Opinion
A21-0006 A21-0009
07-27-2021
Troy Michael Wierson, petitioner, Appellant, v. State of Minnesota, Respondent, and State of Minnesota, Respondent, v. Troy Michael Wierson, Appellant.
ORDER OPINION
Dakota County District Court
File Nos. 19HA- CR-09-907, 19HA-CR-15-2478 Considered and decided by Frisch, Presiding Judge; Ross, Judge; and Jesson, Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. The district court convicted Wierson of a first-degree drug sale in 2009 and sentenced him to a prison term stayed on probationary conditions. Nine years later, a jury convicted Wierson of first-degree drug possession, prompting the district court to revoke his probation and execute his 2009 prison sentence.
2. The district court denied Wierson's motion for a downward dispositional departure seeking a probationary sentence on the 2018 offense. The district court also denied Wierson's related postconviction petition to vacate the revocation decision.
3. We review the district court's denial of a motion for downward departure for an abuse of discretion. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).
4. Contrary to Wierson's quest for a probationary sentence, a defendant convicted of a successive controlled-substance crime must serve a mandatory minimum prison sentence. Minn. Stat. § 152.021, subd. 3(b) (2020). And "[a] defendant convicted and sentenced to a mandatory sentence under section 152.021 . . . is not eligible for probation, parole, discharge, or supervised release until that person has served the full term of imprisonment as provided by law." Minn. Stat. § 152.026 (2020). The district court convicted Wierson of a first-degree controlled-substance crime under section 152.021 in 2009 and of a second controlled-substance crime in 2018. Wierson received his second controlled-substance conviction less than ten years after his first, qualifying the second conviction as an ensuing controlled-substance conviction. See Minn. Stat. § 152.01, subd. 16a (2018). The district court therefore lacked the discretion to grant his motion for a downward dispositional departure.
5. We see no merit in Wierson's related speculation that the generalized, hypothetical danger resulting from imprisonment during the COVID-19 pandemic should have compelled a probationary sentence.
6. Wierson's challenge to the district court's denial of his petition for postconviction relief also fails. He contends that the district court abused its discretion by denying the petition because we reversed three of his four convictions leading to his probation revocation. See State v. Wierson, A18-1281, 2019 WL 4409392 (Minn. App. Sept. 16, 2019) review denied (Nov. 27, 2019) . Even a single probation violation may justify revocation. See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). Our September 2019 decision does not render the district court's denial of Wierson's postconviction petition outside its discretion.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
Dated: July 27, 2021
BY THE COURT
/s/_________
Judge Kevin G. Ross