State of Minnesota, Respondent, vs. John Frederick Kier, Appellant.

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State of Minnesota, Respondent, vs. John Frederick Kier, Appellant. A06-230, Court of Appeals Unpublished, August 14, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).







State of Minnesota,





John Frederick Kier,



Filed August 14, 2007


Ross, Judge


Carlton County District Court

File No. K0-03-110



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


Thomas H. Pertler, Carlton County Attorney, 204 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)


John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)



Considered and 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

ROSS, Judge

This appeal requires us to determine whether a 2006 amendment to the first-degree driving-while-impaired (DWI) sentencing statute, Minnesota Statutes section 169 A. 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.



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. § 169 A. 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 Minn. Laws 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 169 A. 20 (driving while impaired) under circumstances described in section 169 A. 24 (first-degree driving while impaired)."  Minn. Stat. § 169 A. 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. § 169 A. 28, subd. 1(b) (emphasis added); see also Holmes, 719 N.W.2d at 909 n.9 (noting that "[s]ection 169 A. 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 169 A. 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. § 169 A. 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 his sentencing.


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.