State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-2044

State of Minnesota,
Respondent,

vs.

Chad Arthur Gilfillan,
Appellant.

Filed December 22, 2025
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-22-13999

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max B. Kittel, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bond, Presiding Judge; Ross, Judge; and Larkin, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Chad Gilfillan pleaded guilty to five counts of possessing child pornography. His
testimony during the plea colloquy established that each count involved a different victim,
but it did not specify when the offenses occurred. The district court applied State v.
Hernandez, 311 N.W.2d 478 (Minn. 1981), “Hernandizing” each count and sentencing
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Gilfillan to serve concurrent terms of 24, 36, 60, 78, and 102 months, followed by five
years of conditional release. Gilfillan appeals, arguing that the district court erred by
Hernandizing more than two counts because the record does not establish that the offenses
arose from separate behavioral incidents. Because the state did not meet its burden to justify
its application of Hernandez, the district court imposed an erroneous sentence. We
therefore reverse and remand for resentencing.
FACTS
The state charged Chad Gilfillan in 2022 with five counts of possessing child
pornography involving a minor under 14 years of age and five counts of possessing child
pornography on an electronic device. See Minn. Stat. § 617.247, subd. 4(b)(3) (2021);
Minn. Stat. § 617.247, subd. 4(a) (2021). The complaint identifies November 9, 2021, as
the offense date for every count and describes each offense as occurring “on or about dates
between 11/9/2021 and 12/2/2021.”
Gilfillan sought to plead guilty and filed a plea petition admitting to five counts of
child-pornography possession involving a minor under 14 in exchange for the state’s
agreement to dismiss the remaining counts. The following exchange occurred between the
district court and Gilfillan at his plea hearing:
Q: [H]ow do you plead to count 1, possession of a
pornographic work depicting a minor under the age of 14 years
from on or about the range stated in the complaint, guilty or
not guilty?
A: Guilty.
Q: How do you plead to count 2, same charge, different date,
guilty or not guilty?
A: Guilty.
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Q: How do you plead to count 3, same charge, again a
different date, guilty or not guilty?
A: Guilty.
(Emphasis added.) The district court repeated the same question in substance regarding the
remaining counts. Gilfillan had not yet been sworn in to testify.
Gilfillan then testified under oath to establish a factual basis for his plea. He testified
that “[a]t some point” while he lived in St. Louis Park in November and December 2021,
a person discovered multiple SIM cards among his possessions. Gilfillan testified that
police “[e]ventually” obtained the SIM cards and that they contained two images and three
videos of minors in sexual positions, each depicting a different victim under the age of 14.
The district court reserved its decision of whether to accept Gilfillan’s plea, and it ordered
a presentence investigation (PSI).
Hennepin County conducted the PSI and prepared a report . The report stated the
county’s understanding of the plea deal was that, because “each count involves separate
victims,” Gilfillan “shall be sentenced in order of Counts I – V, concurrent and
Hernandized.” The report recommended the following sentence: a stayed 24-month term
on count one based on a criminal -history score of zero points; a stayed 36-month term on
count two based on a score of 1.5 points rounded down to one; an imposed 60-month term
on count three based on a score of three points; an imposed 78-month term on count four
based on a score of 4.5 points rounded down to four; and an imposed 120-month term on
count five based on a score of six points, all to run concurrently, followed by five years of
conditional release. The district court sentenced Gilfillan as the county recommended,
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except it imposed a 102-month sentence on the final count. And at Gilfillan’s request, the
court executed the presumptively stayed sentence.
Gilfillan appeals.
DECISION
Gilfillan appeals from the district court’s sentence. We may correct an illegal
sentence at any time. Minn. R. Crim. P. 27.03, subd. 9. A sentence based on an incorrect
criminal-history score is illegal. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007).
Gilfillan specifically challenges the criminal-history score, which resulted from the district
court’s decision to Hernandize his offenses. We consider de novo the legal issue of an
appellant’s criminal-history-score calculation. State v. Williams, 771 N.W.2d 514, 520
(Minn. 2009). Our de novo review leads us to reverse.
Gilfillan maintains that the district court erred by Hernandizing more than two of
his five counts, inflating his criminal-history score. The Hernandez sentencing method
allows courts, when issuing a sentence on the same day addressing multiple offenses, to
add the first offense or offenses sentenced into the criminal-history score for the sentence
for the remaining offenses. Hernandez, 311 N.W.2d at 480–81; see also Williams, 771
N.W.2d at 521–22 (explaining the method). When Hernandizing counts arising from the
same course of conduct but involving multiple victims, courts may incorporate the
