This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






John Frederick Kier, petitioner,


State of Minnesota,


Filed December 26, 2006


Stoneburner, Judge


Polk County District Court

File No. KX021191


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Gregory A. Widseth, Polk County Attorney, Suite 101, 223 East Seventh Street, Crookston, MN 56716 (for respondent)


            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            On remand from the supreme court for reconsideration of appellant’s challenge to denial of his petition for postconviction sentencing relief, appellant argues that he should not be subjected to mandatory consecutive sentencing under Minn. Stat. 169A. 28 (2004).  We affirm.



            Appellant John Kier was convicted of felony refusal to test and gross-misdemeanor driving after cancellation.  Based on a criminal-history score of five, he was sentenced to 66 months, executed, for felony refusal and a consecutive 12 months for driving after cancellation.  On direct appeal, this court affirmed his convictions and sentences.  State v. Kier, 678 N.W.2d 672 (Minn. App. 2004), review denied (Minn. June 15, 2004).

            Kier later filed a postconviction petition seeking correction of his sentence.  This court reversed and remanded, concluding that (1) the gross-misdemeanor driving after cancellation should have been sentenced first because it occurred first; (2) the consecutive felony sentence should have been based on a criminal-history score of one; and (3) because the resulting consecutive sentence, as corrected, was less than concurrent sentencing would have produced, the correct sentence under the Minnesota guidelines was a concurrent sentence, with the felony sentence to be calculated based on a criminal-history score of five.  Kier v. State, No. A05-1108 (Minn. App. Mar. 28, 2006), review granted and stayed (Minn. June 20, 2006) (stayed pending decision in State v. Holmes, A04-1134, which presented an almost identical fact situation). 

            In State v. Holmes, the supreme court held that the reduction of the criminal-history score for presumptive consecutive sentences, as provided by Minnesota Sentencing Guidelines II.F, does not apply to the mandatory consecutive sentences for repeat DWI offenses required by Minn. Stat. § 169A.28 (2004).  719 N.W.2d 904, 909 (Minn. 2006).  The supreme court vacated this court’s opinion in Kier and remanded for consideration of the appeal in light of Holmes.



            The state argues that Kier’s request for sentencing relief is procedurally barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976) (holding that a postconviction court will not consider matters that were either raised in a direct appeal or known at the time of direct appeal and not raised).  But a court may correct an illegal sentence at any time.  Minn. R. Crim. P. 27.03, subd. 9.  In the interest of justice, we review Kier’s claim on the merits.

            Kier does not dispute the application of the provisions of Minn. Stat. § 169A.28, requiring consecutive sentences for certain DWI and DWI-related offenses:  Kier was convicted of felony first-degree driving while impaired-refusal and driving after cancellation in the same behavioral incident and, at the time of these convictions, he had five or more prior qualifying incidents.  Kier argues that the district court erred by imposing the sentence for felony refusal consecutively to the sentence for driving after cancellation, which occurred prior to the test refusal, and erred by failing to reduce his criminal-history score to one to calculate the consecutive felony sentence, as required by Minn. Sent. Guidelines II. F.

            “Statutory construction and interpretation of the sentencing guidelines are subject to de novo review by this court.”  State v. Holmes, 719 N.W.2d 914, 907 (Minn. 2006) (citation omitted).  Holmes makes it clear that the criminal-history score reduction mandated in Minn. Sent. Guidelines II.F does not apply to consecutive sentences under Minn. Stat.  169A.28. 909.  Therefore, while Kier is correct that his felony sentence should have been imposed consecutively to the gross-misdemeanor sentence, under Holmes, the district court correctly calculated the length of the felony sentence based on Kier’s criminal-history score of five.

            Kier argues that his situation is distinguishable from Holmes because Kier’s consecutive sentences were imposed under Minn. Stat. § 169A.28, subd. 1(3), for offenses that were part of the same course of conduct, while the consecutive sentences in Holmes were imposed under subdivision 1(2), for offenses that were part of separate courses of conduct.  We disagree.  Minn. Stat. § 609.035 (2004), which generally prohibits multiple sentences for one behavioral incident, contains an exception for DWI and DWI-related offenses committed by repeat DWI offenders.  And Holmes does not mandate any distinction between these subdivisions of Minn. Stat. § 169A.28.

            Kier also argues that it is possible for mandatory consecutive sentencing under Minn. Stat. § 169.28 to result in an excessive sentence.  But Kier has failed to demonstrate that his sentence is excessive, and the mere possibility that a sentence could be excessive under the statute is irrelevant to determination of the validity of Kier’s sentence.

            Finally, Kier argues that a 2006 amendment to Minn. Stat. § 169.28, which took effect in June 2006 and limits the sentencing exposure of felony DWI defendants, should apply to his 2003 sentence, at least on equitable grounds.  We disagree.  There is no statutory authority for retroactive application of the 2006 amendment.  Cf. Minn Stat.      § 590.01, subd. 3 (providing for retroactive application of laws to pre-1980 offenses).  And the mandatory-consecutive-sentencing provision adds only 12 months to Kier’s aggregate sentence.  We therefore conclude that Kier has not demonstrated that retroactive application of the amendment is necessary to prevent an injustice in his case.

            Because under the facts of this case the erroneous order of sentencing Kier’s gross-misdemeanor offense consecutively to his felony offense has no practical effect, the error was harmless, and the district court did not abuse its discretion in denying Kier’s petition for postconviction relief.