1

STATE OF MINNESOTA

IN SUPREME COURT

A19-0679

Court of Appeals Moore, III, J.
Dissenting, Gildea, C.J.
State of Minnesota,

Appellant,

v. Filed: August 25, 2021
Office of Appellate Courts
Derek James Robinette,

Respondent.
________________________

Keith M. Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, Saint
Paul, Minnesota; and

Michelle M. Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota, for appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State
Public Defender, Saint Paul, Minnesota, for respondent.
________________________

S Y L L A B U S

1. Under the amelioration doctrine, the phrase “statement by the Legislature”
from State v. Kirby, 899 N.W.2d 485, 490 (Minn. 2017) , means statutory language
expressly declaring or clearly indicating the intent of the Legislature to abrogate the
doctrine.

2
2. Minnesota Sentencing Guidelines and associated commentary that have not
been ratified by the Legislature are not statements by the Legislature abrogating the
amelioration doctrine and therefore respondent is entitled to resentencing.
Affirmed.

O P I N I O N
MOORE, III, Justice.
This case asks us to decide whether a Minnesota Sentencing Guideline and
associated commentary adopted by the Minnesota Sentencing Guidelines Commission but
not ratified by the Legislature can abrogate the common law amelioration doctrine. The
amelioration doctrine applies to a statute that mitigates the punishment for “acts committed
before its effective date, as long as no final judgment has been reached.” State v. Coolidge,
282 N.W.2d 511, 514 (Minn. 1979). The court of appeals concluded that unratified
Commission statements cannot abrogate the amelioration doctrine because they do not
constitute a “statement by the Legislature” as set forth in State v. Kirby, 899 N.W.2d 485,
490 (Minn. 2017). Accordingly, the court of appeals affirmed respondent’s conviction but
held that he is entitled to the benefit of a change to the Sentencing Guidelines adopted by
the Commission in 2019, which resulted in a reduction of his criminal history score. Thus,
the court of appeals remanded to the district court for respondent to be resentenced in
accordance with the modified guidelines. Because we agree with the court of appeals’
conclusion, we affirm.

3
FACTS
In 2015, respondent Derek James Robinette was convicted of felony assault by
strangulation in violation of Minn. Stat. § 609.2247 (2020). The district court stayed
imposition of Robinette’s sentence and placed him on probation until 2020. On December
1, 2017, Robinette was discharged from probation 3 years early.
In 2018, Robinette was charged in Otter Tail County with first-degree and
second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (2020), and
Minn. Stat. § 609.343 (2020), based on allegations that he sexually assaulted his
stepdaughter on multiple occasions in 2017 and 2018. A jury found Robinette guilty of all
charges.
At sentencing in February 2019, Robinette was assigned a custody status point to
his criminal history score under the Sentencing Guidelines for committing the sexual
assaults during the initial probationary period for his 2015 felony conviction.1 The custody
status point was mandated, notwithstanding Robinette’s early discharge from probation, by
Minn. Sent. Guidelines 2.B.2 .a(4) (2018) (assigning a criminal history point “if the
offender is discharged from probation but commits an offense within the initial period of
probation pronounced by the court”). The district court sentenced Robinette to 168 months
in prison, the presumptive sentence based on his criminal history score of two.
In January 2019, a month before Robinette was sentenced, the Commission
submitted its 2019 Report to the Legislature, which contained proposed modifications to

1 He was assigned a second custody sentence point for having a previous felony
conviction. Minn. Sent. Guidelines 2.B.1.
4
the Sentencing Guidelines. See Minn. Stat. § 244.09, subd. 11 (2020) (requiring the
Commission to “submit a written report” to the Legislature by January 15th “that identifies
and explains all . . . proposed modifications” to the S entencing Guidelines). Within the
report, the Commission proposed eliminating Guideline 2.B.2.a(4) , the guideline that
assigned Robinette a custody status point for committing these sexual assaults during the
initial probationary period for his earlier offense. Minn. Sent. Guidelines Comm’n, August
2019 Amendments (2019). All such proposed modifications automatically become
effective on August 1 of that year “unless the legislature by law provides otherwise.”2 Id.
The Legislature did not act in response to the Commission’s 2019 report. Therefore, the
proposed modifications within it which would result in a reduction of a defendant’s
sentence, including the elimination of Guideline 2.B.2.a(4), became effective on August 1,
2019.
In the Commission’s 2019 Report to the Legislature, the Commission also included
several modifications of the Guidelines and recommended legislative changes regarding
the effective dates of changes to the Guidelines in response to our decision in State v. Kirby.
Minn. Sent. Guidelines Comm’n, August 2019 Amendments at 13–14. First, the
Commission declared that its proposed 2019 modifications to the Guidelines would only
apply to crimes committed on or after August 1, 2019. Second, the Commission modified
Guideline 3.G.1, governing the effective date to modifications of the Guidelines, associated
commentary, and appendices to clarify its intent that the Guideline applies to the entire

