State v. Kirby / Minnesota Sentencing Guidelines Commission

Sentences After State v. Kirby

On July 26, 2017, in State v. Kirby, 899 N.W.2d 485 (Minn. 2017), the Minnesota Supreme Court held that the amelioration doctrine required the resentencing of a person whose conviction was not yet final on May 23, 2016 - the effective date of section 18 of the Drug Sentencing Reform Act (2016 Minn. Laws ch. 160) - in a case in which the Drug Offender Grid, as established under that section, reduced the offender's presumptive sentencing range from that of the sentencing grid in effect at the time of the offense.

A second case decided the same day, State. v. Otto, 899 N.W.2d 501 (Minn. 2017), held that the amelioration doctrine did not apply to the Drug Sentencing Reform Act's controlled substance weight threshold changes.

When the sentencing judge determines that the 2016 Drug Offender Grid applies under Kirby to sentence, or resentence, certain first- or second-degree drug offenses, even though the offenses occurred before August 1, 2016, it will be necessary to prepare the sentencing worksheet using the "Override" button. Also, please make a note in the worksheet comments such as "Sentencing judge applied the Drug Offender Grid because of State v. Kirby," "Sentencing judge found that the amelioration doctrine required use of the Drug Offender Grid," or similar language. These comments will allow MSGC staff to code these cases properly pending receipt of formal guidance by the Sentencing Guidelines Commission.

Effective Dates - Sections of the Drug Sentencing Reform Act (DSRA), 2016 Minn. Laws ch. 160, Related to Crimes and Sentencing

DSRA Section	Section’s Effect	Section’s Effective Date
1	Amended the definition of “subsequent controlled substance conviction”	“This section is effective August 1, 2016, and applies to crimes committed on or after that date.” In Otto, this language (as found in sections 3 & 4) was held to show the Legislature’s clear intent to abrogate the amelioration doctrine; Kirby therefore did not apply, and those DSRA sections applied only to crimes committed on or after August 1, 2016.
2	Defined “aggravating factor[s]”
3	Amended weight thresholds and other criminal elements for 1^st degree controlled substance crime
4	Amended weight thresholds and other criminal elements for 2^nd degree controlled substance crime
5	Amended weight thresholds, and eliminated subsequent-conviction penalty, for 3^rd degree controlled substance crime
6	Eliminated subsequent-conviction penalty for 4^th degree controlled substance crime
7	Amended 5^th degree controlled substance crime, to include elimination of the subsequent-conviction penalty and creation of a gross misdemeanor offense
8	Made a conforming change to Minn. Stat. § 152.026
9	Created misdemeanor subsequent drug paraphernalia crime
10	Amended drug offender stay of adjudication law (Minn. Stat. § 152.18)
16, 17	Amended the mandatory minimum sentence law (Minn. Stat. § 609.11)
18	Directed the Minnesota Sentencing Guidelines Commission to adopt its proposed Drug Offender Grid, as modified by the Legislature	“This section is effective the day following final enactment.” Because, in Kirby, this language was held not to show the Legislature’s clear intent to abrogate the amelioration doctrine, the mitigating effects of the Drug Offender Grid¹ were applicable to offenders whose convictions were not final as of the day following final enactment.² ¹The mitigating effects of the Drug Offender Grid are found only on those rows applicable to controlled substance crimes in the 1st and 2nd degrees. ²May 23, 2016, was the day following the DSRA’s final enactment.