Cibulka v. State

Jason Charles Cibulka, petitioner, Appellant, v. State of Minnesota, Respondent.

A19-2057

STATE OF MINNESOTA IN COURT OF APPEALS

September 28, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Reversed

Bratvold, Judge

Washington County District Court

File No. 82-CR-11-1478

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Slieter, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

In this appeal from the denial of a second petition for postconviction relief, appellant argues that his conviction for refusing to submit to a warrantless blood test is unconstitutional because the rule announced by the United States Supreme Court in Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552 (2013), is substantive and retroactively applies to him. We agree and therefore reverse his conviction.

FACTS

In April 2011, a police officer responded to a report of an intoxicated driver. The officer stopped the driver for passing three cars in a no-passing zone and identified him as appellant Jason Charles Cibulka. After a preliminary breath test showed that Cibulka was not under the influence of alcohol, a second police officer performed a drug-recognition evaluation. Based on the evaluation, the second officer suspected that Cibulka was under the influence of drugs. Cibulka agreed to take a urine test but could not provide a sample. Officers then asked Cibulka to take a blood test, but he refused.

The state charged Cibulka with first-degree test refusal under Minn. Stat. §§ 169A.20, subd. 2, 169A.24, subd. 1(2) (2010). Cibulka pleaded guilty. In October 2012, the district court sentenced Cibulka to 54 months in prison, stayed execution of the sentence, placed Cibulka on probation, and ordered that Cibulka serve 270 days in jail. In January 2013, after Cibulka violated a condition of probation, the district court revoked Cibulka's probation and executed the 54-month prison sentence.

In October 2013, Cibulka petitioned for postconviction relief. He argued that he should have been allowed to withdraw his guilty plea because the test-refusal statute was unconstitutional as applied to him. He argued that the rule announced by the United States Supreme Court in Missouri v. McNeely—that the natural dissipation of alcohol in the bloodstream is not a single-factor exigent circumstance that justifies a warrantless bloodtest—retroactively applied to his test-refusal conviction. 569 U.S. at 156, 133 S. Ct. at 1563. The postconviction court denied the petition because it determined that McNeely did not apply retroactively to Cibulka. Cibulka appealed. This court affirmed, concluding that "McNeely [did] not apply retroactively to Cibulka's conviction of first-degree test refusal." Cibulka v. State, No. A14-1631, 2015 WL 5194617, at *4 (Minn. App. Sept. 8, 2015), review denied (Minn. Nov. 25, 2015).

In June 2019, Cibulka filed a second petition for postconviction relief. He argued that, under the holdings in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016); State v. Trahan, 886 N.W.2d 216 (Minn. 2016); and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), "[t]he Fourth Amendment prohibits convicting [a person] for refusing a blood or urine test requested of him absent the existence of a warrant or exigent circumstances." He also argued that the holdings in those cases, described as "the Birchfield rule," retroactively applied to him under the Minnesota Supreme Court's decision in Johnson v. State, 916 N.W.2d 674 (Minn. 2018). Cibulka requested that the postconviction court vacate his test-refusal conviction or order an evidentiary hearing to determine whether exigent circumstances justified a warrantless blood or urine search.

The postconviction court denied Cibulka's petition in a written order. The postconviction court first determined that "McNeely is not retroactive" and, when Cibulka was arrested, "the dissipation of drugs was sufficient to establish exigent circumstances such that a warrant was not necessary to request a blood or urine sample." Thus, the postconviction court concluded Cibulka was "lawfully [] charged with and convicted of test refusal." Cibulka appeals.

DECISION

We review an order denying a postconviction petition for abuse of discretion. Brown v. State, 895 N.W.2d 612, 617 (Minn. 2017). "A postconviction court abuses its discretion when it has exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings." Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted). But we review a postconviction court's legal conclusions de novo. Greer v. State, 836 N.W.2d 520, 522 (Minn. 2013). "Whether a rule of federal constitutional law applies retroactively to convictions that were final when the rule was announced is a legal question that [appellate courts] review de novo." Johnson, 916 N.W.2d at 681.