2 All other modifications to the Sentencing Guidelines “shall take effect according
to the procedural rules of the commission.” Minn. Stat. § 244.09, subd. 11.
5
Sentencing Guidelines, not just part. Id.; see Kirby, 899 N.W.2d at 493. And third, the
Commission recommended that the Legislature amend Minn. Stat. § 244.09, subd. 11, to
clarify that August 1 Guidelines changes will apply to crimes committed on or after that
date, unless the Commission or the Legislature directs otherwise. Minn. Sent. Guidelines
Comm’n, August 2019 Amendments at 14 & app. 4.2 at 76. Again, the Legislature took
no action in response to the report.
Robinette appealed his conviction and sentence, arguing as to his sentence that the
amelioration doctrine should be applied and his criminal history score reduced based on
the 2019 elimination of Guideline 2.B.2.a(4). 3 State v. Robinette, 944 N.W.2d 242, 248–
49 (Minn. App. 2020). The court of appeals affirmed Robinette’s conviction but agreed
that he is entitled to the application of the amelioration doctrine because the change in the
guidelines which resulted in the reduction of his presumptive sentence took effect before
his case became final. Id. at 250. The court therefore reversed his sentence and remanded
for resentencing under the modified sentencing guidelines. Id. at 251.
We granted the State’s petition for review on the question of whether the
amelioration doctrine may be abrogated by Commission statements which have not been
acted upon by the Legislature.

3 With one fewer criminal history point, Robinette’s presumptive sentence would be
156 months in prison rather than 168 months.
6
ANALYSIS
This case requires us to decide whether the common law amelioration doctrine may
be abrogated by statements of the Minnesota Sentencing Guidelines Commission that are
not ratified by the Legislature. 4 In State v. Kirby, we reaffirmed the general applicability
of the amelioration doctrine to cases that are not final when a change in the law duly
enacted by the Legislature takes effect. 899 N.W.2d 485, 490 (Minn. 2017). We noted in
Kirby that, while not previously referred to in our case law as “the amelioration doctrine,”
the doctrine is a “creature of common law [and] . . . is of long standing,” id. at 488–89,
deriving its roots from “a common-law rule more than 160 years old,” 5 id. at 496. See,
e.g., United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (“[I]f, subsequent
to the judgment, and before the decision of the appellate court, a law intervenes and
positively changes the rule which governs, the law must be obeyed . . . .”); Commonwealth
v. Wyman, 66 Mass. (12 Cush.) 237, 239 (Mass. 1853) (“[A]n act plainly mitigating the
punishment of an offence . . . is an act of clemency”); State v. Williams, 31 S.C.L. (2 Rich.)
418, 422–23 (S.C. 1846) (applying amelioration based on amendments to South Carolina’s
forgery statute that reduced punishment from death to “whipping, imprisonment and fine”);

4 We specifically declined to rule on this issue four years ago in Kirby, 899 N.W.2d
at 493 (“We have never ruled—and decline to rule today —that the amelioration doctrine
may be abrogated by Commission statements not ratified by the Legislature”).

5 The amelioration doctrine is similar to the European doctrine of lex mitior (“the
milder law”), which mandates “that criminal defendants whose prosecutions are not final
enjoy the retroactive benefits of statutes that either decriminalize conduct altogether or
reduce punishment for it.” Peter Westen, Lex Mitior: Converse of Ex Post Facto and
Window into Criminal Desert, 18 New Crim. L. Rev. 167, 168–69 (2015).
7
see also Eileen L. Morrison, Note, Resurrecting the Amelioration Doctrine: A Call to
Action for Courts and Legislatures, 95 B.U. L. Rev. 335, 340 (2015) (discussing the origins
of the amelioration doctrine).
The amelioration doctrine applies an amendment mitigating punishment to acts
committed prior to that amendment’s effective date, if there has not been a final judgment
reached in the case. State v. Coolidge, 282 N.W.2d 511, 514 (Minn. 1979). The rationale
behind the doctrine “is that the legislature has manifested its belief that the prior
punishment is too severe and a lighter sentence is sufficient” and “[n]othing would be
accomplished by imposing a harsher punishment . . . other than veng eance.” Id. at 514–
15; see also In re Estrada, 408 P.2d 948, 952 (Cal. 1965) (explaining that amelioration is
supported by the “modern theories concerning the functions of punishment in criminal
law”). Furthermore, “[l]egislative enactments are the clearest and best evidence of a
society’s evolving standard of decency and of how contemporary society views a particular
punishment.” Humphrey v. Wilson, 652 S.E.2d 501, 505 (Ga. 2007).
In Kirby, we articulated a three-part test for the application of the amelioration
doctrine.
6 We stated that an amended criminal statute applies to crimes before its effective

6 The first portion of the dissent’s analysis contains a lengthy discussion regarding an
issue the State chose not to present to our court—the question of whether the amelioration
doctrine reaffirmed in Kirby even applies to this case. The dissent’s assertion that we skirt
this issue without explanation is belied by the record before us, and contrary to our well-
established forfeiture law. We decline to address the question of whether the Kirby test
applies to this case, not out of avoidance, but because the State forfeited appellate review
of the issue. This issue is simply not before us because it was neither raised in the State’s
petition for review (presenting “[t]he ultimate issue” as “whether the amelioration doctrine
was abrogated”) nor its briefing to our court (describing the sole legal issue as whether “the
8
date if: (1) there is no statement by the Legislature that clearly establishes its intent to
abrogate the amelioration doctrine, (2) the amendment mitigates punishment, and (3) final
judgment has not been entered when the amendment takes effect. 899 N.W.2d at 490. 7

