Opinion
A17-0589
01-22-2018
Jeremy Richard Ullrich, petitioner, Appellant, v. State of Minnesota, Respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County Attorney, Mankato, Minnesota (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2016). Affirmed
Smith, Tracy M., Judge
Dissenting, Hooten, Judge Blue Earth County District Court
File No. 07-CR-04-540 Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County Attorney, Mankato, Minnesota (for respondent) Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith, Tracy M., Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Appellant Jeremy Ullrich challenges the district court's denial of his petition for postconviction relief attacking his conviction of chemical-test refusal. Ullrich argues that the new procedural rules announced by the Minnesota Supreme Court in two test-refusal cases apply retroactively and require that his conviction be vacated. Following our recent published decision in Johnson v. State, ___ N.W.2d ___, ___, No. A17-0842, slip op. at 2 (Minn. App. Jan. 2, 2018), we reject appellant's argument and affirm.
FACTS
On January 19, 2004, appellant Jeremy Ullrich was pulled over by a Mankato police officer for suspicion of driving with a canceled license. A search of his vehicle revealed supplies for methamphetamine production. In addition, Ullrich admitted to using cocaine within the preceding 48 hours. Ullrich was transported to the law enforcement center. There, police read Ullrich the Minnesota Motor Vehicle Implied Consent Advisory and asked him to take a blood or urine test. Ullrich stated that he understood the advisory, consulted an attorney, and then refused to take a chemical test.
Ullrich was charged with first-degree aiding and abetting controlled-substance crime, first-degree conspiracy to commit controlled-substance crime, fifth-degree controlled-substance crime, first-degree driving while impaired, and first-degree refusal to submit to chemical test.
Ullrich subsequently filed a petition to enter a guilty plea on an amended count one, attempted manufacture of methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2a(b) (Supp. 2003), and count five, first-degree refusal to submit to chemical test, in violation of Minn. Stat. § 169A.20, subd. 2 (Supp. 2003). In exchange, the state agreed to dismiss the other charges in the case, as well as the charges in a separate case. At the plea hearing on July 29, 2004, Ullrich admitted that, on January 19, 2004, after being read the Minnesota Motor Vehicle Implied Consent Advisory, he refused to submit to a chemical test. The district court accepted Ullrich's plea and, on September 10, 2004, imposed a sentence of 69 months' imprisonment and 5 years' conditional release for the first-degree test-refusal offense and a concurrent sentence of 23 months' imprisonment for the controlled-substance offense.
On December 8, 2016, Ullrich filed a petition for postconviction relief, arguing that his 2004 conviction for first-degree test refusal must be vacated because the Minnesota Supreme Court's holdings in State v. Trahan, 886 N.W.2d 216, 218 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224, 233-34 (Minn. 2016)—that, absent an exception to the warrant requirement, a person may not be prosecuted for refusing to submit to a warrantless blood or urine test—apply retroactively to his conviction.
The district court concluded that these holdings did not retroactively apply to Ullrich's conviction. The district court noted that, ordinarily, a petition for postconviction relief must be filed within two years of the entry of judgment of conviction or sentence if no direct appeal is filed. See Minn. Stat. § 590.01, subd. 4(a)(1) (2016). Although Minn. Stat. § 590.01, subd. 4(b)(3) (2016), establishes an exception to this general rule when a new interpretation of federal or state law is retroactively applicable, the district court concluded that—based on concerns regarding finality and allowing Ullrich to obtain the benefit of a plea bargain without the associated detriment of a conviction, as well as a conclusion that Trahan and Thompson did not meet the criteria for mandatory retroactivity—the exception did not apply, and denied the petition.
Ullrich appeals.
DECISION
Whether a new rule of law applies retroactively is a question of law, which we review de novo. See Danforth v. State, 761 N.W.2d 493, 495 (Minn. 2009). We recently held, in Johnson, that "[t]he new rules of procedure announced in State v. Trahan, 866 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), do not apply retroactively on collateral review of a final conviction." Slip op. at 2.
Johnson controls the resolution of this case. See State v. Thomas, 882 N.W.2d 640, 646 (Minn. App. 2016) (stating that the court of appeals is bound by supreme court precedent and the published opinions of the court of appeals), aff'd, 891 N.W.2d 612 (Minn. 2017). Irrespective of whether Ullrich forfeited his argument by petitioning for postconviction relief more than two years after his conviction became final or waived it by his guilty plea, under Johnson, the new rules of procedure established by Trahan and Thompson do not apply retroactively on collateral review of his conviction of test refusal. The district court, therefore, did not err in denying Ullrich's petition for postconviction relief.