We first consider whether the merits of Cibulka's appeal are properly before us. Concluding that they are, we next examine whether Cibulka is entitled to postconviction relief.

I. Cibulka's argument that McNeely is retroactive is properly before this court.

At the outset, the state contends that we should not consider Cibulka's arguments about McNeely's retroactivity for three reasons, which we address in turn.

First, the state argued to the postconviction court that Cibulka's petition is untimely under Minn. Stat. § 590.01, subd. 4 (2018). The postconviction court did not analyze or discuss the time bar, but concluded that "McNeely is not retroactive." The state repeats its timeliness argument on appeal. Generally, postconviction petitions have a two-year limitation period. "No petition for postconviction relief may be filed more than two years after . . . the entry of judgment of conviction or sentence if no direct appeal is filed."Minn. Stat. § 590.01, subd. 4(a)(1). Cibulka did not pursue a direct appeal. His conviction became final in January 2013, meaning that he needed to seek postconviction relief no later than January 2015. See Minn. R. Crim. P. 28.02, subds. 4(3)(a) (requiring direct appeal to be filed "within 90 days after final judgment or entry of the order being appealed"), 2(1) (providing conviction becomes final "when the district court enters a judgment of conviction and imposes or stays a sentence").

But a petitioner who "asserts a new interpretation of federal or state constitutional or statutory law" and "establishes that this interpretation is retroactively applicable to the petitioner's case" falls under an exception to the two-year limitation period. Minn. Stat. § 590.01, subd. 4(b)(3). A petitioner who invokes this exception must file his postconviction petition "within two years of the date the claim arises." Id., subd. 4(c). A claim under this statute "arises" when the petitioner "knew or should have known that the claim existed." Sanchez v. State, 816 N.W.2d 550, 552 (Minn. 2012) (emphasis added).

As explained below, the McNeely rule applies retroactively to test-refusal convictions challenged under the Birchfield rule. Hagerman v. State, 945 N.W.2d 872, 873 (Minn. App. 2020), review granted (Minn. Aug. 25, 2020). And a petition for postconviction relief from a test-refusal conviction under the Birchfield rule is timely if filed within the two-year period following the Johnson decision in 2018. Edwards v. State, ___ N.W.2d ___, ___, No. A19-1943, slip op. at 9-10 (Minn. App. Sept. 22, 2020). Cibulka filed his second postconviction petition in 2019, which was within two years of Johnson. Thus, Cibulka's second postconviction petition is not time-barred under Minn. Stat. § 590.01, subd. 4(c).

For the first time on appeal, the state argues that we may not consider McNeely's retroactivity for two other reasons. Even if we consider the state's second and third arguments—neither presented to nor decided by the district court, see, e.g., Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)—the state's arguments fail.

Second, the state argues that Cibulka waived the issue of McNeely's retroactivity because he failed to assert the McNeely decision in his second postconviction petition, which emphasized the Birchfield rule. "It is well settled that a party may not raise issues for the first time on appeal from denial of postconviction relief." Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (quotation omitted). But Cibulka's second postconviction petition sought relief under the Birchfield rule. And the rule announced in McNeely retroactively applies to test-refusal convictions challenged under the Birchfield rule. Hagerman, 945 N.W.2d at 873. We determine that, by seeking relief under the Birchfield rule, Cibulka implicitly sought relief under McNeely "as applied through the Birchfield rule." Id. at 874. Moreover, the postconviction court specifically denied Cibulka's petition because it determined that "McNeely is not retroactive." Thus, the retroactivity of McNeely is squarely before us.¹

Third, the state argues that the law-of-the-case doctrine bars Cibulka's arguments about McNeely's retroactivity because, in 2015, we concluded that McNeely did not retroactively apply to Cibulka's conviction. Cibulka, 2015 WL 5194617, at *4. Under the law-of-the-case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." State v. Miller, 849 N.W.2d 94, 98 (Minn. App. 2014) (quotation omitted). But the law-of-the-case doctrine is not absolute. "When there has been a change in the law by a judicial ruling entitled to deference between appeals of ...