amelioration doctrine [can] be abrogated by express statements by the Minnesota
Sentencing Guidelines Commission”). In other words, the State conceded that the Kirby
test applied to this case and contested only the question of whether prong one from that test
was satisfied with the facts presented. We disagree with the dissent’s decision to raise the
general applicability of the Kirby test to this case sua sponte. Leuthard v. Indep. Sch. Dist.
912–Milaca, 958 N.W.2d 640, 648 –49 (Minn. 2021) (explaining that appellate courts
typically confine review to issues actually raised by the parties). We have long held that a
party forfeits appellate review by failing to brief or argue an issue on appeal, even if raised
in an earlier stage of the proceedings, including in a petition for review. State v. Williams,
771 N.W.2d 514, 517 n.2 (Minn. 2009). And “we do not address issues that were not raised
in a petition for review.” In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn. 2005).
“The premise of our adversarial system is that appellate courts do not sit as self -directed
boards of legal inquiry and research, but essentially as arbiters of legal questions presented
and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983). This principle is particularly important here because the unargued issue is
complicated and nuanced; in such circumstances, we are well-served by thorough briefing
by the parties. We therefore decline to address the merits of the dissent’s first argument,
because to do so would defy the “axiomatic” principle “that issues not ‘argued’ in the briefs
are deemed waived on appeal.” In re Application of Olson for Payment of Servs.,
648 N.W.2d 226, 228 (Minn. 2002) (quoting State v. Grecinger, 569 N.W.2d 189, 193 n.8
(Minn. 1997)).

7 We also note our concern with the undefined dimensions of the dissent’s assertion
that we may exercise discretion “to reach dispositive legal threshold issues even though
not presented by the parties.” We have no quarrel with the general proposition that in
“exceptional circumstances, especially in criminal cases, appellate courts, in the public
interest, may, of their own motion, notice errors to which no exception has been taken, if
the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1935).
But given our previous assertion that “issues not argued in the briefs are deemed waived
on appeal,” Grecinger, 569 N.W.2d at 193 n.8, we should be extremely cautious about
exercising our discretion to consider an issue that the State raised before the court of
appeals and chose not to present in its appeal to our court. Throughout any given case,
there may well be potentially important threshold legal issues abandoned by parties on
appeal for unarticulated reasons. Such issues should be left for the parties to raise in
9
Here, the State concedes that the second and third parts of the Kirby test are met. 8
Therefore, we are asked to only consider whether there was a “statement by the Legislature
that clearly establishes an intent to abrogate the amelioration doctrine” that is applicable to
Robinette’s sentence. Kirby, 899 N.W.2d at 496.
The State argues that the Legislature has made two statements that clearly establish
its intent to abrogate the application of the amelioration doctrine. The first statement is
Sentencing Guideline 3.G.1, which provides that “[m] odifications to . . . the Minnesota
Sentencing Guidelines . . . apply to offenders whose date of offense is on or after the
specified modification effective date.” The second statement is the portions of the
Commission’s 2019 report to the Legislature that show the Commission’s intent to
abrogate the amelioration doctrine. Robinette counters that the Legislature did not clearly
abrogate the amelioration doctrine by its inaction on the Commission’s report because only
express language in an enacted statute can do so. We agree with Robinette.
I.
We begin our analysis by defining a “statement by the Legislature.” Although we
adopted the standard in Kirby, we did not specifically define it.

another case, and we should not resurrect them sua sponte once forfeited, even if they are
the arguable result of oversight or error. Cf. Puckett v. United States, 556 U.S. 129, 134
(2009) (explaining that “errors are a constant in the trial process” and appellate courts
should refrain from exercising a “reflexive inclination” to reverse based on an unpreserved
error) (quoting United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005) (Boudin, C.J.,
concurring)).

