This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Wesley Richard Eckdahl, petitioner,
Ramsey County District Court
File No. K1-04-1912
John M. Stuart,
State Public Defender, Richard Schmitz, Assistant Public Defender,
Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying his postconviction motion to correct a 2004 sentence for first-degree DWI, appellant argues that under State v. Zeimet, 696 N.W.2d 791 (Minn. 2005), the district court erred in failing to correct his sentence. He argues that his 1996 impaired driving-related loss of license cannot be used as a qualified prior impaired driving incident to enhance his current offense because he had three criminal convictions for DWI that must be used first as prior qualified impaired incidents to enhance the charge. Appellant also contends that his 1994 Utah DWI cannot be used as a qualified impaired driving incident for purposes of enhancing the charge on his current DWI because that plea was uncounseled. We conclude appellant’s case was final before Zeimet was decided; he is not entitled to relief under the new rule announced in that case. We affirm.
In May 2004, appellant Wesley Eckdahl was charged with first-degree driving while impaired (DWI). After appellant pleaded guilty to the charged offense in July 2004, a pre-sentence investigation (PSI) was conducted. According to the PSI, appellant had the following alcohol-related driving incidents on his record within ten years of May 2004:
June 12, 1994, DWI, Cedar,
August 13, 1996, impaired
driving-related loss of license,
July 17, 2001, DWI,
August 14, 2001, DWI,
January 1, 2002, DWI,
Appellant also had the following non-traffic criminal convictions:
1. October 31, 1995, fifth-degree assault (misdemeanor);
2. February 9, 1999, fifth-degree assault (misdemeanor);
October 18, 1988,
August 28, 1998, terroristic
The 1994 Utah DWI conviction,
the July 2001 DWI conviction, and the 1996 impaired driving-related loss of
license, were used as enhancement factors to raise the current charge to felony
DWI. Consequently, the 2001
According to the sentencing guidelines, each DWI
conviction counts as two sentencing units when the current conviction is for
At the sentencing hearing, appellant moved for a downward dispositional departure. The district court granted the motion, sentencing appellant to 54 months, but staying execution of the sentence and placing appellant on probation. In February 2005, however, the district court found that appellant violated the terms and conditions of his probation, and executed appellant’s sentence.
In March 2006, appellant moved to correct his sentence on the basis that the 1996 impaired driving-related loss of license should not have been used as an enhancement factor, and that the 1994 DWI conviction in Utah could not be used either as an enhancement factor or as part of his criminal history score because he was allegedly not represented by counsel. Appellant claimed that because the 1994 Utah DWI and the 1996 impaired driving-related loss of license are unavailable for enhancement purposes, appellant’s other two Minnesota DWIs must be used instead, requiring a reduction in appellant’s sentence. The district court denied appellant’s motion. This appeal followed.
D E C I S I O N
may move to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, which
states: “The [district] court at any
time may correct a sentence not authorized by law.” Similarly, a defendant may challenge his or
her sentence as violative of rights “under the Constitution or laws of the
A. 1996 alcohol related driver’s license revocation
Appellant argues that the district court erred in denying his motion to correct his sentence because his 1996 impaired driving-related loss of license cannot be used as a qualified prior impaired driving incident to enhance his current offense since he had three criminal convictions for DWI that must be used first as prior qualified impaired incidents to enhance the charge. To support his claim, appellant cites State v. Zeimet, where the supreme court held that:
where there are multiple qualified criminal and civil prior impaired driving incidents available for calculating the sentence, for purposes of enhancing the current offense to the felony level, prior criminal convictions should be used before qualified civil incidents are allocated for that purpose; and, consistent with established policies under the guidelines, if a prior driving-while-impaired conviction has been used as a predicate offense for enhancement to create a felony level offense, that same conviction cannot be used a second time in the determination of the offender’s criminal history score.
. . .
Qualified criminal predicate convictions in excess of those used for enhancement will be available in the computation of the offender’s criminal history score on the current offense.
696 N.W.2d 791, 797-98 (
Based on the supreme court’s holding in Zeimet, it was improper to use the 1996 impaired driving-related loss of license as a qualified prior to enhance the current offense because appellant had two other criminal convictions for DWI that should have been first used to enhance the offense. See id. But the state asserts that regardless of the Zeimet decision, appellant is not entitled to relief because his conviction and sentence were final before Zeimet was released. With that argument, we agree.
If a defendant’s
conviction is final at the time a new rule of law was announced, the defendant
ordinarily may not take advantage of the new rule because it will not be retroactive. Erickson v. State, 702 N.W.2d 892, 869 (
Here, appellant was sentenced on September 14, 2004. Appellant did not appeal the conviction and, thus, his conviction became final on December 13, 2004. See Minn. R. Crim. P. 28.02, subd. 4(3) (stating that a criminal appeal must be filed within 90 days of the judgment). The stay of execution of appellant’s sentence was revoked on February 15, 2005. Appellant did not appeal from that decision. Consequently, appellant’s sentence became final on May 16, 2005. Zeimet was released on May 26, 2005. Appellant’s case became final before Zeimet was decided. He is not entitled to relief under Zeimet.
Appellant also contends that his 1994 Utah DWI conviction cannot be used as a qualified prior because his plea was uncounseled. However, because the 1996 impaired driving-related loss of license can be used as a qualified prior, we need not address the issue. As long as the 1996 impaired driving-related loss of license can be used as a qualified prior, the issue of whether the 1994 Utah DWI can be used as a qualified prior is moot because without using the 1994 Utah DWI conviction, appellant still has sufficient DWI convictions to enhance the present charge to first-degree DWI, and enough criminal history points and sentencing units to maintain three criminal history points. The district court properly denied appellant’s motion to correct his sentence.
 Under Minn. Stat. § 169A.24, subd. 1(1) (2002), a person is guilty of first-degree DWI if the person “commits the violation within ten years of the first of three or more qualified prior impaired driving incidents.” A “‘[q]ualified prior impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of license.” Minn. Stat. § 169A.03, subd. 22 (2002).