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Bilbro v. State

Supreme Court of Minnesota

May 8, 2019

Melvin Bilbro, Appellant,
v.
State of Minnesota, Respondent.

          Court of Appeals Office of Appellate Courts

          Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

          Chutich, J. Dissenting, McKeig, J.

         SYLLABUS

         1. 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.

          2. 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 law.

          OPINION

          CHUTICH, JUSTICE.

         In July 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 for review.

         In an 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.

         Bilbro's 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.

         On the 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.

         Concerning 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 resentencing.

         FACTS

         In May 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.

         At the 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.

         The 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.

         In July 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).

         The 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 ...


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