8 Specifically, the State stated in its briefing to our court that “Only the first prong is
contested here; the last two prongs are clearly satisfied.”
10
Historically, we have concluded that the amelioration doctrine was abrogated by
legislative action in only one of our previous decisions, Edstrom v. State, 326 N.W.2d 10,
10 (Minn. 1982). In Edstrom, the defendant sought postconviction relief in the form of
resentencing based on an amendment to a criminal sexual conduct statute. Id. Within the
statutory language of the amendment, however, the Legislature stated that the changes to
the statute were to “have no effect on crimes committed before the effective date of the
act.” Id. (citing Minn. Stat. § 609.351 (1980)). Based on this explicit language, we
determined the Legislature had clearly abrogated the amelioration doctrine and thus
affirmed the district court’s denial of the defendant’s requested relief. Id. Thus, our
holding in Edstrom demonstrates that a “statement by the Legislature” includes express
language within an enacted statute.
In all our other cases analyzing the issue, we have concluded based on legislative
actions that the amelioration doctrine was not abrogated. See Coolidge, 282 N.W.2d at
514–15 (reducing a defendant’s sentence by 9 years after amendments to Minnesota’s anti-
sodomy statute mandated application of the amelioration doctrine); Ani v. State,
288 N.W.2d 719, 720 (Minn. 1980) (same ); Kirby, 899 N.W.2d at 496 (applying
amelioration to a defendant’s sentence based on the 2016 Drug Sentencing Reform Act,
Act of May 22, 2016, ch. 160, § 18, 2016 Minn. Laws 576, 590 –91); State v. Otto,
899 N.W.2d 501, 504 (Minn. 2017) (same ). But with no clear jurisprudence on the
question of whether a change in sentencing guidelines adopted through legislative inaction
can abrogate the amelioration doctrine, we turn to other jurisdictions for additional
guidance.
11
Nearly every state has addressed the amelioration doctrine and the circumstances
under which it may be abrogated in one way or another. The approaches vary widely.
In some states, including ours, abrogation can be accomplished by a “savings
clause” located within the statutory language. See Edstrom, 326 N.W.2d at 10; Coolidge,
282 N.W.2d at 514– 15. A savings clause is a statutory provision “which in certain
circumstances ‘saves’ [sentences] from the common- law effect of supervening
enactments.” Bell v. Maryland, 378 U.S. 226, 232 (1964). In Edstrom, we noted the
Legislature’s use of a savings clause and declined to apply the amelioration doctrine.
326 N.W.2d at 10; Minn. Stat. § 609.351 (“[C]rimes committed prior to August 1, 1975,
are not affected by [this statute].”).
We have found numerous examples in foreign jurisdictions with similar applications
of savings clauses. See, e.g., La Porte v. State, 132 P. 563, 564–65 (Ariz. 1913) (noting
that “[t]he history of legislation . . . shows that . . . crime and penalties have been abolished,
changed, or modified after the commission of the offense and before trial in such material
way to effect many legislative pardons” and “many of the states have enacted general
saving statutes” to prevent “miscarriages of justice”); In re Estrada, 408 P.2d at 953
(“[W]here the amendatory statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the lighter punishment is
imposed.”); State v. Chrisman, 514 N.W.2d 57, 61–62 (Iowa 1994) (discussing Iowa’s
general savings statute that requires courts to apply ameliorative amendments at the time
of sentencing); Nassar v. Commonwealth, 171 N.E.2d 157, 160 (Mass. 1961) (recognizing
that the general savings statute abolished the doctrine of amelioration); People v. Schultz,
12
460 N.W.2d 505, 530–31 (Mich. 1990) (same); Ex parte Wilson, 48 S.W.2d 919, 920–21
(Mo. 1932) (same); People v. Oliver, 134 N.E.2d 197, 201 (N.Y. 1956) (explaining that
amelioration can be abrogated through savings clauses while declining to apply New
York’s general savings clause to a particular statute); State v. Pardon, 157 S.E.2d 698, 701
(N.C. 1967) (explaining that the amelioration doctrine is applied “absent a saving clause,
a manifest legislative intent to the contrary, or a constitutional prohibition”); Belt v. Turner,
479 P.2d 791, 793 (Utah 1979) (noting that a savings clause can abrogate the amelioration
doctrine, but rejecting the application of Utah’s general savings clause to a certain criminal
statute).
Other states have abrogated the amelioration doctrine through constitutional
provisions. See, e.g., N.M. Const. art IV, § 33 (“No person shall be exempt from
prosecution and punishment for any crime or offenses against any law of this state by
reason of the subsequent repeal of such law.”); Okla. Const. art. V, § 54 (“The repeal of a
statute shall not revive a statute previously repealed by such statute, nor shall such repeal
affect any accrued right, or penalty incurred, or proceedings begun by virtue of such
repealed statute.”). Georgia has even found that failing to apply a form of the amelioration
doctrine can constitute cruel and unusual punishment. Humphrey, 652 S.E.2d at 507. The
State has not cited, and we have not found, any case here or in any other jurisdiction where
the amelioration doctrine has been abrogated by administrative action or legislative
inaction.
But, we have held in other contexts that “a person is not to be deprived of his
common-law rights unless the intention to do so is clearly expressed” by the Legislature.
13
See McCourtie v. U.S. Steel Corp., 93 N.W.2d 552, 559 (Minn. 1958). Because the
amelioration doctrine is a common law rule, that doctrine can only be abrogated by express
declaration or indication in a n enacted statute. Indeed, we “do not presume that the
Legislature intends to abrogate or modify a common law rule except to the extent expressly
declared or indicated in [a] statute.” Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 73
(Minn. 2012); see, e.g. , Minn. Stat. § 604.02, subd. 1 (2020) (amending Minnesota’s
common law rule of joint and several liability for negligence claims); Minn. Stat. § 176.031
(2020) (eliminating common law remedies for work-related injuries); Minn. Stat.
§ 65B.51, subd. 3 (2020) (limiting the amount of noneconomic damages a plaintiff can
receive after a motor vehicle accident). Based on these principles, we hold that the phrase
“statement by the Legislature” in Kirby means an express declaration or clear indication of
the Legislature’s intent to abrogate the amelioration doctrine within an enacted statute.9
II.
Having defined what a “statement by the Legislature” is, we turn to the State’s
argument that the amelioration doctrine should not be applied to Robinette’s sentence in
this case. The State relies on two purported statements by the Legislature to argue that the
amelioration doctrine has been abrogated.