Affirmed. HOOTEN, Judge (dissenting)
Because I believe that the new rules announced in State v. Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), are substantive as applied to the criminalization of test refusal, Minn. Stat. § 169A.20, subd. 2 (2016), and the majority relies on Johnson v. State, ___ N.W.2d ___, ___, No. A17-0842, slip op. at 2 (Minn. App. Jan. 2, 2018), which found that the new rules are procedural, I respectfully dissent.
The majority relies on State v. Thomas, 882 N.W.2d 640, 646 (Minn. App. 2016), aff'd, 891 N.W.2d 612 (Minn. 2017), for the proposition that we are bound by the published decisions of our court. However, "[w]e will overrule our own precedent if provided with a compelling reason to do so." State ex rel. Pollard v. Roy, 878 N.W.2d 341, 348 (Minn. App. 2016), review denied (Minn. Dec. 27, 2016); see also Willis v. Cty. of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996) (pointing out that decisions of our court "do[] not represent a definitive statement of the law of Minnesota until adopted by [the Minnesota Supreme Court]"). Before us is an individual who stands convicted of a crime because he exercised his Fourth Amendment right not to submit to a warrantless blood or urine test—an act the United States Constitution prohibits the State from criminalizing absent exigent circumstances. Trahan, 886 N.W.2d at 218; Thompson, 886 N.W.2d at 226. Because Ullrich exercised his constitutional right to refuse such a test, the State prosecuted him and the district court sentenced him to spend 69 months in prison. Precedent from the United States Supreme Court, along with the Minnesota Supreme Court's articulation of the new rules in Trahan and Thompson, require that these new rules have retroactive effect and individuals like Ullrich be given the opportunity to show that the new rules make their "conviction[s] . . . unlawful." See Montgomery v. Louisiana, 136 S. Ct. 718, 729-30 (2016); see also id. at 732 ("In adjudicating claims under its collateral review procedures a State may not deny a controlling right asserted under the Constitution, assuming the claim is properly presented in the case."). If a case such as this does not present a compelling reason to consider departing from our very recent precedent, no such case may exist. Cf. United States v. U.S. Coin & Currency, 401 U.S. 715, 724, 91 S. Ct. 1041, 1046 (1971) ("In the case before us, however, even the use of impeccable factfinding procedures could not legitimate a verdict decreeing forfeiture, for we have held that the conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complete retroactivity.").
The rules announced in Trahan and Thompson are that a defendant cannot "be prosecuted for refusing to submit to an unconstitutional warrantless blood or urine test." Thompson, 886 N.W.2d at 234; Trahan, 886 N.W.2d at 224. New rules of law are generally not applied retroactively to final convictions. See Teague v. Lane, 489 U.S. 288, 300-01, 109 S. Ct. 1060, 1070-71 (1989); see also Danforth v. State, 761 N.W.2d 493, 498-99 (2009) (adopting Teague as it applies to Minnesota state law). One of the two Teague exceptions, wherein a new rule is applied retroactively, is if the rule is substantive. Schriro v. Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 2522 (2004). Because Trahan and Thompson made it unconstitutional to prosecute an individual for refusing to submit to a warrantless blood or urine test, absent exigent circumstances, the new rules "narrow the scope of a criminal statute[,] . . . place particular conduct or persons covered by the statute beyond the State's power to punish," and are therefore substantive. See id. at 351-52, 124 S. Ct. at 2522 (emphasis added) (citation omitted).
Absent exigent circumstances or a warrant, an individual has the constitutional right to refuse to submit to a blood or urine test. Thompson, 886 N.W.2d at 233-34. Ullrich's refusal to submit to a blood or urine test, which was a crime under the test refusal statute, was not conduct that the state could criminalize where the state had not obtained a warrant and no exigency existed. By mandating that such persons cannot be prosecuted, Trahan and Thompson created a class of persons who could no longer be punished for refusing to submit to such testing. Before Trahan and Thompson, a person who refused to submit to a warrantless blood or urine test when required to do so by Minn. Stat. § 169A.20, subd. 2, could be prosecuted for violation of that statute. After Trahan and Thompson, the same person refusing to submit to a warrantless blood or urine test can no longer be prosecuted, and "even the use of impeccable factfinding procedures could not legitimate" a conviction in those circumstances. See Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016) (quotation omitted).
The majority's decision to rely on Johnson is misplaced because Johnson oversimplifies the analysis of whether a rule is substantive or procedural. Trahan and Thompson relied on the Fourth Amendment right to be free from unreasonable searches and seizures, which almost exclusively determines proper law enforcement procedures. And Trahan and Thompson modified the procedure that law enforcement must follow before administering a blood or urine test. Following this reasoning, Johnson concluded that the new rules announced are procedural. Johnson, slip op. at 8-9. But whether a rule is substantive or procedural under Teague depends on "the function of the rule" and not "whether the constitutional right underlying the new rule is substantive or procedural." Welch, 136 S. Ct. at 1265. Focusing on the existence of procedural components "conflates a procedural requirement necessary to implement a substantive guarantee with a rule that regulate[s] only the manner of determining the defendant's culpability." Montgomery, 136 S. Ct. at 734-35 (emphasis omitted and alteration in original) (quotation omitted).
