This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-196

 

State of Minnesota,

Respondent,

 

vs.

 

Samuel David Shoen,

Appellant.

 

Filed September 18, 2001

Reversed and remanded

Huspeni, Judge*

 

Dakota County District Court

File No. K1-99-002328

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

James C. Backstrom, Dakota County Attorney, Statia D. Hendrix, Phillip D. Prokopowicz, Assistant County Attorneys, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent) 

 

Daniel M. Mohs, The Colonnade, Suite 1025, 5500 Wayzata Boulevard, Minneapolis, MN 55416; and

 

Lisa Lodin Peralta, 205 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Appellant challenges the district court’s postconviction order denying his petition to withdraw his plea, claiming (1) his plea was not voluntary because he was denied effective assistance of counsel, and (2) his plea was not knowing because he was mistaken about the level of his sentencing exposure.  Appellant also argues that the prosecutor’s ex parte contacts with his probation officer violated appellant’s right to due process, warranting a new trial.  Because appellant’s attorney ineffectively assisted him, causing him prejudice, we reverse the district court’s order and remand for further proceedings.

FACTS

Appellant Samuel David Shoen hired a private attorney to represent him after being charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998), and felon in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1998).

A county community corrections officer (officer) prepared a pre-plea investigation report (PSI) that noted a mandatory minimum sentence of 60 months but contained a recommendation for a 36-month sentence.  On March 16, 2000, copies of the PSI were provided to the court, to Shoen’s attorney, and to the prosecutor.  Immediately after receiving the PSI, the prosecutor contacted the officer to tell him that she thought the relevant statute had changed and suggested that the statute be rechecked.  Upon rechecking, the officer modified the report to change the recommended sentence to 60 months.[1]  Rather than rewrite the entire report, the officer merely rewrote the page on which his sentencing recommendation appeared.  He then provided Shoen’s attorney with a copy of the page of the report containing the changed recommendation.

On March 20, 2000, Shoen hired a second attorney because he had a hearing the following day and had not heard from his first attorney for several months.  The following day, at the hearing, the officer gave copies of the report’s rewritten page to the court and prosecutor, telling them to substitute the rewritten page for the report’s original recommendation page. 

Although Shoen’s second attorney received a copy of the initial report with its original recommendation page from Shoen’s first attorney, the second attorney did not receive a copy of the report’s changed page.  The officer did not know Shoen had hired a second attorney and so did not provide this attorney with a copy of the rewritten page.  Shoen’s first attorney did not include a copy of the rewritten page when he turned Shoen’s file over to the second attorney, and the prosecutor did not include a copy of the rewritten page in the disclosure reports she submitted to Shoen’s second attorney. 

Prior to trial, Shoen’s second attorney met with the prosecutor and the district court judge in chambers to discuss a settlement.  After the meeting, Shoen’s second attorney told Shoen that if he pleaded guilty to the felon-in-possession charge, the prosecuting attorney would dismiss the assault charge.  He also assured Shoen that (1) the mandatory minimum of 60 months for the felon-in-possession charge was discretionary, and (2) the court would not sentence to more than the 36-month sentence recommended in the PSI report.  Shoen’s second attorney explained that during the plea hearing Shoen would have to acknowledge to the court that it could sentence him to 60 months because that was the sentence Shoen could receive if the court disagreed with the second attorney’s interpretation of the law regarding imposition of the mandatory minimum.[2]  Based on these assurances, Shoen agreed to plead guilty to the felon-in-possession charge.

At the plea hearing, Shoen acknowledged on the record that he understood that the mandatory minimum for the felon-in-possession charge was 60 months in prison and that a dispute existed about whether the court could waive the mandatory minimum.  Nothing was mentioned about the assurance of Shoen’s second attorney that, at most, Shoen would receive a 36-month sentence.  Also, at the time of the plea, Shoen’s second attorney still had not received a copy of the corrected PSI report, and, therefore, still did not know the recommendation had been changed from 36 to 60 months. 

            At the sentencing hearing on May 31, 2000, Shoen presented evidence to support downward departure.  Then, following arguments, the court sentenced Shoen to 60 months in prison. 

Immediately upon hearing the sentence, Shoen’s second attorney expressed his shock to the court, explaining that he had understood the sentence would be no more than 36 months as recommended in the PSI report.  The parties and the court then compared their copies of the report and discovered that copies in possession of the court and the prosecutor recommended 60 months while the copy in the possession of Shoen’s second attorney recommended 36 months.  The court was notified immediately that a motion would be filed seeking to withdraw the guilty plea. 

