Ullrich v. State

Jeremy Richard Ullrich, petitioner, Appellant, v. State of Minnesota, Respondent.

A17-0589

STATE OF MINNESOTA IN COURT OF APPEALS

January 22, 2018

This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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...