criminal-history score of only the two most- severe offenses. Minn. Sent’g Guidelines
2.B.1.e.2 (2021). Offenses arise from the same course of conduct when they occur “at
substantially the same time and place and were motivated by a single criminal objective.”
State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). The burden falls to the state to prove
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by a preponderance of the evidence that multiple offenses did not occur as part of the same
course of conduct. State v. Williams, 608 N.W.2d 837, 841–42 (Minn. 2000). The parties
do not dispute that Gilfillan’s offenses involved five separate victims, so we turn to whether
the state met its burden to establish that the offenses arose from separate behavioral
incidents.
Our review informs us of three deficiencies. The first is that the state failed to
establish that the offenses occurred at different times. Gilfillan’s plea testimony established
only that he came into possession of the pornography “[a]t some point” while he lived in
St. Louis Park during the last two months of 2021. He never offered any dates establishing
when he downloaded or otherwise came to possess the pornography, and he did not say he
acquired it on different dates. We are unmoved by the state’s cha racterization that the
district court “specifically asked about different offense dates[.]” It is true that the district
court provided the editorial guidance of “same charge, different date” while it led Gilfillan
to offer a plea to each charge of the complaint. But the district court’s description of the
charge and Gilfillan’s unsworn oral plea of guilty to each cannot substitute for the factual
basis for a plea , which consists of the defendant’s sworn admissions and the record
evidence that he expressly acknowledges under oath. Rosendahl v. State, 955 N.W.2d 294,
301 (Minn. App. 2021); see, e.g. , State v. Ecker, 524 N.W.2d 712, 716–17 (Minn. 1994)
(distinguishing the factual basis of straight pleas from Alford and Norgaard pleas); Lussier
v. State, 821 N.W.2d 581, 585, 588–89 (Minn. 2012) (stating that grand-jury transcript may
supplement plea colloquy where it was admitted at plea hearing and acknowledged by
defendant); State v. Trott, 338 N.W.2d 248, 251–52 (Minn. 1983) (holding that the function
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of the record during a guilty plea is to ensure that a defendant is not admitting to a more-
serious crime). We hold that the state did not establish that Gilfillan’s offenses occurred at
different times.
We conclude, second, that the state failed to establish that Gilfillan’s offenses
occurred in different places. The state suggests that, because Gilfillan’s child pornography
was stored across multiple SIM cards, the offenses occurred in different places. But
Gilfillan did not admit that the seized SIM cards all contained child pornography. Nor did
he discuss which of them contained the material that was the subject of his guilty plea. And
even assuming that the illicit materials were stored on different SIM cards, the negligible
distinction between an image being stored in digital form on one card and a different image
being stored on another card found in the same physical location within Gilfillan’s home
is too intangible for us to conclude that each image or video was kept in a different “place.”
See State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (identifying the “place” where the
defendant committed multiple child-pornography offenses as “his bedroom in his mother’s
house”). The state failed to meet its different-place burden.
And we hold, third, that the state failed to prove that the offenses did not share a
criminal objective. The timing of the different offenses that serve a common purpose is
probative as to whether they comprise a shared criminal objective. Id. at 271 n.5. The
parties agree that these offenses served the same criminal objective of Gilfillan’s sexual
gratification. The state fails on this element by asserting that the offenses repeatedly served
this objective over time. The assertion has no factual support since the state never
established that Gilfillan came to possess the materials at different times. Given the state’s
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evidentiary failure, it has not rebutted the presumption that the offenses arose from the
same behavioral incident.
We are not persuaded otherwise by the state’s emphasis that the PSI report
referenced an agreement to Hernandized sentencing and that Gilfillan did not argue that
his behavior arose from a single behavioral incident. At most, this circumstantial evidence
informs us that Gilfillan understood that the counts would be Hernandized. But his
understanding does not relieve the state of its burden of proof.
Nor are we persuaded by the state’s comparison of this case to Bakken, because the
state overlooks the different evidentiary issues at play. The Bakken court held that the state
proved that a defendant’s child-pornography offenses were separate behavioral incidents
because he admitted to downloading images on separate dates such that their repetition
proved they served the same criminal objective multiple times. Id. at 270–72. But Gilfillan
did not testify that he downloaded the material on different dates. Bakken is inapposite.
In sum, we hold that the state failed to prove that Gilfillan’s offenses arose from
separate behavioral incidents. The district court therefore erred by Hernandizing more than
Gilfillan’s two most-severe counts. We reverse and remand for resentencing.
Reversed and remanded.