Opinion
A23-0403
01-30-2024
State of Minnesota, Respondent, v. Theresa Marie Glaser, Appellant.
Dakota County District Court File No. 19HA-CR-20-3074
Considered and decided by Schmidt, Presiding Judge; Segal, Chief Judge; and Ross, Judge.
ORDER OPINION
Susan L. Segal Chief Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Theresa Marie Glaser challenges the district court's order requiring her to provide a DNA sample in conjunction with her conviction pursuant to a guilty plea of gross-misdemeanor driving after cancellation and argues that she should be resentenced to 364 days instead of 365 days in jail based on a 2023 statutory amendment. Because we conclude that the district court erred in ordering Glaser to provide a DNA sample and that the 2023 amendment is applicable, we reverse the order to provide a DNA sample and reverse and remand for a correction of Glaser's sentence.
2. This case arose in December 2020, when respondent State of Minnesota charged Glaser with felony first-degree controlled-substance crime (sale) and felony fifthdegree controlled-substance crime (possession). According to the complaint, a police officer initiated a traffic stop of a car driven by Glaser after the officer observed several traffic violations. Glaser informed the officer that she did not have a driver's license, and Glaser was arrested after the officer confirmed that Glaser's driving privileges had been cancelled as inimical to public safety. Law enforcement then searched the car and discovered approximately 343 grams of a substance that field tested positive for methamphetamine and 0.35 grams of a substance that field tested positive for heroin.
3. Glaser moved to suppress the evidence discovered during the search of her car and dismiss the charges on the grounds that the traffic stop and subsequent search were unconstitutional. The parties reached a plea agreement before the district court ruled on the motion. Pursuant to the plea agreement, the state amended the complaint to add a charge of gross-misdemeanor driving after cancellation, and Glaser pleaded guilty to that offense. The state agreed to dismiss the felony-level controlled-substance-crime charges, and noted that it "believe[d] that this is the just resolution in this case, given the constitutional issues raised by [defense counsel]."
4. The district court sentenced Glaser to 365 days in jail for driving after cancellation, stayed execution of the sentence, and placed Glaser on probation for up to two years. The district court also ordered Glaser to provide a DNA sample because the original charges were for felonies.
5. Glaser first argues that the district court erred in ordering her to provide a DNA sample. Pursuant to Minn. Stat. § 609.117, subd. 1(1) (2020), "the court shall order an offender to provide a biological specimen for the purpose of DNA analysis" when "the court sentences a person charged with committing or attempting to commit a felony offense and the person is convicted of that offense or of any offense arising out of the same set of circumstances." Glaser argues, and the state agrees, that the district court erred in ordering Glaser to provide a DNA sample because the offense she was convicted of and sentenced for-driving after cancellation-did not arise out of the same set of circumstances as the charged felony-level controlled-substance crimes. This presents a question of law subject to de novo review. State v. Berry, 959 N.W.2d 184, 187 (Minn. 2021).
6. As this court has observed in a nonprecedential opinion that we cite for its persuasive value, "[t]here is no caselaw interpreting the language 'arising out of the same set of circumstances' in Minn. Stat. § 609.117, subd. 1(1)." State v. Adolfson, No. A16-0617, 2017 WL 393889, at *2 (Minn.App. Jan. 30, 2017). But this court further noted that the supreme court has interpreted identical language in the predatory-offender registration statute and relied on that body of caselaw to determine whether a conviction arose out of the same set of circumstances as a charged offense. Id. (citing Minn. Stat. § 243.166, subd. 1b(a)(1) (2014)). Accordingly, we turn to that caselaw for guidance.
7. In State v. Lopez, the supreme court explained: "The 'same set of circumstances' provision in the statute requires registration where the same general group of facts gives rise to both the conviction offense and the charged predatory offense. In other words, the circumstances underlying both must overlap with regard to time, location, persons involved, and basic facts." 778 N.W.2d 700, 706 (Minn. 2010). In Berry, the supreme court "restate[d] . . . that the test of time, location, persons involved, and basic facts is the correct framework" to determine if a conviction arose out of the same set of circumstances as a charged predatory offense. 959 N.W.2d at 188. The supreme court also reiterated that "these factors should be read narrowly; they cannot be applied so broadly as to include merely 'related' circumstances." Id.
8. Glaser argues that the district court erred in ordering her to provide a DNA sample because her driving-after-cancellation conviction did not arise out of the same set of circumstances as the charged felony-level controlled-substance-crime offenses. The state agrees, as do we. As Glaser notes, a controlled-substance crime based on a sale "is committed when the sale takes place." State v. Bauer, 792 N.W.2d 825, 828 (Minn. 2011). And "[a]lthough a crime of possession is a continuing offense, it is complete when the offender takes possession of the prohibited item." State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (citation omitted). Accordingly, both controlled-substance crimes were completed before the driving-after-cancellation offense, which occurred when Glaser operated the vehicle on the night of her arrest. And although law enforcement discovered the underlying evidence for the offenses at the same time, there is no other link between the basic facts of the driving-after-cancellation offense and the controlled substances found in the vehicle. On this record, we agree with the parties that the driving-after-cancellation offense did not arise out of the same set of circumstances as the charged offenses, and the district court therefore erred in ordering Glaser to provide a DNA sample.
9. Glaser next argues that she is entitled to be resentenced to 364 days in jail. The district court imposed, and then stayed, a sentence of 365 days in jail for the grossmisdemeanor driving-after-cancellation conviction. Under the sentencing statutes in effect at the time of the offense, the statutory-maximum sentence for the gross-misdemeanor offense was "not more than one year" in jail. Minn. Stat. § 609.03(2) (2020). However, the legislature has since enacted Minn. Stat. § 609.0342 (Supp. 2023), which provides:
(a) Any law of this state that provides for a maximum sentence of imprisonment of one year or is defined as a gross misdemeanor shall be deemed to provide for a maximum fine of $3,000 and a maximum sentence of imprisonment of 364 days.
(b) Any sentence of imprisonment for one year or 365 days imposed or executed before July 1, 2023, shall be deemed to be a sentence of imprisonment for 364 days. A court may at any time correct or reduce such a sentence pursuant to rule 27.03, subdivision 9, of the Rules of Criminal Procedure and shall issue a corrected sentencing order upon motion of any eligible defendant.(Emphasis added.) See also 2023 Minn. Laws ch. 52, art. 6, § 6, at 736-37.
10. Glaser argues, and the state again agrees, that she is entitled to be resentenced to 364 days in jail. The district court imposed a sentence of 365 days in jail on December 16, 2022. The district court therefore imposed a sentence of 365 days in jail before May 20, 2023, and consequently the sentence "shall be deemed to be a sentence of imprisonment for 364 days" under Minn. Stat. § 609.0342(b).
IT IS HEREBY ORDERED:
1. The district court's order requiring appellant to provide a DNA sample is reversed.
2. The district court's sentencing order is reversed and this matter is remanded for resentencing to a duration not to exceed 364 days.
3. 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.