Shoen moved[3] to withdraw his plea, contending that his plea was not voluntary and intelligent.  He asserted that he entered his plea based on his belief that, at most, his sentence would be 36 months.  He claimed that he relied on the assurances of his second attorney that, based on the officer’s recommendation in the PSI report, he would receive no more than 36 months and that he would not have pleaded guilty had he known he could be sentenced to more than 36 months.

After a hearing, the court acknowledged that some confusion may have existed, stating:  

The 36-month sentence had been the initial recommendation of the probation department with respect to sentencing in this case.  That recommendation was changed to 60 months and at the time of the plea, defendant’s counsel had not received an updated copy of the corrected [PSI] report from Community Corrections.  The court, operating off of the updated pre-plea recommendation, supposedly advised counsel in chambers * * * that it would not depart from the recommendations in the report.

 

The court also acknowledged that some off-the-record confusion existed between counsel over whether the court had discretion regarding mandatory minimum sentencing in this case.  Nonetheless, the court found that Shoen’s plea was (1) accurate because he pleaded guilty to one of the counts in the complaint, (2) voluntary because the record showed that no one had made any threats or promises to get him to plead, and (3) intelligent because the record indicated that the mandatory minimum sentence of 60 months was mentioned four times during the plea and that the only promise made was that he would not be sentenced to more than 60 months.  As a result, the court denied Shoen’s motion to withdraw his guilty plea.

Following the denial of his initial motion, Shoen filed a renewed motion to withdraw his guilty plea.  This time Shoen claimed the prosecutor’s ex parte communications unduly influenced the officer’s testimony at the sentencing hearing.  After another hearing, the district court again denied Shoen’s motion to withdraw his guilty plea.  This appeal followed.

D E C I S I O N

 

The ultimate decision to allow an accused to withdraw a guilty plea is left to the district court’s sound discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  A reviewing court will reverse the district court’s decision only if the district court abused its discretion.  Id.  The scope of this court’s review is limited to determining “whether there is sufficient evidence to sustain the postconviction court’s findings.”  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).

A criminal defendant does not have an absolute right to withdraw a guilty plea.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But a criminal defendant may withdraw a guilty plea, even after sentencing, if the defendant shows that “withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1; State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.”  Alanis, 583 N.W.2d at 577. 

“The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements.”  Id.  A guilty plea may be rendered involuntary due to ineffective assistance of counsel.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). 

An attorney’s performance is presumed to be effective unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  State v. Powell, 578 N.W.2d 727, 731-32 (Minn. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984)).  To prevail on a claim of ineffective assistance of counsel, a claimant must show two things:  first, that his counsel’s performance fell below an objective standard of reasonableness, and second, that his counsel’s performance prejudiced the proceedings’ result.  Id. at 732.

Shoen first argues that he did not voluntarily waive his right to a jury trial because he was denied effective assistance of counsel.  He claims that his second attorney induced him to plead guilty by assuring him that he would receive no more than 36 months.  There is merit in Shoen’s argument.

Reasonableness

 

Shoen argues his second attorney’s performance fell below an objective standard of reasonableness because (1) he erroneously assured Shoen that he would be sentenced to 36 months if he pleaded guilty, and (2) he failed to make a proper record of Shoen’s understanding regarding the consequences of his guilty plea. 

While not precedential, we find persuasive the reasoning in our unpublished decision in State v. Nelson, No. C5-98-2278, 1999 WL 735896 (Minn. App. Sept. 21, 1999).  See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished decisions are of persuasive value “[a]t best” and not precedential). 

In Nelson, the parties met to discuss a settlement.  See Nelson, 1999 WL 735896, at *2.  After the discussion, Nelson waived his right to a jury trial, and the court sentenced him to 140 months, a double departure from the guidelines sentence.  Id.  After his new trial motion was denied, Nelson petitioned for postconviction relief, claiming that his waiver was invalid because his counsel induced him to plead guilty by telling him “that if he waived his right to a jury he would receive a guidelines sentence of between 40 and 70 months, depending on his criminal history score.”  Id.  At the postconviction hearing, “[t]hree experienced defense attorneys testified that this advice was objectively unreasonable given the discussions that preceded the waiver.”  Id.  Nonetheless, the court denied Nelson’s motion, stating that

Nelson’s waiver was knowing and intelligent because he was correctly informed of the terms of the waiver on the record by the court, the prosecutor, and his own counsel.