9 By enacted statute, we mean a statute that has been passed by both chambers of our
state’s Legislature and signed by the Governor. Minn. Const. art. IV, § 23. An enacted
statute would also include a statute that has been vetoed by the Governor, but the veto is
overridden by two-thirds of the Legislature. Id. In both instances, the Legislature has
clearly expressed its intent. We further note that any other definition of “statement by the
Legislature” would allow a common-law rule to be abrogated by non-binding legislative
action, such as a legislative proclamation or a bill that is vetoed by the Governor or by
administrative action outside the purview of the Legislature.
14
First, the State contends that Minnesota Sentencing Guideline 3.G.1 is, in essence,
a statement by the Legislature that abrogates the amelioration doctrine. This guideline
states that “[m]odifications to . . . the Minnesota Sentencing Guidelines . . . apply to
offenders whose date of offense is on or after the specified modification effective date.”
Minn. Sent. Guidelines 3.G.1 (emphasis added). Under the language of this guideline, the
2019 changes would not apply to Robinette’s offense because he committed the assaults
before the modifications to the sentencing guidelines were adopted.
Guideline 3.G.1 was initially adopted by the Commission in 1986 without
legislative action. Minn. Sent. Guidelines III.F (1986). 10 Although Guideline 3.G.1 has
been part of the Sentencing Guidelines for 34 years, it is not part of an enacted statute and
therefore is not a “statement by the Legislature” that can abrogate the amelioration
doctrine.11
Second, the State contends that commentary in the Commission’s 2019 Report to
the Legislature are also statements that abrogate the amelioration doctrine. The State points

10 The guideline has been renumbered but remains substantively the same. Initially, it
read “Modifications to the Minnesota Sentencing Guidelines and Commentary will be
applied to offenders whose date of adjudication of guilt is on or after the specified
modification effective date.” Minn. Sent. Guidelines III.F (1986).

11 We do not disagree with the dissent that the Commission has expressed its intent to
abrogate the amelioration doctrine in Guideline 3.G.1. We do, however, respectfully
disagree that the Commission is the appropriate body to abrogate the amelioration doctrine
when Kirby plainly requires a “statement by the Legislature.” 899 N.W.2d at 490.
Notably, the Legislature has not acted on the Commission’s recommendation to codify
Guideline 3.G.1 in Minn. Stat. § 244.09, subd. 11.

15
to several portions of the report that demonstrate the Commission’s intent to abrogate the
amelioration doctrine through proposed policy modifications . Comments in the report
refer to our decision in Kirby and state the Commission’s desire to avoid the application of
the amelioration doctrine.12
The report, however, is not part of the Sentencing Guidelines. It is, rather, a report
that the Commission must submit to the Legislature annually pursuant to state law to
document any modifications to the Guidelines made during the preceding 12 months and
all proposed modifications submitted to the Legislature that year. See Minn. Stat. § 244.09,
subd. 11. The report is therefore not a “statement by the Legislature” sufficient to abrogate
the amelioration doctrine. Accordingly, we agree with the court of appeals: Robinette is
entitled to relief under the amelioration doctrine. We therefore conclude that Robinette is
entitled to resentencing under the amelioration doctrine.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

12 The State specifically cites to three different provisions. The first is a background
provision that reads: “[u]nless the Legislature by law provides otherwise, these
modifications will take effect August 1, 2019, and will apply to crimes committed on or
after that date.” The second is a section referring to State v. Kirby that reads in relevant
part: “The Commission does not intend for the amelioration doctrine to apply to the 2019
Guidelines modifications.” Finally, the third is a provision in the appendix that reads:
“Each modification is intended to apply to offenders whose date or offense is on or after
August 1, 2019” with a corresponding citation to State v. Otto.

D-1
D I S S E N T
GILDEA, Chief Justice (dissenting).
The majority assumes without explanation that the amelioration doctrine applies to
modifications to the Minnesota Sentencing Guidelines (“Guidelines”) and then decides
whether there is a sufficient statement by the Legislature to abrogate the doctrine in this
case. Because the majority’s assumption frustrates the Legislature’s clear intent to delegate
authority to the Commission to promulgate the Guidelines, I would hold that the
amelioration doctrine does not apply in this case. In the alternative, even if the amelioration
doctrine could be applied, as a theoretical matter, to revisions to the Guidelines, I would
hold that the Commission has clearly expressed its intention to abrogate the doctrine. For
these reasons, I respectfully dissent.
I.
In State v. Kirby, we formally recognized the amelioration doctrine for the first time
and considered whether a defendant should be resentenced under the newly -enacted Drug
Sentencing Reform Act. 899 N.W.2d 485, 490 (Minn. 2017). We decided that the doctrine
“applies to ‘a statute mitigating punishment.’ ” Id. at 491 (quoting State v. Edstrom,
326 N.W.2d 10, 10 (Minn. 1982)). And ultimately, we held that “our rule of law is clear.
An amended statute applies to crimes committed before its effective date” when the three-
prong test is met. Id. at 490 (emphasis added). Specifically, “the amelioration doctrine
applies to legislation amending the sentencing grids with the same force as to laws
amending criminal statutes.” Id. at 491–92 (emphasis added).

