrant req uirement applied at the
time he refused to submit to chemical testing. Id. at 684. In his supplemental brief, Ullrich
argues that the appropriate remedy is to remand this matter for the district court to
determine whether either of thes e circumstances existed and so to determine whether the
test-refusal statute was unconstitutional as applied to his spe cific case. Conversely, the
state argues that a remand for further proceedings is unnecessa ry because Ullrich, as the
petitioner in this matter, failed to meet his bur den of proof o f the facts that would entitle
him to relief. And because Ullrich did not request an evidentiary hearing on his petition in
district court, the state argues that he is not entitled to any additional such opportunity on
remand and that the order of the postconviction court should be affirmed.

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It is generally correct, as the state notes, that the petitioner in a postconviction matter
“bears the burden to establish by a preponderance of the eviden ce that facts exist that
warrant postconviction relief.” Tscheu v. State, 829 N.W.2d 400, 403 (Minn. 2013); see
also Minn. Stat. § 590.04, subd. 3 (2018). And on appeal from the denial of postconviction
relief, this court would ordinarily review the record to determine whether the petitioner had
met this burden of proof and would affirm the denial if he failed to do so. See, e.g., Miles
v. State, 840 N.W.2d 195, 203-04 (Minn. 2013) (petitioner failed to pro ve that hearsay
declarant was unavailable or that statement was trustworthy); Tscheu, 829 N.W.2d at 404
(petitioner failed to prove that newly discovered evidence was credible). But, based upon
the supreme court’s opinion in Trahan, this typical burden assignment does not apply in
cases such as Ullrich’s.
In Trahan, the defendant stayed his direct appeal and filed a petition f or
postconviction relief seeking withdrawal of his guilty plea on the grounds that Minnesota’s
test-refusal statute was unconstitutional. 886 N.W.2d at 220. O n a p p e a l a f t e r t h e
postconviction court’s denial of relief, the supreme court ulti mately held under Birchfield
that the test-refusal statute would be unconstitutional as appl ied to Trahan if chemical
testing was not supported by either a search warrant or an appl icable exception to the
warrant requirement. Id. at 221. In then evaluating wh ether a warrant exception applied,
the supreme court stated unqualifiedly that “[t]he government has the burden to show that
exigent circumstances existed.” Id. at 222. And, after analyzing the facts, the court
concluded “that the State cannot meet its burden to prove exige nt circumstances.” Id. at
223.

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Consequently, we conclude that the burden to prove the existence of either a search
warrant or an applicable exception to the warrant requirement i n cases such as Ullrich’s
lies with the state. Consistent with the supreme court’s opini on in Johnson, we therefore
reverse and remand for further proceedings, including application of the Birchfield rule and
a determination as to whether “t he test-refusal statute was unc onstitutional as applied to
[Ullrich].” Johnson, 916 N.W.2d at 684. Because the parties agree that no search warrant
had been issued in this case, the state on remand shall bear th e burden of proving that an
exception to the warrant requirement existed at the time law-en forcement officers asked
Ullrich to submit to a chemical test of his blood or urine.
Reversed and remanded.