Bilbro v. State
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Bilbro v. State
Opinion of the Court
*10In 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 ,
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 ,
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 *11version 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
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 ,
The court of appeals affirmed in part, reversed in part, and remanded. Bilbro ,
*12(quoting
Bilbro petitioned for review solely on the issue of whether his consecutive sentences were an unlawful upward departure, which we granted. The State did not file a cross-petition for review. During the briefing, Bilbro moved to strike the State's brief, in whole or in part, claiming that portions of the State's arguments were procedurally barred because they addressed issues that were not contained in his petition for review and the State had not filed a cross-petition for review. Following oral argument, we granted the motion to strike. Bilbro ,
ANALYSIS
I.
We first consider Bilbro's claim that the State failed to preserve its argument that the court of appeals erroneously reversed the district court's determination construing Bilbro's motion as a petition for postconviction relief. Bilbro contends that the rules of criminal procedure do not allow the State to raise the postconviction argument in its brief because the State did not seek, and we did not grant, review of this issue. The State responds that Rule 29.04, subdivision 6, permits it to raise the postconviction argument even though it did not file a cross-petition.
In a criminal appeal in which discretionary review is sought, a respondent is not required to respond to a petition for review, and a decision to forego a response is not held against the respondent. Minn. R. Crim. P. 29.04, subd. 5 (stating that failure "to respond to the petition will not be considered agreement with it"). Moreover, we may "permit a party, without filing a cross-petition, to defend a decision or judgment on any ground that the law and record permit that would not expand the relief that has been granted to the party."
Under the specific facts of this case, we conclude that Rule 29.04, subdivision 6, does not allow the State to argue that the court of appeals erred when it reversed the district court's determination that Bilbro's motion must be construed as an untimely postconviction petition. The court of appeals considered and rejected the State's argument that under our decision in Coles ,
The State renews its Coles argument here and asks us to reinstate the district court's dismissal of Bilbro's motion as time-barred under the postconviction statute.
The State's Coles argument, if successful, would also impermissibly "expand the relief" that it received under the court of appeals' decision. Minn. R. Crim. P. 29.04, subd. 6 (stating that a party can defend on "any ground" supported by the law or the record "that would not expand the relief that has been granted to the party"). The court of appeals reversed the 10-year conditional-release period included as part of Bilbro's sentence for attempted second-degree murder, concluding that it was "unauthorized by law," and ordered the district court to vacate it on remand. Bilbro ,
Because the State's Coles argument does not defend the decision of the court of appeals, and if successful, would expand the relief that the State was granted under the court of appeals' decision, it may not be raised under Rule 29.04, subdivision 6. The State failed to raise its Coles argument in a cross-petition. Accordingly, we do not consider the argument here.
II.
Having resolved the threshold question, we consider Bilbro's claim that his consecutive sentences are not authorized by law based on the sentencing guidelines that apply to his offenses. The interpretation of the sentencing guidelines is a legal question that we review de novo. State v. Jones ,
When the meaning of the sentencing guidelines is in question, we follow the usual principles of statutory interpretation. Id . If the language of the guidelines is unambiguous, that language controls. State v. Campbell ,
The August 1, 2007, sentencing guidelines ("2007 Guidelines") govern Bilbro's claim because those guidelines were in effect when he committed his offenses in February 2008. See Minn. Sent. Guidelines (2007); see also Kirby ,
A court may deviate from a presumptive sentence. Minn. Sent. Guidelines II.D (2007). Doing so is considered a departure under the guidelines that must be accompanied by reasons that provide "identifiable, substantial, and compelling circumstances to support" the departure.
The 2007 Guidelines list seven categories of convictions that are eligible for permissive consecutive sentences, meaning that they "may be given without [a] departure."
Rather than argue that the plain language of the guidelines is ambiguous, the State urges us to read the Guidelines as authorizing Bilbro's consecutive sentences for two reasons. Neither argument is availing.
First, the State contends that omission of attempted second-degree murder from section VI was a drafting error and, if accepted, would lead to absurd results. The State asserts that later versions of the guidelines specifically include attempted second-degree murder and show that the offense's omission from the 2007 Guidelines was simply an oversight by the Minnesota Sentencing Guidelines Commission. See Minn. Sent. Guidelines VI (2009).
Examination of the other crimes listed in section VI shows that omission of attempt crimes may well have been intentional. The 2007 Guidelines exclude all attempt crimes from section VI, except for attempted first-degree murder. Minn. Sent. Guidelines VI (2007). It is plausible that the Sentencing Commission made this choice to recognize that only the most *15severe attempt crimes should be eligible for consecutive sentencing because "consecutive sentences are [a] particularly severe punishment." Campbell ,
Even if the State were correct, however, we do not consider legislative history or the canons of construction-such as the scrivener's error canon and the canon against absurdity invoked by the State here-unless it has been shown that the guidelines' language is ambiguous. See, e.g. , Kirby ,
Second, the State asserts that the 2007 Guidelines do not consider attempt crimes as separate offenses; rather, they are "sentence modifier[s]" under section II.G of the 2007 Guidelines. Under this interpretation, the State claims that Bilbro may be sentenced consecutively because the completed crime of second-degree murder appears on the section VI list.
