of Appeals Office of Appellate Courts
Cathryn Middlebrook, Chief Appellate Public Defender, F.
Richard Gallo, Assistant State Public Defender, Saint Paul,
Minnesota, for appellant.
Ellison, Attorney General, Saint Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Brittany D. Lawonn,
Assistant Hennepin County Attorney, Minneapolis, Minnesota,
Chutich, J. Dissenting, McKeig, J.
Absent a cross-petition for review, Minnesota Rule of
Criminal Procedure 29.04, subdivision 6, does not allow a
respondent to assert that the court of appeals erred in
reversing a district court determination if that assertion
does not defend the decision of the appellate court and, if
successful, would provide respondent greater relief than was
granted by that court.
Under Minnesota Sentencing Guidelines section II.F (2007),
consecutive sentences for appellant's offenses were a
departure for which the district court had to provide written
reasons; in the absence of those written reasons,
appellant's consecutive sentences are unauthorized by
2017, appellant Melvin Bilbro filed a motion to correct his
criminal sentences under Rule 27.03, subdivision 9, of the
Minnesota Rules of Criminal Procedure. He contended, in part,
that his consecutive sentences were unauthorized by law.
Relying on State v. Coles, 862 N.W.2d 477 (Minn.
2015), the district court construed Bilbro's motion as a
petition for postconviction relief, which it denied as
untimely without holding a hearing. The court of appeals
reversed the district court's determination that
Bilbro's motion must be construed as a postconviction
petition, but it affirmed the consecutive sentences. See
Bilbro v. State, No. A17-1566, 2018 WL 3340453
(Minn.App. July 9, 2018). We granted Bilbro's petition
order filed after oral argument, we reversed the decision of
the court of appeals, remanded the case to the district court
for imposition of concurrent sentences, and retained
jurisdiction solely for the purpose of filing this opinion.
Bilbro v. State, 920 N.W.2d 836, 836-37 (Minn.
2018). On December 12, 2018, the district court entered an
order modifying Bilbro's sentences to run concurrently
and vacating his 10-year conditional release period.
appeal here presents two questions. The first is whether
under Rule 29.04, subdivision 6, of the Minnesota Rules of
Criminal Procedure, the State may assert, without seeking
review, that the court of appeals erroneously reversed the
district court's determination that construed
Bilbro's motion as a postconviction petition. The second
is whether Bilbro's consecutive sentences were
unauthorized by law.
first question, we conclude that Rule 29.04, subdivision 6,
does not allow the State to argue for a position that would
"expand the relief that has been granted to the
party." Minn. R. Crim. P. 29.04, subd. 6.
Consequently, the State was required to raise the
postconviction-petition claim in a cross-petition for review,
rather than in its responsive brief.
the second question, we conclude that Bilbro's
consecutive sentences were not authorized by law because they
were an upward departure from the presumptive sentence under
the applicable version of the guidelines, Minn. Sent.
Guidelines II.F (2007), and the district court failed to give
any reason justifying the departure. Because the court of
appeals erred when it concluded that Bilbro's consecutive
sentences were authorized by law, we reverse the decision of
the court of appeals and remand to the district court for
2008, Bilbro pleaded guilty to attempted second-degree murder
and second-degree criminal sexual conduct. See Minn.
Stat. §§ 609.17, .19 (2018) (attempted second
degree murder); Minn. Stat. § 609.343, subd. 1(a) (2018)
(second-degree criminal sexual conduct). In a plea agreement,
the State agreed to dismiss two additional charges and not to
request a trial on facts related to an enhanced sentence. The
parties did not agree as to Bilbro's sentence.
plea hearing, Bilbro admitted that in the early morning of
February 6, 2008, he stabbed his then-girlfriend in the
forehead, causing her permanent blindness in one eye. He
admitted that he acted intentionally and that his acts were
substantial acts that could have caused his girlfriend to
die. Finally, he admitted to having sexual contact with his
girlfriend's 11-year-old daughter that same morning.
district court accepted Bilbro's guilty plea and
convicted him of both offenses. At the sentencing hearing,
Bilbro asked that his sentences run concurrently. The
district court imposed Bilbro's sentences consecutively,
however. For the attempted second-degree murder conviction,
Bilbro received the presumptive guideline sentence of 163
months in prison. He received a presumptive guideline
sentence of 36 months in prison for the
criminal-sexual-conduct conviction. The court also imposed a
10-year term of conditional release on both sentences.
2017, Bilbro filed a motion to correct his sentence under
Minnesota Rule of Criminal Procedure 27.03, subdivision 9.
Bilbro argued that, under the Minnesota Sentencing Guidelines
in effect when he committed his offenses, consecutive
sentences were an unlawful upward departure and that the
conditional-release term included as part of his attempted
second-degree murder sentence was not authorized by law.
Relying on Coles, 862 N.W.2d at 480, the district
court determined that Bilbro's motion must be construed
as a petition for postconviction relief because it attacked a
sentence that was imposed as part of a negotiated plea
agreement. The court then summarily dismissed the petition as
untimely under the 2-year postconviction statute of
limitations, Minn. Stat. § 590.01, subd. 4 (2018).
court of appeals affirmed in part, reversed in part, and
remanded. Bilbro, 2018 WL 3340453, at *3-4.
Specifically, the court of appeals reversed the district
court's determination that Bilbro's motion must be
construed as a postconviction petition, concluding that the
motion did not challenge the substance of the plea agreement.
Id. at *2. Then, turning to the merits of
Bilbro's motion, the court of appeals held that the
10-year conditional-release term included as part of his
sentence for attempted second-degree murder was not
authorized by law and must be vacated on remand. Id.
at *3. Finally, the court acknowledged "that attempted
second-degree murder was not listed as an offense eligible
for permissive consecutive sentences" under the
applicable guidelines, but it held that State v.
Richardson gave the district ...