D-2
The majorit y does not address whether there is any legislation here and instead
focuses solely on the three-prong test articulated in Kirby. In my view, the majority’s focus
is misplaced.1 Our precedent, including Kirby, has only applied the amelioration doctrine
to legislative action. Id. at 492 (collecting cases); State v. Coolidge, 282 N.W.2d 511, 512
(Minn. 1979) (repeal and replacement of a sodomy statute); State v. Hamilton, 289 N.W.2d
470, 474 (Minn. 1979) (same); Ani v. State , 288 N.W.2d 719, 720 (Minn. 1980) (same);
Edstrom, 326 N.W.2d at 10 (amendment to criminal sexual conduct statute). The cases we
relied on in Coolidge and Kirby also addressed statutory changes. See In re Estrada,
408 P.2d 948, 951 (Cal. 1965); People v. Rossi, 555 P.2d 1313, 1314 (Cal. 1976);
Commonwealth v. Wyman, 66 Mass. (12 Cush.) 237, 239 (Mass. 1853); People v. Hayes, 35 N.E. 951, 952–53 (N.Y. 1894).
The majority does not cite a single case in which the amelioration doctrine was
applied in the absence of legislation. In each of the cases cited by the majority, the
amelioration doctrine was applied in the context of amendments to criminal statutes. See
La Porte v. State, 132 P. 563, 564–65 (Ariz. 1913) (dealing with a statutory amendment);

1 As the majority notes, the State does not argue that the amelioration doctrine does
not apply. But the State did raise the argument before the court of appeals, stating in its
brief that “the amelioration doctrine employed in Kirby does not apply in this case.” The
question of the applicability of the doctrine is an important threshold legal question. We
have exercised our discretion in other cases to reach dispositive legal threshold issues even
though not presented by the parties. See, e.g., State v. Hannuksela, 452 N.W.2d 668, 673
n.7 (Minn. 1990) (stating the responsibility of the appellate courts is not to be “diluted by
counsel’s oversights, lack of research, failure to specify issues or cite relevant authorities.”
(citation omitted) (internal quotation marks omitted)). Because the State raised the
argument before the court of appeals and it is a dispositive threshold legal question, I would
address that issue here.

D-3
State v. Chrisman, 514 N.W.2d 57, 61–62 (Iowa 1994) (same); Nassar v. Commonwealth,
171 N.E.2d 157, 160 (Mass. 1961) (same); People v. Schultz, 460 N.W.2d 505, 507 (Mich.
1990) (same); Ex parte Wilson , 48 S.W.2d 919, 920 –21 (Mo. 1932) (same); People v.
Oliver, 134 N.E.2d 197, 199–201 (N.Y. 1956) (same); State v. Pardon, 157 S.E.2d 698,
700–01 (N.C. 1967) (same); Belt v. Turner, 479 P.2d 791, 792 (Utah 1979) (same). 2
In this case, the Legislature has not acted. This fact alone, in my view, is enough to
determine that the amelioration doctrine simply does not apply. After all, the “rationale”
for the application of the amelioration doctrine “is that the legislature has manifested its
belief that the prior punishment is too severe and a lighter sentence is sufficient. Nothing
would be accomplished by imposing a harsher punishment, in light of the legislative
pronouncement, other than vengeance.” Coolidge, 282 N.W.2d at 514–15 (emphasis
added) (citations omitted).
Modifications to the Guidelines, however, are different. In writing and modifying
the Guidelines, the Commission is to consider: “public safety,” “current sentencing and
release practices; correctional resources, including but not limited to the capacities of local
and state correctional facilities; and the long -term negative impact of the crime on the
community.” Minn. Stat. § 244.09, subd. 5 (2020). Accordingly, the purpose behind the
amelioration doctrine is not served by its application to modifications of the Guidelines.

2 The parties and the majority do not cite, and I was unable to find, a case in which
the amelioration doctrine was applied to modifications to federal or state criminal
sentencing guidelines.

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The majority’s analysis plows ahead to apply Kirby without addressing the very real
distinction between statutory changes and revisions to the Guidelines. The majority begins
by searching for a “statement by the Legislature” and because it can find no such statement,
the majority concludes that the amelioration doctrine applies and has not been abrogated.
But the majority’s search was doomed from the start. Of course there is no such statement.
As the majority states, the modif ication in this case was passed through “legislative
inaction.” Supra at 12 (emphasis added). By determining (without explanation) that the
amelioration doctrine applies even when the Legislature has not spoken, and then
determining that the amelioration doctrine may be abrogated only when the Legislature has
spoken, the majority creates a circular test that always yields the same answer:
amelioration applies.
I disagree. I would hold that the amelioration doctrine does not apply to the
Commission’s revisions of the Guidelines.
II.
In the alternative, even if the amelioration doctrine applies to a non-legislative act
such as the Commission’s modification to the Guidelines, I would conclude that the
Legislature has delegated the authority to abrogate the doctrine to the Commission and in
this case, the Commission clearly expressed its intention to abrogate the doctrine.
I begin by discussing our precedent on delegation generally and then turn to the
majority’s implicit suggestion that the modification of the Guidelines is a “purely
legislative power” that may not be delegated to the Commission. See Lee v. Delmont,
36 N.W.2d 530, 538 (Minn. 1949). Finally, I explain how the Commission, in exercising

