Daryll Christian Strom, petitioner, Appellant,

This opinion will be unpublished and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
A17-0799

Daryll Christian Strom, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 19, 2018
Affirmed
Johnson, Judge
Dissenting, Hooten, Judge

Cook County District Court
File No. 16-CR-12-185

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

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

Molly Hicken, Cook County Attorney, Grand Marais, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2013, Daryll Christian Strom pleaded guilty to a charge of third-degree refusal to
submit to chemical testing based on the undisputed fact s that he was arrested for driving
2
while impaired and refused to submit to a urine test. In 2016, Strom petitioned for post -
conviction relief based on State v. Thompson, 886 N.W.2d 224 (Minn. 2016), in which the
supreme court held that a person may not be criminally punished for refusing to submit to
a warrantless blood test or a warrantless urine test . The post-conviction court denied
Strom’s petition on the ground that Thompson does not apply retroactively. We affirm.
FACTS
On July 27, 2012, an employee of the Cascade River State Park reported that a man
had driven his car over a curb, which resulted in a flat tire, and that the man appeared to be
drunk. Two Cook County deputy sheriffs responded to the report, identified the driver as
Strom, observed signs of impairment , and administered field sobriety tests . A deputy
arrested Strom for driving while impaired . The deputy read Strom the implied-consent
advisory and requested that he submit to a urine test or a blood test. Strom initially agreed
to a urine test but later refused to provide a urine sample. During the booking process, the
deputies found controlled substances on Strom’s person. A deputy also found controlled
substances and drug paraphernalia while conducting an inventory search of Strom ’s
vehicle.
In August 2012, the state charged Strom with four offenses , including third-degree
refusal to submit to chemical test ing, in violation of Minn. Stat. § 169A.26, subd. 1(b)
(2010). In January 2013, Strom pleaded guilty to that charge. In August 2013, the district
court sentenced Strom to 365 days of jail on the test-refusal charge but stayed execution of
the sentence for two years. Strom did not pursue a direct appeal from his conviction and
sentence.
3
In October 2016, the supreme court held in Thompson that a warrantless blood test
or urine test violates the Fourth Amendment to the United Sta tes Constitution and,
accordingly, that a person may not be criminally punished for refusing to submit to such a
test. 886 N.W.2d at 233-34.
In November 2016, Strom filed a post -conviction petition in which he asked the
post-conviction court to vacate his test -refusal conviction for the reasons stated in
Thompson. Strom argued that Thompson applies retroactively because it announced a new
substantive rule of law. In response, the state argued that Strom’s petition is untimely and
that he cannot satisfy an exception to the two-year statute of limitations because Thompson
does not apply retroactively . In March 2017, the post-conviction court agreed with the
state’s position and denied Strom’s petition. Strom appeals.
D E C I S I O N
Strom argues that the post-conviction court erred by denying his petition. He
contends that the district court erred on the ground that Thompson applies retroactively to
his 2013 conviction.
A person seeking p ost-conviction relief must file a post-conviction petition within
two years of “(1) the entry of judgment of conviction or sentence if no direct appeal is filed;
or (2) an appellate court’s disposition of petitioner’s direct appeal.” Minn. Stat. § 590.01,
subd. 4(a) (2016). If the two-year limitations period has expired, the post-conviction court
may consider the untimely petition if the petitioner satisfies any one of five exceptions.
Id., subd. 4(b). For example, a post-conviction petitioner may be heard on the merits of a
post-conviction petition if “the petitioner asserts a new interpretation of federal or state
4
constitutional or statutory law by either the United States Supreme Court or a Minnesota
appellate court and the petitioner establishes that this interpretat ion is retroactively
applicable to the petitioner ’s case. ” Id., subd. 4(b)( 3). This court applies a de novo
standard of review to a post -conviction court’s determination that a new interpretation of
the constitution applies retroactively. Danforth v. St ate, 761 N.W.2d 493, 495 (Minn.
2009).
As a general matter, if the United States Supreme Court announces a new rule of
federal constitutional criminal procedure, a criminal defendant “is entitled to benefit from
that new rule” if his case is pending in the district court or on direct appellate review. Id.
at 496 (quoting O’Meara v. State , 679 N.W.2d 334, 339 (Minn. 2004) ). “But if the
defendant’s conviction is already final at the time the new rule is announced, then the
criminal defendant ordinarily may not avail himself of the new rule. ” Id. (quoting
O’Meara, 679 N.W.2d at 339 -40). There are, however, two recognized exceptions to the
general rule of non -retroactivity: a new rule may apply to convictions that have become
final if
(1) the rule “place[d] an entire category of primary conduct
beyond the reach of the criminal law, ” or “prohibit[ed]
imposition of a certain type of punishment for a class of
defendants because of their status or offense ”; or (2) the new
rule was a “watershed” rule of criminal p rocedure that was
“necessary to the fundamental fairness of the criminal
proceeding.”

