Filed July 10, 2007

Affirmed

Randall, Judge

Ramsey County District Court

File No. K1-04-1912

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

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

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

RANDALL, Judge

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.

FACTS

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:

1. June 12, 1994, DWI, Cedar, Utah;

2. August 13, 1996, impaired driving-related loss of license, Ramsey County, MN;

3. July 17, 2001, DWI, Ramsey County, MN;

4. August 14, 2001, DWI, Dakota County, MN;

5. January 1, 2002, DWI, Ramsey County, MN.

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);

3. October 18, 1988, second-degree burglary, Minot, ND;

4. August 28, 1998, terroristic threats, Dakota County, MN.

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.[1] Consequently, the 2001 Dakota County DWI and the 2002 Ramsey County DWI were used as part of appellant’s criminal history score.

According to the sentencing guidelines, each DWI conviction counts as two sentencing units when the current conviction is for first-degree DWI. Minn. Sent. Guidelines II.B.3. The guidelines also mandate that four sentencing units are necessary to make up one criminal history point. Id. Based on the August 14, 2001, Dakota County DWI, the January 1, 2002, Ramsey County DWI, and the two misdemeanor fifth-degree assault convictions, appellant was allotted six sentencing units. The six sentencing units counted as one criminal history point (the remaining two sentencing units were dropped). Appellant also received one criminal history point for the 1988 second-degree burglary conviction, and one criminal history point for the 1998 terroristic threats conviction, for a total of three criminal history points. The presumptive sentence for a person with appellant’s criminal history score is 54 months.

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

A defendant 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 United States or of the state” by bringing a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1(1) (2004). This court reviews a district court’s ruling on a motion to correct a sentence under the same standard used for appellate review of a ruling on a postconviction petition, an abuse-of-discretion standard with de novo review of questions of law. State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (motion to correct sentence); Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (postconviction petition). An appellate court will “afford great deference to a district court’s findings of fact and will not reverse” a decision on postconviction relief absent clearly erroneous findings or an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Motions for sentence correction are committed to the district court’s discretion and will be reversed only when discretion is not properly exercised and the sentence is unauthorized by law. State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).

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 (Minn. 2005).

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 (Minn. App. 2005) (stating that because the court established a new rule of law, retroactive application was not required). In State v. Lewis, the Minnesota Supreme Court quoted with approval the United States Supreme Court’s definition of “final,” for purposes of retroactivity, as “‘a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or . . . finally denied.’” 656 N.W.2d 535, 538 n.2 (Minn.2003) (alteration in original) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S. Ct. 708, 712 n.6 (1987)).

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.

B. 1994 Utah DWI conviction

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.

Affirmed.

[1] 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).