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its delegated authority from the Legislature, has clearly decided to abrogate the
amelioration doctrine in this case.
A.
The Minnesota Constitution demands that governmental power be separated into
legislative, executive, and judicial branches. Minn. Const. art. III, § 1. In Lee, we
explained that Article III of the Minnesota Constitution prohibits a delegation of “purely
legislative power.” 36 N.W.2d at 538. By “purely legislative power” we meant “the
authority to make a complete law,” including the ability to determine when that law takes
effect. Id. Powers that are not “purely legislative” may properly be delegated when the
Legislature “cannot conveniently or advantageously” exercise that power itself. Id.
In distinguishing between proper and improper delegations of power, we have said
that “[t]he true distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and the conferring of authority or
discretion to be exercised under and in pursuance of the law.” State v. Great N. Ry. Co.,
111 N.W. 289, 293 ( Minn. 1907) (citation omitted) (internal quotation marks omitted) .
That is, the Legislature may “leav[e] to selected instrumentalities the making of
subordinate rules within prescribed limits.” Panama Refin. Co. v. Ryan, 293 U.S. 388, 421
(1935). And the limits constraining those instrumentalities “may be laid down in very
broad and general terms.” Lee , 36 N.W.2d at 539. At most, courts have required some
“intelligible principle” to be put in place to guide the application of delegated power. J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

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In short, the Minnesota Constitution prohibits the Legislature from delegating the
ability to “make a complete law.” That type of power is exclusively mandated to the
Legislature. Lee v. Delmont, 36 N.W.2d 530, 538 (Minn. 1949) (“It is elementary that the
legislature – except where expressly authorized by the constitution, as in the case of
municipalities – cannot delegate purely legislative power to any other body, person, board,
or commission”). But other powers may be so delegated, provided that the Legislature puts
in place “intelligible principle[s]” to guide their application. J.W. Hampton, 276 U.S. at
409.
B.
Applying these principles here, the Legislature’s delegation of power to the
Commission to promulgate and modify the Guidelines is clearly proper.
The Legislature established the Commission in 1978 with instructions to promulgate
the Guidelines. See Act of Apr. 5, 1978, ch. 723, art. I, §§ 1–11, 1978 Minn. Laws 761,
761–68 (codified as amended at Minn. Stat. §§ 244.01 –11 (2020)). Specifically, it
instructed the Commission to promulgate rules that “establish: (1) the circumstances under
which imprisonment of an offender is proper; and (2) a presumptive, fixed sentence for
offenders for whom imprisonment is proper .” Minn. Stat. § 244.09, subd. 5. And in
subdivision 11 of the same statute, the Legislature gave the Commission the authority to
modify the Guidelines, and specified that such modifications will be effective on August 1
of the year in which they are proposed “unless the legislature by law provides otherwise.”
By delegating the power to “promulgate” and “modify” the Guidelines, the authority
to abrogate the amelioration doctrine is also transferred to the Commission. And this

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delegation, contrary to the majority’s suggestion otherwise, is proper because: (1) criminal
sentencing is not purely legislative; (2) the Legislature provided intelligible principles by
which the Commission promulgates the Guidelines; and (3) the Legislature has reserved
for itself a veto power.
At root, the amelioration doctrine is about criminal sentencing. Criminal sentencing
is not a power exclusively held by the Legislature. Far from it. Sentencing is often left to
the discretion of the district court, provided that the sentence imposed does not exceed
statutory maximums established by the Legislature. See State v. Warren, 592 N.W.2d 440,
451 (Minn. 1999) (“Sentencing is within the discretion of the trial court absent an abuse of
discretion.”). Indeed, we have flatly stated that “[t]he imposition of the sentence within
the limits prescribed by the legislature is purely a judicial function.” State v. Olson,
325 N.W.2d 13, 18 (Minn. 1982).
The Guidelines do not alter the “limits prescribed by the legislature.” Id. Instead,
they curtail the discretion of district courts in sentencing defendants within those statutory
limits. See State v. Shattuck, 704 N.W.2d 131, 139 (Minn. 2005), as amended on reh’g in
part (Minn. Oct. 6, 2005). By constraining the discretion of district courts in sentencing—
thereby affecting a “purely . . . judicial” function, see Olson, 325 N.W.2d at 18 —the
Guidelines clearly do not implicate power that is purely legislative. Instead, the
Legislature’s delegation of authority to the Commission to promulgate the Guidelines is
the mere conferral of “discretion to be exercised under” the statutory maximum sentences
established by the Legislature. Great N. Ry. Co., 111 N.W. at 293 (citation omitted)
(internal quotation marks omitted).

D-8
The Legislature provided intelligible principles to guide the Commission. For
instance, Minn. Stat. § 244.09, subd. 5, reads:
In establishing and modifying the Sentencing Guidelines, the primary
consideration of the commission sha ll be public safety. The commission
shall also consider current sentencing and release practices; correctional
resources, including but not limited to the capacities of local and state
correctional facilities; and the long-term negative impact of the crime on the
community.

The level of specificity provided here is similar to that found in other delegations of power
that we have found to be proper. See, e.g., Lee, 36 N.W.23 at 538–39; No Power Line, Inc.
v. Minn. Env’t Quality Council, 262 N.W.2d 312, 330 (Minn. 1977).
In addition, the Legislature has expressly reserved for itself the power to veto
modifications to the Guidelines when they are proposed by the Commission. Minn. Stat.
§ 244.09, subd. 11. O verall, it is safe to say that the Legislature’s delegation of authority
to the Commission to promulgate and modify the Guidelines does not violate the Minnesota
Constitution.
This result is consistent with federal precedent. Mistretta v. United States, 488 U.S.
361, 371 (1989) (holding that Congress did not violate the non-delegation doctrine when it
delegated to the federal Sentencing Commission “the power to promulgate sentencing
guidelines for every federal criminal offense”); see also United States v. Anderson,
686 F.3d 585, 590 (8th Cir. 2012) (holding that the Federal Sentencing Commission’s

