Terry Lee Clauthier, 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This opinion will be unpublished and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
A19-1435

Terry Lee Clauthier, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 8, 2020
Affirmed
Cochran, Judge

Polk County District Court
File No. 60-CR-15-2213

Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie M. Willett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Fi rst Assistant Co unty Attorney,
Crookston, Minnesota (for respondent)

Considered and decided by Segal, Chief Ju dge; Ross, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Terry Lee Clauthier appeals fro m the district court’s denial of his
postconviction petition as untimely under Minn. Stat. § 590.01, subd. 4(a)(1) (2014). He
argues that the district court was obligated to grant his petition under the law-of-the-case

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doctrine and that his petition wa s timely under an exception to the general two-year time
limit to file a postconviction petition. Because the law-of-the-case doctrine does not apply,
and because Clauthier does not articulate an argument as to why his petition fits under an
exception to the general time limit, we affirm.
FACTS
The state charged appellant Terry Lee Clauthier with first-degree
controlled-substance crime under Minn. Stat. § 152.021, subd. 2(a )(1) (2014) for an
incident occurring on December 9, 2015. Clauthier negotiated a plea deal with the state
that called for him to plead guilty as ch arged and receive a “presumptive guidelines
sentence.” A written summary of the plea ne gotiation, submitted with Clauthier’s plea
petition, indicated that the severity level of th e offense at that time was nine, and that it
was assumed that Clauthier’s cr iminal-history score was at least six and that he would
therefore likely receive a sentence of 158 months. The negotiation also contemplated that
if Clauthier failed to remain law-abiding pe nding sentencing, the state could argue for a
sentence that was longer than the presumptive sentence.
By the sentencing hearing on May 10, 2016 , it was determined that Clauthier had a
criminal-history score of 12 and that, under th e sentencing guidelines that existed at that
time, the presumptive sentence for Clauthier’s offense was 161 months. But Clauthier
failed to remain law-abiding pending sentencing. Consequently, at the sentencing hearing,
the parties indicated that they had entered into a “revised agreement” that Clauthier would
receive a sentence of 164 months—three months more than the presumptive sentence under
the guidelines, but still within the range of presumptive sentences. The district court

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sentenced Clauthier in accordanc e with the revised agreement. Clauthier did not appeal
his conviction or sentence.
On May 23, 2016, a provision of the Minnesota Drug Sentencing Reform Act
(DSRA) that reduced the presumptiv e sentencing range for first-degree
controlled-substance crimes took effect. See State v. Kirby , 899 N.W.2d 485, 488
(Minn. 2017). On July 26, 2017, the supreme court held that, under the amelioration
doctrine, this DSRA sentencing provision was applicable to any case that was not yet final
when the provision took effect. Id. at 496. In Minnesota, a conviction is deemed “final”
for purposes of the amelioration doctrine when the 90-day period to appeal lapses.
Luna-Pliego v. State, 904 N.W.2d 916, 919-20 (Minn. App. 2017). Clauthier’s conviction
and sentence was not “final” when the DSRA sentencing provision took effect because the
90-day period to appeal had not yet expire d on May 23, 2016. Under the new DSRA
guidelines, Clauthier’s presumptive sentence would have been 128 months.
On June 1, 2018, Clauthie r filed a motion to correct his sentence under Minn. R.
Crim. P. 27.03, subd. 9. He requested that the district court reduce his sentence to
131 months in accordance with the DSRA provision and Kirby. He argued that the “revised
agreement” called for a sentence that was th ree months above the presumptive guidelines
sentence, and that he therefore should have received a 131-month sentence.
The district court denied Clauthier’s motion to correct his sentence in an order dated
November 25, 2018. In the memorandum attached to its order, the district court concluded
that Clauthier’s motion implicat ed more than just his senten ce because it affected the
revised agreement the parties reached at sentencing, and that it was therefore inappropriate

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to “unilaterally” change Clauthier’s sentence. In reaching its conclusion, the district court
relied on State v. Montermini, 819 N.W.2d 447 (Minn. App. 2012), review denied (Minn.
Nov. 20, 2012). The district court also concluded that Kirby did not require it to modify
Clauthier’s sentence. The district court then indicated that Clauthier may have another
avenue for relief based on Montermini, namely withdrawing his plea. The district court
stated: “the [c]ourt finds that the Defendant is entitled to relief under Montermini. If he so
chooses, the Defendant may seek to withdraw his guilty plea, which, if granted, would
place both parties back in their original pre-plea positions, albeit under DSRA’s modified
sentencing guidelines.” Clau thier did not appeal the deni al of his motion to correct
sentence.
Instead, on February 22, 2019, Clauthier filed a petiti on for postconviction relief
seeking to withdraw his guilty plea. The state opposed the postconviction petition and
asserted that it was untimely because it was f iled more than two year s after the entry of
judgment of conviction or sentence. See Minn. Stat. § 590.01, subd. 4(a)(1) (providing that
“[n]o petition for postconviction relief may be filed more than two years after the later of
the entry of judgment of conviction or sentence if no direct appeal is filed”). In response,
Clauthier asserted that an exception to the two-year time limit applied 1 and that his claim
was timely under the exception because it was brought within two years of the Kirby
decision. The district cour t concluded that the petition wa s untimely and dismissed the
petition.

