This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John Frederick Kier,
Filed August 14, 2007
File No. K0-03-110
Lori Swanson, Attorney General, James B. Early, Assistant
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN
Thomas H. Pertler, Carlton County Attorney, 204 Courthouse, P.O. Box 300, Carlton,
John M. Stuart, State Public Defender, G. Tony Atwal,
Assistant Public Defender, 2221
University Avenue Southeast, Suite 425, Minneapolis,
decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
This appeal requires us to determine whether a 2006 amendment
to the first-degree driving-while-impaired (DWI) sentencing statute, Minnesota
Statutes section 169A.28, applies retroactively to a 2005 DWI conviction. The amendment removed the requirement to
impose a consecutive sentence for first-degree DWI when the driver is on
probation or is serving an executed sentence for another first-degree DWI
conviction. John Kier appeals the
consecutive nature of his sentencing for felony first-degree DWI. The district court sentenced Kier to prison in
November 2005 and ordered that the sentence run consecutive to a prison sentence
he was then serving for felony first-degree test refusal. Kier argues that the 2006 amendment applies
retroactively and mandates that his sentences run concurrently. Kier also argues that the district court
failed to properly calculate his jail credit.
Because the first-degree DWI-sentencing statute as amended would not
prohibit consecutive sentencing, and because the amendment has no retroactive
effect, we affirm.
The facts are not in dispute.
John Kier has been convicted of 25 DWI-related offenses, including two
felony and four misdemeanor or gross-misdemeanor DWI offenses since 1995. See State v. Kier, 678 N.W.2d 672, 674 (Minn. App. 2004)
(detailing some of Kier’s criminal history).
This appeal relates to the sentence imposed for his twenty-sixth conviction.
In August 2002, police in Polk County
arrested Kier for driving while impaired and with a cancelled license. The district court convicted Kier of first-degree
refusal to submit to testing and driving after cancellation, and in March 2003,
it sentenced him to an executed term of 66 months’ imprisonment on the
first-degree refusal conviction and to 12 months’ imprisonment on the
driving-after-cancellation conviction, to be served consecutively.
In January 2003, just two days after being convicted for his
Polk County offenses, Fond du Lac police officers found Kier asleep behind the
wheel of a car stopped in the travel lane of a street at one o’clock in the
morning, with the engine running, the car in drive, and Kier’s foot on the
brake. Kier registered a .281 alcohol
concentration on a preliminary breath test, but he refused to submit to a formal
breath test after his arrest.
The state charged Kier with first-degree DWI based on his
prior DWI-related convictions, and with first-degree test refusal. Following a bench trial in April 2005, the
district court found Kier guilty of both counts. In November 2005, the district court
sentenced Kier to 36 months’ imprisonment to be served consecutive to his March
2003 sentence. This appeal follows.
D E C I S I O N
John Kier challenges the consecutive nature of his November
2005 prison sentence for first-degree DWI.
The DWI-sentencing statute in effect at Kier’s sentencing in November 2005 mandated consecutive sentencing
for DWI convictions
(1) . . . arising out of separate courses of
conduct; (2) . . . when the person, at the time of sentencing, is on
probation for, or serving, an executed sentence for a [DWI conviction] . . .
and the prior sentence involved a separate course of conduct; or (3) [that are
accompanied by] another offense arising out of a single course of conduct that
is listed in subdivision 2, paragraph (e), when the person has five or more
qualified prior impaired driving incidents within the past ten years.
Minn. Stat. § 169A.28, subd. 1 (2004). The legislature amended the statute,
effective June 2, 2006, by adding
subdivision 1(b) as an exception to the mandatory consecutive sentencing requirement
of now-designated subdivision 1(a). 2006
ch. 260, art. 2, § 4, at 735-36, 829.
The amendment provides that “[t]he requirement for consecutive
sentencing . . . 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) (2006).
Kier construes the amendment to mandate concurrent sentencing
for first-degree DWI convictions. He
also argues that the amendment applies retroactively to his 2005 conviction and
sentencing. Neither contention survives
a reading of the plain language of the amendment.
We review statutory construction and interpretation of the
sentencing guidelines de novo. State v. Holmes, 719 N.W.2d 904, 907
(Minn. 2006). We give effect to a statute’s plain meaning when
its language is clear and unambiguous. State v. Bluhm, 676 N.W.2d 649, 651
(Minn. 2004). The amendment does not mandate concurrent
sentences for felony first-degree DWI convictions; it merely makes consecutive
sentencing discretionary: The “requirement
for consecutive sentencing in paragraph (a) does not apply.” Minn. Stat.
§ 169A.28, subd. 1(b) (emphasis added); see also Holmes, 719
N.W.2d at 909 n.9 (noting that “[s]ection 169A.28 has been amended to allow concurrent sentencing” (emphasis
added)). Additionally, the postamendment
sentencing guidelines deem felony first-degree DWI offenses as eligible for
permissive consecutive sentences. Minn. Sent. Guidelines
II.F, VI. So even if the amendment applied
retroactively, the district court retained discretion to impose a consecutive
prison sentence for Kier’s April 2005 conviction.
We also do not read the amendment to apply retroactively. Absent a clear and manifest intent by
the legislature, statutes are presumed to operate prospectively only. Minn.
Stat. § 645.21 (2006). The amendment provides
no indication of an intent for retroactive application. The legislation that amends section 169A.28
also amends eight other sections of chapters 169 and 169A. 2006 Minn. Laws ch. 260, art. 2, §§ 1-14,
at 733-40. For each of the other provisions,
the legislation indicates an effective date of August 1, 2006, and
expressly states that the provision applies to offenses that occur after that
date. Id. By contrast, the legislature determined that
the effective date of the amendment to the sentencing provision is “the day
following final enactment,” and it does not include language that directs its
application to offenses committed after the effective date. Id. at 735. The reason for the distinction is obvious. The unamended portion of the sentencing
statute already provides that the court shall impose consecutive sentences if
the defendant, “at the time of sentencing,” is then serving an executed
sentence for a prior DWI conviction. Minn. Stat. § 169A.28, subd. 1(a). The statute, both before amendment and as
amended, applies when a defendant “is being sentenced.” Id., subd.
1(b). The amendment included no language
directing its application to offenses committed after the effective date, and
so by its terms the statute, as amended, continues to apply “at the time of
sentencing” to a defendant who “is being sentenced.” The amendment was not in effect at the time
of sentencing when Kier was being sentenced, and it therefore does not apply to
In a pro se supplemental brief, Kier argues that he is
entitled to more jail credit than he requested and received at the sentencing
hearing, covering the time during which he was incarcerated for the Polk County
convictions. A defendant is entitled to
jail credit only for time spent in custody in connection with the offense for
which the sentence is imposed. Minn. R.
Crim. P. 27.03, subd. 4(B); State v.
Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001), review denied (Minn.
Aug. 15, 2001). “[W]hen a current offense is sentenced consecutive to a prior offense
for which the offender is already serving time in a prison or jail, no jail
credit shall be awarded on the current offense.” Minn.
Sent. Guidelines cmt. III.C.03. Kier
is not entitled to additional jail credit.