The relevance of this difference is highlighted by considering a driving while impaired (DWI) charge where police obtained, without a search warrant or exigency, urine or blood evidence showing an alcohol concentration of 0.08 or more. In that context, the rule is procedural because it would "regulate only the manner of determining the defendant's culpability." Welch, 136 S. Ct. at 1265 (emphasis omitted) (quotation omitted). If police obtained urine or blood evidence from a defendant without a search warrant or exigency, that defendant would have an argument that the evidence was obtained in violation of the Fourth Amendment. But, the remedy requested would be suppression of the evidence, a remedy which would not affect whether the defendant could be prosecuted for a DWI, only whether the illegally obtained evidence could be used to prove the charge. Under the new rules, it is likely that the evidence obtained would be suppressed. But, if the police had used proper procedures in obtaining the alcohol concentration evidence, that evidence would be admissible and a conviction for driving over the legal limit would be valid. See Welch, 136 S. Ct. at 1265 (quotation omitted). Whether the police followed proper procedures in obtaining alcohol concentration evidence would have no effect on whether the defendant's conduct, driving while over the legal limit, was a crime.
However, in the context of a test refusal conviction, there is no evidence to be suppressed and any conviction for test refusal where there were no exigent circumstances and police did not obtain a warrant is now unlawful. Cf. Trahan, 886 N.W.2d at 223 ("Trahan is challenging the constitutional validity of his conviction, which did not result from the admission of any illegally obtained evidence."). It would be beyond the power of the state to punish an individual for that conduct. To reach the opposite conclusion, I would have to assume that Ullrich would still have refused the test had the police produced a warrant or had an exigency existed. But to make that assumption would be to fundamentally change the underlying facts of the case and the circumstances under which Ullrich refused to submit to testing. It is refusal in the face of valid police authority to require the defendant to submit to chemical testing that can be criminalized, not refusal to comply with an illegal and invalid search. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016) ("[The petitioner] was criminally prosecuted for refusing a warrantless blood draw . . . . [W]e conclude that [the petitioner] was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.").
The majority's reliance on Johnson, and Johnson's focus on the fact that test refusal is still a crime if police comply with the Fourth Amendment, miss the key point that Trahan and Thompson alter "the class of persons that the law punishes." See Welch, 136 S. Ct. at 1264-65 (quotation omitted). The Minnesota Supreme Court previously relied on almost identical reasoning to hold that a rule was procedural. See Chambers v. State, 831 N.W.2d 311, 328-29 (Minn. 2013), overruled by Jackson v. State, 883 N.W.2d 272, 277 (Minn. 2016). In Chambers, the supreme court considered whether the rule prohibiting mandatory life sentences without parole for juvenile offenders was substantive and should be applied retroactively. Id. at 321. As a result of the new rule, "the judge or jury [must] consider the individual characteristics of the juvenile offender before imposing a life without the possibility of parole sentence." Id. at 322. Holding the rule was procedural, the court argued that the "rule . . . [did] not eliminate the power of the State to impose the punishment of life imprisonment without the possibility of release upon a juvenile offender," and also relied upon a Fifth Circuit Court of Appeals decision applying the same reasoning. Id. at 328-30. But, when the United States Supreme Court considered the retroactive application of the same rule in Montgomery, it explicitly rejected that argument and held the rule was substantive and applied retroactively. Montgomery, 136 S. Ct. at 734 ("Louisiana nonetheless argues that [the rule] is procedural because it did not place any punishment beyond the State's power to impose . . . . The fact that life without parole could be a proportionate sentence for the latter kind of juvenile offender does not mean that all other children imprisoned under a disproportionate sentence have not suffered the deprivation of a substantive right.").
Additionally, the rules announced in Trahan and Thompson add an element to the offense which "alter[s] the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful." See Schriro, 542 U.S. at 354, 124 S. Ct. at 2524. The majority relies on Johnson's conclusion that Trahan and Thompson did not modify the elements of test refusal because it did not alter the defendant's conduct. See Johnson, slip op. at 9. But while it is true that the crime still requires the defendant's refusal to submit to testing, the state can only prosecute a defendant for that conduct when the refusal occurs in the face of a valid search request—a search accompanied by a warrant or exigent circumstances. If the search is unconstitutional, then the defendant "cannot be prosecuted for refusing to submit to" testing. Thompson, 886 N.W.2d at 234 (emphasis added); Trahan, 886 N.W.2d at 224. The prohibition on bringing charges against a defendant without alleging that police had a warrant or an exigency existed confirms that Trahan and Thompson modified the class of persons that the statute can legally punish and added an element to the offense which the State must prove to convict someone for test refusal.