Id. at 496-97 (quoting O’Meara, 679 N.W. 2d at 340 n. 3); see also Sawyer v. Smith , 497
U.S. 227, 241-42, 110 S. Ct. 2822, 2831 (1990).
5
In this case, the parties agree that the supreme court announced a new rule of federal
constitutional criminal procedure in Thompson and that Strom ’s conviction was final
before the Thompson opinion was issued. Accordingly, Strom may invoke Thompson
retroactively only if he can satisfy one of the two exceptions to the general rule of non -
retroactivity. See Danforth, 761 N.W.2d . at 496-97. In his appellate brief, Strom relies
solely on the first exception.
The first exception to Minnesota ’s general rule of non -retroactivity is borrowed
from federal law. See id. at 500 (adopting retroactivity principles of Teague v. Lane, 489
U.S. 288, 109 S. Ct. 1060 (1989)). The Supreme Court has explained the first exception
by distinguishing between new substantive rules and new procedural rules. See Schriro v.
Summerlin, 542 U.S. 348, 351 -53, 124 S. Ct. 2519, 2522 –23 (2004). A new substantive
rule is a new rule that places “certain kinds of primary, private individual conduct beyond
the power of the criminal law-making authority to proscribe ” or accords “constitutional
protection to [a] primary activity .” Teague, 489 U.S. at 311, 109 S. Ct. at 1075 -76. By
contrast, a new procedural rule is a new rule that “‘regulate[s] only the manner of
determining the defendant’s culpability.’” Chambers v. State, 831 N.W.2d 311, 326 (Minn.
2013) (quoting Schriro, 542 U.S. at 353, 124 S. Ct. at 2523). The Supreme Court has
elaborated as follows:
New substantive rules generally apply retroactively. This
includes decisions that narrow the scope of a criminal statute
by interpreting its terms, as well as constitutional
determinations that place particular conduct or persons covered
by the statute beyond the State ’s power to punish. Such rules
apply retroactively because they necessarily carry a significant
risk that a defendant stands convicted of an act that the law
6
does not make criminal or faces a punishment that the law
cannot impose upon him.

Schriro, 542 U.S. at 351-52, 124 S. Ct. at 2522-23 (quotations and citations omitted).
This court recently considered and resolved the question whether Thompson applies
retroactively to convictions that became final before Thompson was issued. Two days
before oral arguments in this case , this court issued an opinion in Johnson v. State , 906
N.W.2d 861 (Minn. App. 2018), review granted (Minn. Feb. 28, 2018). In Johnson, we
held that Thompson established a new procedural rule that does not apply retroactively. Id.
at 867.
At oral argument, Strom ’s appellate counsel conceded that Johnson is both
indistinguishable from this case and dispositive of Strom ’s appeal. Strom’s appellate
counsel urged us to overrule Johnson. But we are bound by Johnson because it is a
published opinion and, therefore, precedential. See, e.g., State v. Peter, 825 N.W.2d 126,
129 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013); State v. M.L.A., 785 N.W.2d
763, 767 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010).
Thus, the post -conviction court did not err by denying Strom ’s post -conviction
petition on the ground s that it is untimely and that he cannot establish the exception in
section 590.01, subdivision 4(b)(3), because Thompson does not apply retroactively.
Affirmed.
D-1
HOOTEN, Judge (dissenting)
Having concluded in Ullrich v. State, No. A17-0589, 2018 WL 492630 (Minn. App.
Jan. 22, 2018) (Hooten, J., dissenting), that the new rules announced in State v. Trahan ,
886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), are
substantive as applied to the criminalization of test refusal, Minn. Stat. § 169A.20, subd. 2
(2016), and for the reasons fully explained in Ullrich, I respectfully dissent.
If a new rule of law “alters the range of conduct or the class of persons that the law
punishes,” by placing “particular conduct or persons covered by the statute beyond the
State’s power to punish,” the rule applies retroactively to cases on collateral review. Welch
v. United States , 136 S. Ct. 1257, 1264 –65 (2016) (quotation omitted). Trahan and
Thompson held that a defendant “cannot be prosecuted for refusing to submit to an
unconstitutional warrantless blood” or urine test. Thompson, 886 N.W.2d at 234; Trahan,
886 N.W.2d at 224. Thus, the state could not criminalize Strom’s refusal to submit to
chemical testing, absent valid police authority to require such testing, creating a class of
persons that the state could not punish. Before Trahan and Thompson, a person refusing a
warrantless blood or urine test , absent exigent circumstances, could be prosecuted. After
Trahan and Thompson, the same person can no longer be prosecuted, and even “impeccable
factfinding procedures” would not legitimate a conviction. See Welch, 136 S. Ct. at 1265
(quotation omitted).
Finally, while recognizing the importance of precedent, “[w]e will overrule our own
precedent if provided with a compelling reason to do so.” State ex rel. Pollard v. Roy, 878
N.W.2d 341, 348 (Minn. App. 2016), review granted (Minn. June 29, 2016) and order
D-2
granting review vacated (Minn. Dec. 27, 2016). Strom was convicted of a crime for
exercising his constitutional right to refuse a warrantless blood or urine test. United States
Supreme Court precedent, and the Minnesota Supreme Court’s articulation of these new
rules, require that the new rules have retroactive effect. Accordingly, I would reverse and
remand for the district court’s consideration of whether, because Strom pleaded guilty,1 he
can receive the retroactive effect of the new substantive rule, and any appropriate remedy.

1 The United States Supreme Court recently h eld that a guilty plea does not, by itself, bar
a direct appeal that “call[s] into question the Government’s power to constitutionally
prosecute” an individual. Class v. United States, No. 16-424, 2018 WL 987347, at *6 (U.S.
Feb. 21, 2018) (quotation omitted).