Ryan David Avalon, 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This opinion will be unpublished and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
A18-1654

Ryan David Avalon, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 13, 2019
Affirmed
Smith, John, Judge*

Hennepin County District Court
File No. 27-CR-11-13681

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assista nt
Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M. , Presiding Judge; Larkin, Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm the district court’s order denying appellant Ryan David Avalon’s motion
to correct his sentence under the Drug Sentencing Reform Act (DSRA) because Avalon’s
final judgment was entered four years before the DSRA went into effect.
FACTS
In 2011, Avalon was caught possessing nearly 200 grams of hallucinogenic
mushrooms. The state charged him with second -degree possession of a controlled
substance under Minn. Stat. § 152.022, subd. 2(3) (201 0). On January 4, 2012, Avalon
pleaded guilty and was sentenced to 48 months , with execution stayed for five years , and
was placed on probation.
By 2016, Avalon had violated the terms of probation a number of times. On April
26, 2016, the district court revoked his probation and ordered execution of the 48 -month
sentence.
In 2018, Avalon petitioned for postconviction relief to correct his sentence in
accordance with the (DSRA), which went into effect in M ay 2016. The district court
denied his petition.
D E C I S I O N
Avalon argues that the postconviction court abused its discretion by failing to
resentence him in accordance with the DSRA. We review postconviction decisions for an
abuse of discretion. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012) . “Specifically,

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we review the district court’s legal conclusions de novo and its factual findings under the
clearly erroneous standard.” Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013).
The DSRA, in part, modified statutory provisions of the sentencing guidelines to
make certain presumptive sentences less severe. See 2016 Minn. Laws ch. 160, § 18(b), at
591. Section 18 of the DSRA provides that the section “is effective the day following final
enactment.” 2016 Minn. Laws ch. 160, § 18, at 591. The governor signed the DSRA into
law on May 22, 2016, and section 18 became effective on May 23, 2016. See 2016 Minn.
Laws ch. 160, at 591-92.
In State v. Kirby , the supreme court held that section 18 of the DSRA applies to
crimes committed before May 23, 2016, so long as three requirements are satisfied:
(1) there is no statement of legislative 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. ” 899 N.W.2d 485, 490 (Minn. 2017). Resentencing is
therefore required, based on the amelioration doctr ine, when a person’s “conviction was
not yet final on the effective date of section 18(b) of the [DSRA].” Id. at 487.
A judgment is final in a criminal case “when the district court enters a judgment of
conviction and imposes or stays a sentence.” Minn. R. Crim. P. 28.02, subd. 2(1). Here,
Avalon’s judgment was final on January 4, 2012 , when he pleaded guilty to and was
convicted of second -degree possession of a controlled substance , and was sentenced .
Avalon did not appeal his conviction . Avalon’s conviction was therefore final four years
before section 18 of the DSRA became effective, and he is thus not entitled to resentencing
under the DSRA. See Luna -Pliego v. State , 904 N.W.2d 916, 917 (Minn. App. 2017)

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(concluding that a defendant is not entitled to resentencing because his conviction was final
before the DSRA became effective).
A review of Avalon’s probation -revocation order, which executed Avalon’s
sentence of 48 months in prison, shows that the po stconviction court determined that
Avalon was eligible for resentencing under the DSRA because the probation -revocation
order was entered in April 2016 and the time for appeal had not passed when the DSRA
went into effect the next month. But Minn. Stat. § 609.14, subd. 3(2) (2018) provides that
if the district court finds grounds for revoking a stay, the district court may, “if [the]
sentence was previously imposed and execution thereof stayed . . . order execution of the
sentence previously imposed.” When the district court revoked Avalon’s sentence in April
2016, it was not imposing a new sentence but was revoking the stay of execution that had
been imposed in January 2012. The postconviction court incorrectly analyzed the date of
final judgment in Avalon’s case. B ecause Avalon’s sentence was fin al in 2012, he is not
eligible for resentencing under the DSRA and the revocation of his probation in 2016 does
not change the date of final judgment.
Because final judgment was entered before the DSRA went into effect, Avalon is
not entitled to resentenc ing and the district court properly denied his motion to correct
sentence. For that reason, we need not address Avalon’s arguments requesting a downward
departure upon resentencing.
Affirmed.