The State cites no support for this understanding of section II.G, and we have never applied it this way. Section II.G simply provides that the presumptive duration of a sentence for an attempt crime is half the duration of the sentence for the completed crime. See Minn. Sent. Guidelines II.G. The presumptive length of Bilbro's sentence for attempted second-degree murder, however, does not affect the sentencing court's separate decision about whether that sentence should run concurrently or consecutively to his sentence for another crime, in this case, second-degree criminal sexual conduct. See Jones ,
In sum, because no ambiguity exists in the language of section II.F and section VI of the applicable 2007 Guidelines, we conclude that Bilbro's consecutive sentences were a departure from the guidelines. Because the sentences were a departure, they required written reasons that "specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence." Blanche ,
Here, the record is devoid of reasons for departure. "If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed." Williams v. State ,
CONCLUSION
For the foregoing reasons, the decision by the court of appeals is reversed and this case is remanded to the district court for resentencing consistent with this opinion.
Reversed and remanded.
Dissenting, McKeig, J.
Here, the State filed a letter informing us that it "agree[d] with the Court of Appeals' analysis" and "oppose[s] the Petition and will respond if this Court so orders." By stating in its letter that it agreed with the court of appeals, the State may have led Bilbro to believe that it agreed with the court of appeals' reasoning that Bilbro could bring his claims in a motion to correct his sentence. Although "no response" letters are helpful and appropriate, parties filing such letters should exercise caution with the language used. A simple statement that the respondent will not be filing a response to the petition for review suffices.
The dissent argues that our decision in State v. Stanke ,
Bilbro's offenses do not fit under any of the provisions for presumptive consecutive sentences. Minn. Sent. Guidelines II.F.
The following language was added to section VI in 2009: "Convictions for attempted offenses or conspiracies to commit offenses listed below are eligible for permissive consecutive sentences as well as convictions for completed offenses." Minn. Sent. Guidelines VI (2009). The current version of the guidelines contains the same language. See Minn. Sent. Guidelines 6.A.
Although the State does not argue this point, the court of appeals relied upon our decision in State v. Richardson ,
Dissenting Opinion
Melvin Bilbro admitted to intentionally stabbing his girlfriend in the forehead, which caused her to be permanently blind in one eye. Bilbro also admitted that after he attacked his girlfriend, he touched the vagina of his girlfriend's 11-year-old daughter. Bilbro admitted that he was guilty of these acts and agreed to accept the sentences that the court imposed. At the plea hearing, the prosecutor noted that "[i]n exchange for that plea, the State ... waive[d] any Blakely issues it ha[d] and dismiss[ed] the other two counts of the Complaint." Both Bilbro and the State believed that he faced possible consecutive sentences for those two separate acts against separate victims, but in waiving Blakely issues, the State forfeited its ability to pursue longer sentences for the convictions.
The district court sentenced Bilbro to consecutive sentences totaling 199 months' imprisonment and 10 years of conditional release. Bilbro accepted that sentence and waited nearly a decade after his plea agreement and sentencing to file a motion to change that sentence. The district court concluded that this motion was time barred because it was in fact a challenge to Bilbro's negotiated plea agreement. See
I.
The State is permitted, under Minn. R. Crim. P. 29.04, subd. 6, and State v. Stanke ,
The majority's attempts to distinguish Stanke are not persuasive because in Stanke , we permitted the State's defense of the district court decision. In both cases, the district court ruled in favor of the State on an issue and the defendant appealed. In both cases, the court of appeals reversed the district court on an issue and the defendant petitioned for review. And in both cases, the State did not file a petition for review or a cross-petition for review on the issue that the court of appeals reversed. In Stanke , we held that the State was not seeking to expand the relief granted to it because it was defending a district court decision that the court of appeals partially reversed.
II.
Because I would consider the State's arguments, I next address whether Bilbro's motion was properly construed as a petition for postconviction relief by the district court. The court of appeals held that it was not a postconviction petition because the State had described the plea deal as a "straight plea" to the district court judge. Bilbro ,
The court of appeals distinguished Coles because, there, the State and the defendant had negotiated for a specific sentence. Bilbro ,
III.
Because Bilbro's motion is in fact a petition for postconviction relief, it is barred by the statutory time limits. A petition for *18postconviction relief must be filed within two years of entry of judgment of conviction.
For the foregoing reasons, I respectfully dissent.
Reference
- Full Case Name
- Melvin BILBRO v. STATE of Minnesota
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- Published