1 See Minn. Stat. § 590.01, subd. 4(b)(3) (2014), discussed in more detail below.

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Clauthier appeals the denial of his postconviction petition.
D E C I S I O N
Clauthier argues that the district court wa s obligated to rule in his favor on the
postconviction petition under the law-of-the-case doctrine, based on the district court’s
statement that he was “entitled to relief under Montermini.” He also argues that, although
his petition was not brought with in two years of the entry of judgment of conviction, the
petition fell under an exception to the two-year limit and was timely filed within two years
of Kirby. We address each argument in turn, but first we address the appropriate standard
of review.
I. Standard of Review
Appellate courts review the denial of a postconviction petition for an abuse of
discretion. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015 ). “We review legal issues
de novo, but on factual issues our review is limited to whether there is sufficient evidence
in the record to sustain the postconviction court’s findings.” Id. (quotation omitted). “We
will not reverse an order unless the postconvi ction court exercised its discretion in an
arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made
clearly erroneous factual findings.” Id. (quotation omitted).
II. The law-of-the-case doctri ne did not bind the dist rict court to rule in
Clauthier’s favor on the issue of timeliness.

Clauthier first argues that the district court was bound by the law-of-the-case
doctrine to allow him to withdraw his plea. The law-of-the-case doctrine provides that
“when a court decides upon a rule of law, that decision should continue to govern the same

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issues in subsequent stag es in the same case.” In re Matter of Welfare of M.D.O. ,
462 N.W.2d 370, 375 (Minn. 1990) (emphasis omitted) (quotation omitted). “The doctrine
of ‘law of the case’ is based on a policy requiring issues onc e fully litigated to be set at
rest.” Sylvester Bros. Dev. Co. v. Great. Cent. Ins. Co. , 503 N.W.2d 793, 795 (Minn.
App. 1993), review denied (Minn. Sept. 30, 1993).
Clauthier’s law-of-the-case argument is not persuasive for two reasons. First, the
district court did not make a decision regarding the timeliness of a postconviction petition
when it denied Clauthier’s motion to correct sentence. Timeliness was not at issue because
a motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9, can be brought at any
time. And Clauthier had not yet filed a po stconviction petition. Second, although the
district court indicated that Clauthier was substantively entitled to relief under
Montermini,2 the district court was equivocal as to whether it would actually grant a
postconviction petition to withdraw a plea. It indicated that Clauthier “may seek” to
withdraw his guilty plea via postconviction petition, and that a petition to withdraw a plea
“if granted” would place the parties in their pre-plea positions. We are not convinced that
the district court’s equivocal statements on the merits of a hypot hetical postconviction
petition bound the district court under the law- of-the-case doctrine. Thus, we conclude
that the district court did not abuse its discretion by denying th e postconviction petition
despite the indication in its prior memorandum.

2 We express no opinion on th e district court’s decision to deny Clauthie r’s motion to
correct sentence or its indication that Clauthier was entitled to relief under Montermini.

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III. Clauthier has not demonstrated that an exception to the timeliness
requirement of Minn. Stat. § 590.01, subd. 4(a)(1) applies.

Clauthier next argues that the district court erred in determining that his
postconviction petition was untimely. A postconviction petition must be filed within two
years of the entry of judgment of conviction or sentence if no direct appeal is filed, subject
to certain specified exceptions. Minn. Stat. § 590.01, subd. 4 (2014). The district court
sentenced Clauthier on May 10, 2016 and he did not file a direct appeal. Thus, Clauthier’s
two-year time limit to bring a petition for po stconviction relief expired on May 10, 2018.
But Clauthier did not file his postconvi ction petition until February 22, 2019. A
postconviction court may summarily de ny a claim that is untimely. Jackson v. State ,
929 N.W.2d 903, 905 (Minn. 2019).
Clauthier recognizes that his postconviction petition was filed more than two years
after sentencing, but argues that an exception to the usual rule applies. He points to the
exception that allows a petitioner to bring a petition for postconviction relief if he “asserts
a new interpretation of federal or state constitutional or statutory law by either the United
States Supreme Court or a Minnesota appellate court and the petitioner establishes that this
interpretation is retroactively applicable to the petitioner’s case.” Minn. Stat. § 590.01,
subd. 4(b)(3). A petition invoking this excep tion “must be filed within two years of the
date the claim arises.” Id., subd. 4(c) (2014). The petitioner bears the burden of proving
that an exception to the two-year time limit applies. Wayne v. State, 912 N.W.2d 633, 640
(Minn. 2018).

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Clauthier asserts that, although his pos tconviction petition is untimely under the
general rule, the district court should ha ve reviewed it under the new-interpretation
exception because he filed his petition within two years of the Kirby decision. But Kirby
expressly emphasized that the opinion was not about retroactivity. 899 N.W.2d at 488.
And Clauthier offers no argument or case law to support that Kirby applies retroactively to
his case on collateral review. A party waives review of an issue if his or her brief contains
no argument or citation to legal authority to support an assertion. See State v. Ture ,
632 N.W.2d 621, 632 (Minn. 2001) (deeming a claim waived where the appellant failed to
provide any authority or argument to support it). Because the exception only applies where
the petitioner has established that the new “interpretation is retroactively applicable to the
petitioner’s case” and Clauthier has failed to articulate a reason why Kirby applies
retroactively to his case, we conclude that Clauthier has failed to meet his burden to
establish that an exception applies. Alternativ ely, we conclude that Clauthier has waived
the issue on appeal.
In sum, we conclude that the district c ourt did not abuse its discretion in denying
Clauthier’s postconviction petition.
Affirmed.