This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Miguel Margarito Salazar Mendoza,



Filed June 19, 2007

Reversed and remanded

Kalitowski, Judge


Dakota County District Court

File Nos. K0-06-1756, K1-02-3684


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


James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)


John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and


Patricia Phill, Assistant Public Defender, 919 Vermillion Street, Suite 200, Hastings, MN 55033 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant state challenges the district court’s imposition of concurrent sentences on respondent following his convictions of two counts of first-degree DWI, arguing that Minn. Stat. § 169A.28, subd. 1 (2004),  mandates consecutive sentences.  We reverse and remand.


Respondent Miguel Margarito Salazar Mendoza was charged with two separate first-degree DWI offenses, occurring in 2002 and 2006, and he pleaded guilty to both charges.  Respondent argued for concurrent sentences, while appellant state argued for consecutive sentences pursuant to Minn. Stat. § 169A.28 (2004).  The district court sentenced respondent concurrently to 36 months stayed and 7 years probation for the 2002 offense and 42 months stayed and 7 years probation for the 2006 offense, explaining:  “The Court is taking the position that it would be appropriate to sentence concurrently.  The statute is inconsistent and therefore I think that it’s appropriate that he be sentenced concurrently.” 

Appellant argues that the district court erred by imposing concurrent sentences on two first-degree DWI convictions arising out of separate courses of conduct.  Statutory construction and interpretation of the sentencing guidelines are subject to de novo review on appeal.  State v. Zeimet, 696 N.W.2d 791, 793 (Minn. 2005).  A reviewing court must give effect to a statute’s plain meaning if the statute’s language is clear and unambiguous.  State v. Bluhm, 676 N.W.2d 649, 651 (Minn. 2004); State v. Furman, 609 N.W.2d 5, 6 (Minn. App. 2000).  “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”  Minn. Stat. § 645.16 (2006).

            The state relies on Minn. Stat. § 169A.28, subd. 1, which states in relevant part:  “The court shall impose consecutive sentences when it sentences a person for:  (1) violations of section 169A.20 (driving while impaired) arising out of separate courses of conduct.”  (Emphasis added.)  The canons of statutory construction provide that “shall” is mandatory.  Minn. Stat. § 645.44, subd. 16 (2006); State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  The Minnesota Supreme Court has held that “[t]he statutory mandate of section 169A.28, subdivision 1, is straightforward:  a court shall impose consecutive sentences for qualifying DWI convictions.”  State v. Holmes, 719 N.W.2d 904, 909 (Minn. 2006) (citing Minn. Stat. § 169A.28, subd. 1 (2004)).

Here, the district court sentenced respondent for two DWI offenses that occurred in September 2002 and May 2006, in violation of Minn. Stat. §§ 169A.20, .24 (2002 & 2004).  It is undisputed that these two DWI offenses arose out of separate courses of conduct.  Thus, under the plain language of the statute, the district court did not have discretion to sentence respondent concurrently. 

Respondent argues that the district court did not err in sentencing because in 2006 the legislature amended the statute by enacting section 169A.28, subdivision 1(b), as an exception to the general requirement of subdivision 1.  2006 Minn. Laws ch. 260, art. 2, § 4, at 735; Minn. Stat. § 169A.28, subd. 1(b) (2006).  The amendment, which was enacted on June 1, 2006, and became effective on June 2, 2006, states that “[t]he requirement for consecutive sentencing in paragraph (a) does not apply if the person is being sentenced to an executed prison term for a violation of section 169A.20 (driving while impaired) under circumstances described in section 169A.24 (first-degree driving while impaired).”  Minn. Stat. § 169A.28, subd. 1(b) (emphasis added).  The legislature provided that the amendment is “effective the day following final enactment.”  2006 Minn. Laws ch. 260, art. 2, § 4, at 735.  The amendment does not specify whether it applies to sentences for offenses committed before the effective date.  Id. Respondent’s offenses occurred in 2002 and in May 2006, before the effective date of the amendment, but respondent argues that the amendment applies to his case pursuant to the Minnesota Supreme Court’s holding in State v. Coolidge, that “a statute mitigating punishment is applied to acts committed before its effective date, as long as no final judgment has been reached.”  282 N.W.2d 511, 514 (Minn. 1979). 

Assuming, but not deciding that the amendment applies to respondent’s offenses, the amendment does not apply to the circumstancesof respondent’s case because respondent’s sentences were not executed for either of his offenses; the district court stayed both sentences.  And we reject respondent’s argument that the amendment is ambiguous and that it is necessary to look to the intent of the legislature to determine its appropriate meaning.  The clear and unambiguous language of the amendment states that it only applies to “executed prison term[s].”  Minn. Stat. § 169A.28, subd. 1(b); see also Furman, 609 N.W.2d at 6 (stating that a reviewing court must give effect to a statute’s plain meaning if the statute’s language is clear and unambiguous).

We conclude that the district court erred by sentencing respondent to concurrent sentences and reverse and remand for sentencing consistent with this opinion.

Reversed and remanded.