That Trahan and Thompson "alters . . . the class of persons that the law punishes" is consistent with Welch, which held a rule applied retroactively because it "struck down part of a criminal statute that regulates conduct and prescribes punishment[] . . . thereby alter[ing] the range of conduct or the class of persons that the law punishes." See Welch, 136 S. Ct. at 1265, 1268 (quotation omitted); see also Johnson v. United States, 135 S. Ct. 2551, 2557-58 (2015). Welch dealt with the federal Armed Career Criminal Act, which provides that "a person who possesses a firearm after three or more convictions for . . . a 'violent felony' is subject to a minimum sentence of 15 years." 136 S. Ct. at 1261 (citation omitted). Otherwise, federal law provides that a felon in possession of a firearm can only "be sentenced to prison for up to 10 years." Id. While the act defines violent felony to include crimes with a specific element, and specific crimes, the act also contains a residual clause declaring as a violent felony "any crime punishable by imprisonment for a term exceeding one year . . . [that] otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B) (2012). The Supreme Court struck down the residual clause as unconstitutionally void for vagueness in 2015. Johnson v. United States, 135 S. Ct. at 2557-58. Then, Welch held that the rule applied retroactively. Welch, 136 S. Ct. at 1268. Before the residual clause was struck down, the Armed Career Criminal Act "applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause." Welch, 136 S. Ct. at 1265. Such a person "faced 15 years to life in prison." Id. After the residual clause was struck down, "the same person engaging in the same conduct is no longer subject to the [a]ct and faces at most 10 years in prison." Id.
Trahan and Thompson have the exact same function as the decision applied retroactively in Welch. See id. at 1265-66. The class of persons who could be punished for refusing to submit to a blood or urine test was altered from all persons who refuse testing, to only those persons who refuse in the face of a warrant or exigent circumstances.
And, this court's conclusions in Johnson that because each case would involve a case-by-case analysis, it is not an element, nor does it create "a class of persons convicted of conduct the law does not make criminal," misinterpret Supreme Court precedent and therefore the majority's reliance on Johnson is misplaced. See Johnson, slip op. at 10 (quotation omitted). A case-by-case analysis will be required to determine whether or not an individual is a member of the class—based upon whether police obtained a warrant or if an exigency exists—but this analysis does not deny the existence of the class. Nor does it have any bearing on whether Trahan and Thompson added an element to the crime. Welch held that the new rule applied retroactively even though there was a "dispute whether [the defendant's conviction] qualifies as a violent felony under the elements clause of the [a]ct, which would make [the defendant] eligible for a 15-year sentence regardless of" the new rule. Welch, 136 S. Ct. at 1268. Thus, even though the defendant in Welch might still be subject to the penalties of the Armed Career Criminal Act—a determination requiring a case-by-case analysis—the Supreme Court nevertheless held that the rule applied retroactively and remanded the case to allow the government to argue that the defendant's conduct still qualified under the act as modified by the new rule. Id.
Montgomery further confirms that neither the prominent procedural aspects of a rule, nor the necessity of a case-by-case analysis, make a rule procedural if the function of the rule is substantive. Montgomery, like Chambers, considered whether the rule prohibiting mandatory life sentences without parole for juvenile offenders was substantive and must be applied retroactively. Montgomery, 136 S. Ct. at 732. The Court expressly recognized the procedural component of the new rule, because the rule required sentencing judges to "consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Id. at 734. In spite of this procedural component, the Court held that the rule was substantive because "it rendered life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth." Id. (quotation omitted). The new rule was retroactive because "it necessarily carr[ied] a significant risk that a defendant—here, the vast majority of juvenile offenders—faces a punishment that the law cannot impose upon him." Id. (quotation omitted).
In Welch and Montgomery, the function of the new rule was substantive. Similarly, the function of the new rules from Trahan and Thompson in test refusal cases is also substantive, and that conclusion is not countered merely because application of the new rules will require a case-by-case analysis to determine who is a member of the class of persons that the statute can legally punish. And, the fact that the new element involves police procedure does not alter that "the function of the rule" is to require the state to prove that the defendant refused to submit to a blood or urine test in the face of a warrant or exigent circumstances. See Welch, 136 S. Ct. at 1265.
Based upon the parties' arguments regarding retroactivity, I would hold that the rules announced in Trahan and Thompson are substantive and apply retroactively in test-refusal cases. Accordingly, I would reverse and remand for the district court's consideration of whether, because Ullrich pleaded guilty, he can receive the retroactive effect of the new substantive rule, and any appropriate remedy.