 

Id

On review, we agreed that “defense counsel’s performance fell below an objective standard of reasonableness because he misrepresented the nature of the proposed plea agreement in explaining it to [the defendant].”  Id. at *3.  We stated that

[d]efense counsel’s misrepresentations were patently erroneous and, standing alone, do not justify reliance in the outcome of the proceeding.  His performance, therefore, fell outside the wide range of professionally competent assistance required by the Sixth Amendment, even applying the strong presumption of competency. 

 

Id

In this case, Shoen’s second attorney candidly admitted that he repeatedly assured Shoen that if he pleaded guilty to the felon-in-possession charge he would receive no greater than 36 months.  Those assurances, although understandable given the regrettable mixup involving the crucial rewritten page of the PSI, were patently erroneous as evidenced by the sentence of 60 months Shoen actually received.  Surely, there is sufficient negligence to “go around” in this case.  Shoen’s first attorney shared responsibility to assure that his successor received all the information necessary to competently represent Shoen.  Without singling out other participants in the events surrounding the rewritten page, it is painfully clear that the system failed.  We believe that a manifest injustice would result if Shoen were forced to suffer the consequences of the mixup and the failure.

            The erroneous, if understandable, assurances of Shoen’s second attorney were exacerbated by the attorney’s failure to properly record his understanding with Shoen regarding sentencing.  See Lallier v. State, 403 N.W.2d 880, 884 (Minn. App. 1987) (“[D]efense attorneys [should] not [] tell clients what their sentence will be unless there is a plea bargain on the record stating a specific sentence.” (emphasis omitted)).  Had the record at the plea hearing contained that understanding, the mixup over 60 or 36 months would have been revealed, misunderstandings resolved, error corrected, and perhaps appeal avoided.

Prejudice

To succeed on a claim of ineffective assistance of counsel, Shoen must also show that his attorney’s deficiency so prejudiced him that it is likely that, but for the error, the proceeding’s outcome would have been different.  See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068); see also Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (stating that this court “may dispose of an ineffective assistance of counsel claim when the appellant fails to prove there was a reasonable probability the outcome would have been different”) (citations omitted); State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998) (stating that a finding of prejudice is made by determining whether under the totality of the circumstances, a different result would have been reached but for counsel’s error). 

The totality of the circumstances of the present case indicates that deficient performance of defense counsel affected Shoen’s decision to waive a jury trial.  Shoen presented evidence that, had he been properly advised, he would have discovered that he gained little, if anything, from the plea agreement and, therefore, he would not have pleaded guilty.  Because it is clear from the evidence that Shoen would have proceeded with a jury trial had he been properly advised, counsel’s performance prejudiced the results of the proceeding.

A fair preponderance of the evidence indicates that counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s assurances, Shoen would not have waived his right to a jury trial.  See State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (“A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.”).  The district court’s order denying Shoen’s requested relief must be reversed and this matter remanded for further proceedings.[4]

Shoen also argues that his plea was not intelligent.  An intelligent plea means “the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.”  Alanis, 583 N.W.2d at 577.  In view of our resolution of the issue of whether Shoen’s plea was voluntary, we need not reach the issue of the intelligence of his plea. 

            Finally, Shoen argues that the prosecutor’s ex parte communications with the officer who prepared the PSI report constituted prosecutorial misconduct that violated Shoen’s right to due process and warranted withdrawal of his guilty plea.  Again, because of our resolution of the voluntariness issue, it is not necessary for us to address whether the prosecutor’s behavior denied Shoen the right to due process of law.  The circumstances of this case, however, invite comment and underscore the perils of ex parte communication.  This case presents a graphic reminder of the importance of assuring that all parties to a proceeding are provided with all relevant information to permit each to discharge the responsibilities placed upon him or her.  With respect to the communications between the prosecutor and the officer, while we are not prepared to declare a violation of an ethical duty, can there be any doubt, on this record, that notification to opposing counsel when contact was made would have been the far better practice?  

            Reversed and remanded

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  The prosecutor contacted the officer a second time to complain that the recommended sentence was too lenient.

[2]  Although the state initially disagreed with the assessment of Shoen’s second attorney regarding whether the court had discretion to depart from the mandatory minimum, by the time of sentencing the state agreed that the court had such discretion.

 

[3]  This document more properly would have been captioned a petition.

 

[4]  On remand, appellant understands that he may stand trial on all charges as originally brought.