Offenders Whose Convictions Were Not Final on Effective Date of Drug Sentencing Reform Act Get Benefit of Reduced Guidelines Sentencing Ranges

State v. Kirby, Minn.S.Ct., 7/26/2017.  The trial court imposed a presumptive Guidelines sentence of 161 months for Mr. Kirby's conviction of first degree possession of methamphetamine.  The legislature then enacted, and the governor signed, the Drug Sentencing Reform Act (DSRA).  The pertinent part of that Act for Mr. Kirby is that it reduced the presumptive Guidelines sentencing range for his offense.  Mr. Kirby said that he should be re-sentenced under this reduced Guidelines range. In a 4-3 Opinion, Justice Lillehaug agreed.  Justice G. Barry Anderson dissented, joined by Chief Justice Gildea and Justice Stras.

The DSRA said that it applied "to crimes committed on or after [it's effective date]."  Significantly, it did not say something like, "Crimes committed prior to the effective date of this act are not affected by its provisions."  Justice Lillehaug said that a statement to that effect would abrogate what's called "the amelioration doctrine," which says that an offender whose conviction is not yet final gets the benefit of a statute that reduces punishment for the offender's crime.  

Prior cases establish that the amelioration doctrine applies when:

(1) there is no statement by the Legislature that clearly establishes the Legislature’s 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. 

The state took aim at the first requirement; it threw up a multitude of reasons to support its assertion that the DSRA had abrogated the doctrine.  Justice Lillehaug rejects them all.  The most cogent reason, which is what the dissenters latched onto, are two provisions in the Sentencing Guidelines.  Both of them have been there forever.  The first one says that "The presumptive sentence . . . is determined by the Sentencing Guidelines in effect on the date of the conviction offense . . . . Minn. Sent. Guidelines 2."  Justice Lillehaug concludes, seemingly out of thin air, that this is only a reference to ex post facto, which prohibits a judge from sentencing a defendant under a law that increased punishment from what the punishment was at the time of the offense.  The other Guidelines provision that the state and dissenters pointed to says that policy modifications to the Guidelines apply to offenders whose date of offense is on or after the specified modification date.  Justice Lillehaug decides that policy changes don't include the sentencing Grid.