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State v. Kilgore

May 27, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
MALACHI KILGORE, APPELLANT.



Hennepin County District Court File No. 00017431

Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.

SYLLABUS BY THE COURT

1. By the plain language of the Minnesota Supreme Court's opinion in State v. Misquadace, the holding applies only prospectively. State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002). Misquadace does not apply to appellant because his time for appeal had lapsed before Misquadace was filed.

2. Under State v. Givens, the law in effect for appellant's case, a criminal defendant had the right to negotiate a plea agreement involving a departure from the sentencing guidelines if he felt it was in his best interests to do so. This plea agreement was accepted by the district court and appellant received the benefit of his bargain. He is not entitled to be resentenced.

The opinion of the court was delivered by: Randall, Judge

Affirmed

OPINION

In this appeal from the district court's denial of post-conviction relief, appellant argues that he improperly received an upward departure under the sentencing guidelines and, therefore, his sentence should be reduced. We affirm,

FACTS

Appellant shot and killed Larry Arneberg on January 19, 2000. The grand jury indicted appellant for first-degree murder. After extensive plea negotiations, appellant and the state agreed that appellant would plead guilty to the lesser-included offense of second-degree murder and serve 396 months in prison, a 90-month upward durational departure. The salient fact underlying the plea negotiation is as follows: 396 months equals 33 years. On a 33-year sentence for murder in the second degree, a defendant will serve 22 years behind bars and 11 of the 33 years will be served on probation. If a defendant is convicted of murder in the first degree in Minnesota, the sentence is automatic and the sentencing judge has absolutely no discretion. Life imprisonment is the sentence, and since 1989, an inmate must serve 30 years behind bars before even becoming eligible for a parole hearing. Eligibility for a parole hearing carries absolutely no guaranties that the inmate will ever be paroled. A life sentence in Minnesota means a minimum of 30 years behind bars and no guaranties of any release in a person's lifetime. Appellant and his attorney traded away any possibility that appellant would be found guilty of murder in the first degree and be sentenced to a minimum of 30 years or more behind bars in return for agreeing to accept a sentence of 33 years, as outlined above; meaning, 22 years behind bars and 11 years on probation. That was the bargain. The defendant and the state and the district court understood it perfectly. Appellant got exactly what he wanted and the state got a long enough sentence to satisfy its interests in the administration of justice.

At his guilty plea hearing, appellant testified that the victim loaned him money, which he had not repaid. Appellant testified that the victim was putting pressure on him to repay the money. According to appellant, the victim arranged a meeting with him at an acquaintance's apartment through co-defendant Jonathan Wood, appellant's cousin. Wood and appellant decided to take a gun to the meeting and appellant retrieved a gun that he kept in a nearby vacant apartment.

During the meeting, the victim and appellant argued over the debt. Appellant testified that he attempted to repay the debt with jewelry rather than cash, but the victim refused. According to appellant's testimony, the victim threatened appellant and appellant's family. Appellant then shot the victim three times in the back, killing him. Appellant then stole the victim's wallet and briefcase and disposed of the weapon.

The district court imposed the sentence following Kilgore's guilty plea. Before imposing the sentence, the court stated:

All right, I do accept your waiver of your rights. I believe that they were knowing, intelligent, and voluntarily waived. There is a factual basis here to support a charge of Murder in the Second Degree – Intentional Murder, and ...


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