Bilbro v. State, A17-1566

Published: Dec. 3, 2018, 3 p.m.

b'Respondent State of Minnesota charged appellant Melvin Bilbro with committing attempted second-degree murder, first-degree assault, and second-degree assault against one victim and committing second-degree criminal sexual conduct against a second victim during a February 2008 incident. Pursuant to a plea agreement, Bilbro pleaded guilty to attempted second-degree murder and second-degree criminal sexual conduct. There was no agreement as to sentence. The State agreed to waive any issues it had with respect to an aggravated sentencing departure and dismiss the other two counts. At a September 2008 hearing, the district court sentenced Bilbro to 163 months for attempted second-degree murder and to a consecutive 36-month sentence for second-degree criminal sexual conduct.\\n\\nIn July 2017, Bilbro filed a motion to correct his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9. Bilbro argued, in part, that his consecutive sentences were not authorized by law because they constituted an upward departure under the 2007 Minnesota Sentencing Guidelines and the district court stated no reason for departing at the time of sentencing.\\n\\nThe district court denied Bilbro\\u2019s motion. It held that Bilbro had to bring his claims in a petition for postconviction relief and that such a petition was time-barred by Minn. Stat. \\xa7 590.01, subd. 4 (2016). It also concluded that Bilbro\\u2019s claims were meritless. The court of appeals affirmed. It concluded that Bilbro could bring his claims in a motion to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, but that consecutive sentencing was permissive, and not an upward departure, because Bilbro committed his offenses against different people.\\n\\nOn appeal to the supreme court, the issues presented in the parties\\u2019 briefs are (1) whether Bilbro was required to bring his claims in a petition for postconviction relief, which would be time-barred; (2) whether Bilbro\\u2019s only remedy is withdrawal of his guilty plea; and (3) whether imposition of consecutive sentences constituted an upward departure based on the 2007 Minnesota Sentencing Guidelines. (Hennepin County)'