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This opinion will be unpublished and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
A17-1503

State of Minnesota,
Respondent,

vs.

Rachel Ann Robak,
Appellant.

Filed September 17, 2018
Affirmed
Reyes, Judge

Stearns County District Court
File No. 73-CR-16-3917

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, As sistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F . Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges her sentences for a fifth-degree controlle d-substance crime
and two related petty-misdemeanor offenses, arguing that the di strict court erred by
(1) imposing a stay of imposition rather than a stay of adjudic ation on the controlled-

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substance offense and (2) imposing fines on the petty-misdemean or offenses when they
were part of the same course of conduct as the controlled-substance offense. We affirm.
FACTS
On March 26, 2016, police arre sted appellant Rachel Ann Robak after they
responded to a disturbance call outside a St. Cloud bar. While conducting subsequent
searches, officers found marijuan a and a glass pipe on appellan t’s person, and five
Lorazepam pills, a controlled substance, in her wallet. Respon dent State of Minnesota
charged appellant with fifth-degree controlled-substance crime in violation of Minn. Stat.
§ 152.025, subd. 2(a)(1) (2014). The state later amended the c omplaint to add petty-
misdemeanor charges of possession of drug paraphernalia, Minn. Stat. § 152.092 (2014),
and possession of marijuana, Minn. Stat. § 152.027, subd. 4(a) (2014). A jury convicted
appellant of all three charges.
At sentencing on June 29, 2017, appellant sought a stay of adj udication on the
controlled-substance offense pursuant to Minn. Stat. § 152.18, subd. 1 (2014), a deferral
statute. The district court denied the request, ordered a stay of imposition on the fifth-
degree controlled-substance offense, and placed appellant on probation for five years. The
district court also ordered her to pay $50 fines for each of the petty-misdemeanor offenses.
This appeal follows.

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D E C I S I O N
I. The district court did not abuse its discretion by denying appe llant’s request
for a stay of adjudication pursuant to the Drug Sentencing Reform Act.

Appellant argues that the distric t court erred by applying its discretion to stay
imposition of sentence on her controlled-substance offense, rat her than staying its
adjudication, relying on the applicability of the 2016 amended version of the Drug
Sentencing Reform Act (DSRA) to the offense. We disagree.
Under Minnesota law, prosecutions of specific first-time contro lled-substance
o f f e n s e s a r e d e f e r r a b l e . M i n n . S t a t . § 1 5 2 . 1 8 . O n t h e d a t e o f appellant’s controlled-
substance offense, and under the proper circumstances, Minn. St at. § 152.18, subd. 1,
provided that “the court may, without entering a judgment of gu ilty and with the consent
o f t h e p e r s o n , d e f e r f u r t h e r p r o c e e d i n g s a n d p l a c e t h e p e r s o n on probation upon such
reasonable conditions as it may require.” The legislature amen ded this provision in 2016
to make deferral mandatory, stating that “the court must” defer prosecution for first-time
drug offenders. Act of May 22, 2016, ch. 160, § 10, 2016 Minn. Laws at 585 (codified at
Minn. Stat. § 152.18, subd. 1(b)).
The mandatory deferral provision of Minn. stat. § 152.18, subd. 1(b), came into
effect on August 1, 2016, and by its terms “applies to crimes c ommitted on or after that
date.” Act of May 22, 2016, ch. 160, § 10, 2016 Minn. Laws at 585. As appellant’s crime
was committed on March 26, 2016, the amended version of Minn. Stat. § 152.18 requiring
deferral did not apply.

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Appellant further argues that the 2016 amendment should nevertheless apply to her
case under the amelioration doctrine. This “doctrine applies [ statutory amendments] to
cases that are not yet final when the change in law takes effect.” State v. Kirby, 899 N.W.2d
485, 488 (Minn. 2017). In Kirby, the supreme court ruled that the doctrine could allow the
DSRA to apply to crimes committed before the 2016 amendment, bu t before their final
adjudication, if three conditions are satisfied: “(1) there is no statement by the Legislature
that clearly establishes the Legislature’s intent to abrogate t he amelioration doctrine;
(2) the amendment mitigates punis hment; and (3) final judgment has not been entered as
of the date the amendment takes effect.” Id.; accord State v. Otto, 899 N.W.2d 501, 504
(Minn. 2017) (reiterating the test set forth in Kirby and declining to apply the amelioration
doctrine to other sections of the DSRA when the defendant’s offense occurred before the
DSRA took effect).
Here, appellant committed the o ffenses in March 2016, and the amended version of
Minn. Stat. § 152.18 did not bec ome effective until August 1, 2 0 1 6 . B u t , a s i n Otto,
appellant’s argument fails on the first factor of the Kirby test because the legislature stated
that the amendment applies to c rimes committed on or after its effective date. This is a
clear expression of legislative in tent to nullify the ameliorat ion doctrine. The supreme
court also examined this provision in Otto and concluded that “[t]he Legislature’s intent . . .
was crystal clear: to abrogate the amelioration doctrine.” 899 N.W.2d 501. We likewise
conclude that appellant is not entitled to relief under the 2016 amended Minn. Stat. § 152.18
and that the district court did not err in declining to stay adjudication.

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II. The district court did not err in imposing fines for two petty misdemeanors.

Appellant next argues that the district court erred by imposing fines for the petty-
misdemeanor offenses because they were committed during the same course of conduct as
her fifth-degree controlled-substance offense. We are not persuaded.
Generally, a court may not senten ce a defendant to “multiple se ntences, even
concurrent sentences, for two or more offenses that were commit ted as part of a single
behavioral incident.” State v. Ferguson , 808 N.W.2d 586, 589 (Minn. 2012); see Minn.
Stat. § 609.035 (2014). When the facts are not in dispute, as here, this court reviews de
novo whether criminal acts are part of a single behavioral incident. Ferguson, 808 N.W.2d
at 590.
Under Minnesota caselaw, Minn. S tat. § 609.035, subd. 1, does n ot apply to petty
misdemeanors because petty misdemeanors do not constitute “offe nses.” State v. Krech, 312 Minn. 461, 464 n.2, 252 N.W.2d 269, 272 n.2 (1977); see also Minn. Stat. § 152.027,
subd. 4(a) (petty misdemeanor to possess a small amount of mari juana); Minn. Stat.
152.092 (petty misdemeanor to possess drug paraphernalia). The statutory prohibition
against multiple sentences expressed in Minn. Stat. § 609.035 does not apply to appellant’s
petty-misdemeanor offenses.
Affirmed.