D-9
passing of a policy statement to U.S.S.G. § 1B1.10 did not violate the non- delegation
doctrine).3
Ultimately, I would conclude that—in the context of a modification to the
Guidelines without legislative action— the Legislature has delegated the ability to abrogate
the amelioration doctrine to the Commission.
C.
Finally, I explain how the Commission abrogated the amelioration doctrine in this
case.
In its 2019 report, t he Commission eliminated Guideline 2.B.2.a. (4), which
mandated the addition of one criminal history point to the calculation of the criminal
history score for certain defendants. Using the adapted Kirby test, the modification to the
Guidelines applies to a crime committed before the effective date of the modification if:
(1) there is no statement by the Commission that clearly establishes its intent to abrogate
the amelioration doctrine, (2) the modification mitigates punishment, and (3) the
conviction was not final on the date that the modification to the sentencing guidelines took
effect. See Kirby, 899 N.W.2d at 503.
The parties agree that the second and third parts of the Kirby test are satisfied in this
case. I agree. When Robinette was sentenced in February 2019, one point was assigned

3 While “[t]he Federal Sentencing Guidelines system is a complex one that differs
significantly from Minnesota’s,” Shattuck, 704 N.W.2d at 147, we have repeatedly relied
on cases interpreting the Federal Sentencing Guidelines when interpreting the Minnesota
Sentencing Guidelines. See id. at 142; see also Williams v. State, 910 N.W.2d 736, 742
(Minn. 2018) (“When a Minnesota rule is modeled after a federal rule, federal cases are
instructive in the interpretation of the corresponding Minnesota rule.”).

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to his criminal history score based on the application of Guideline 2.B.2.a(4), which
mandated the assignment of one point if an offender had been discharged from probation
but committed a new offense within the initial period of probation announced by the district
court. See Minn. Sent. Guidelines 2.B.2.a( 4) (2018). The district court imposed a
presumptive sentence of 168 months in prison based on Robinette’s criminal history score,
including the point mandated by Guideline 2.B.2.a(4). Robinette appealed his conviction
and sentence. On August 1, 2019, while his appeal was pending, the Commission’s
modification to the sentencing guidelines went into effect and Guideline 2.B.2.a(4) was
eliminated. With one fewer point in his criminal history score, the presumptive sentence
for Robinette would have been 156 months. Thus, the modification mitigated Robinette’s
punishment and became effective before his conviction was final.
The open question is whether the first part of the Kirby test is satisfied. The parties
dispute this question but fail to identify the correct premise. The question is not whether
the Legislature has made a statement that clearly abrogates the amelioration doctrine. As
noted above, the Legislature is not the actor in this case because it has delegated its
authority to speak to the Commission. The question is whether there is a statement by the
Commission that clearly establishes its intent to abrogate the amelioration doctrine. And
there is such a statement.
There is no question that Guideline 3.G.1 is a statement by the Commission.
Guideline 3.G.1 reads: “[m]odifications to sections 1 through 8 of the Minnesota
Sentencing Guidelines and associated commentary and appendices, apply to offenders
whose date of offense is on or after the specified modification effective date.” See Minn.

D-11
Sent. Guidelines 3.G.1 (2020). This constitutes a statement by the Commission that clearly
establishes its intent to abrogate the amelioration doctrine. See Kirby , 899 N.W.2d at 488
(discussing other statutes that included “crimes committed on or after [the effective] date”
language). As noted by the majority, Guideline 3.G.1 was initially enacted by the
Commission in 1986. See Minn. Sent. Guidelines III.F (1986). Guideline 3.G.1 has been
a part of the sentencing guidelines for 34 years and has gone through some language
modifications.
4 The majority is wrong to cast aside Guideline 3.G.1 based on a flawed
application of Kirby.5
Because Guideline 3.G.1 constitutes a statement by the Commission that clearly
establishes its intent to abrogate the amelioration doctrine, the first part of the modified
Kirby test is not satisfied in this case. Thus, the amelioration doctrine should not be applied
to Robinette’s sentence, and he should not receive the benefit of the 2019 modification to

4 Initially, the guideline read: “[m]odifications to the Minnesota Sentencing
Guidelines and Commentary will be applied to offenders whose date of adjudication of
guilt is on or after the specified modification effective date.” Minn. Sent. Guidelines III.F
(1986). The guideline was subsequently changed to read: “[m]odifications to the
Minnesota Sentencing Guidelines will be applied to offenders whose date of offense is on
or after the specified modification effective date. Modifications to the Commentary will
be applied to offenders sentenced on or after the specified effective date.” Minn. Sent.
Guidelines III.F (1987). The guideline was renumbered from III.F to 3.G. Minn. Sent.
Guidelines 3.G (2010). And in 2019, the guideline was modified to its current form.

5 I am not suggesting that if a statute is enacted, modified, or repealed by the
Legislature, Guideline 3.G.1. controls. In such a situation, the Kirby test would be applied
to the Legislature as the actor and the statutory change as the action. The question in that
context would be whether the Legislature has made a statement that clearly establishes its
intent to abrogate the amelioration doctrine when it enacts, modifies, or repeals a statute.

D-12
the sentencing guidelines that eliminated Guideline 2.B.2.a(4). Accordingly, I would
reverse the decision of the court of appeals.