This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Donovan James Robinson, petitioner,


State of Minnesota,


Filed August 3, 2004

Reversed in part and remanded

Peterson, Judge


Washington County District Court

File No. K4017382


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3230 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Doug H. Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082-006 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


            In this appeal from the district court’s denial of his postconviction petition, appellant argues that (1) he was denied effective assistance of counsel when he withdrew his guilty plea; (2) the district court abdicated its responsibility by failing to inform him of alternative options to withdrawing his guilty plea; and (3) the evidence is insufficient to sustain his convictions.  We reverse in part and remand.


            Following an incident at the correctional facility in Stillwater, appellant Donovan James Robinson was charged with one count of aiding and abetting first-degree assault against a correctional employee and one count of aiding and abetting third-degree assault against a correctional employee in violation of Minn. Stat. §§ 609.221, subd. 2, 609.2231, subd. 3(1), 609.05 (2000).  Appellant later pleaded guilty to an amended count of third-degree assault.  Under the plea agreement, depending on his criminal-history score, appellant was to be sentenced to a term of either 27 or 30 months, which would run consecutively to the sentence he was serving at the time of the assault.

Before sentencing, appellant disputed when his sentence was to begin.  Appellant believed that, under the sentencing guidelines, his sentence would be consecutive to his supervised release date, rather than consecutive to the expiration date of the prison term that he was serving at the time of the assault.  When he learned otherwise, appellant made a motion to withdraw his plea.  Neither the district court nor appellant’s counsel advised appellant that he did not have to withdraw his guilty plea in order to challenge the alleged sentencing error because he had the right to challenge the sentence on appeal after pleading guilty.  The district court permitted appellant to withdraw his plea, and the case was tried without a jury after appellant waived his right to a jury trial.

The district court found appellant guilty of aiding and abetting first- and fourth-degree assault upon a correctional officer.  Appellant was sentenced to 161 months in prison, concurrent with the sentence that he was serving at the time of the incident.  Appellant filed an appeal from his conviction but later moved for and was granted a stay so that he could file a petition for postconviction relief.

In his petition for postconviction relief, appellant alleged that his decision to withdraw his guilty plea was not knowing, voluntary, and intelligent and that the district court should not have permitted the withdrawal.[1]  Alternatively, appellant argued that he received ineffective assistance of counsel when his attorney failed to inform him that he could challenge his sentence after pleading guilty without withdrawing his plea.  Appellant’s attorney admitted in an affidavit that he did not know that it was possible to appeal sentences imposed as a result of a plea agreement.  Appellant also challenged his conviction, arguing that the evidence was not sufficient to find him guilty of aiding and abetting first-degree assault.  The district court denied appellant’s petition, and this appeal followed.


Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).

Appellant argues that he was denied effective assistance of counsel when his attorney failed to advise him that he could challenge his sentence after pleading guilty.  Appellant asserts that had he been so advised, he would not have withdrawn his guilty plea.

To prevail on a claim that counsel was ineffective,

[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.”


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  “The reviewing court considers the totality of the evidence before the judge or jury in making this determination.  [The reviewing court] need not address both the performance and prejudice prongs if one is determinative.”  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citation omitted).  Ineffective-assistance-of-counsel claims, which involve mixed questions of law and fact, are reviewed de novo.  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).  “There is a strong presumption that counsel’s performance fell within a wide range of reasonable assistance.”  State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003) (quotation omitted).

            This analysis extends to challenges arising out of the plea process as a critical stage in criminal adjudication, warranting the same constitutional guarantee of effective assistance as trial proceedings.  See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S. Ct. 366, 369-70 (1985) (applying Strickland analysis to ineffective-assistance claims arising out of the plea process); State v. Erickson, 396 N.W.2d 265, 268-69 (Minn. App. 1986) (applying Strickland analysis to claim alleging ineffective assistance of counsel where appellant withdrew his guilty plea against his attorney’s advice), review denied (Minn. Dec. 12, 1986). 

In denying appellant’s postconviction petition, the district court found that appellant’s attorney failed to inform appellant that he had a right to appeal his sentence even if he accepted the plea offer.  The court determined that appellant’s attorney’s representation was reasonable and that appellant was not prejudiced:

The [c]ourt is unaware of any requirement which requires that a defendant should be told by his attorney that if he is confused about his plea bargain, he should plead anyway and rely upon the State Public Defender Office to bring an appeal. . . .  Further, it appears extremely unlikely that [appellant] would have prevailed on his appeal as a result of his misunderstanding of the sentencing requirements.


While there is no specific requirement that an attorney inform a client about every available appellate option, an attorney is expected to know the law and must give enough information to permit a defendant to make an informed decision whether to accept or reject a plea offer.  See Smith v. United States, 348 F.3d 545, 552-53 (6th Cir. 2003) (stating that “attorney has a clear obligation to fully inform her client of the available options” pertaining to sentencing prior to deciding whether to accept plea); United States v. Day, 969 F.2d 39, 43 (3rd Cir. 1992) (holding that defendant has right to make reasonably informed decision whether to accept a plea offer); State ex rel. Dehning v. Rigg, 251 Minn. 120, 123, 86 N.W.2d 723, 726 (1957) (stating that “accused is entitled to be advised as to all his legal rights under the law and facts involved”).

“Minnesota law gives a criminal defendant an unconditional right to appeal from any sentence imposed or stayed.”  Ballweber v. State, 457 N.W.2d 215, 217 (Minn. App. 1990); see also Minn. Stat. § 244.11 (2000) (appellate review of sentence).  Knowledge of this right may affect a defendant’s decision whether to accept or reject a plea offer, especially where a defendant’s sole concern is how his sentence is to be executed.  See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 322 (1948) (stating that “[p]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered”).

Appellant’s attorney’s affidavit supports the district court’s finding that appellant’s attorney failed to inform appellant of his right to appeal his sentence even if he accepted the plea offer.  Appellant’s attorney stated that he “did not advise [appellant] of his right to appeal because [he] did not believe that [appellant] could appeal a bargained-for sentence.”  Consequently, appellant’s attorney erroneously advised appellant that he had only two options, either accept the plea and sentence or withdraw his plea and go to trial.  We conclude that the district court’s finding that appellant’s attorney failed to advise appellant that he could challenge his sentence even if he accepted the plea offer compels a conclusion that the representation that appellant received fell below objective standards of reasonableness.  See Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988) (holding that incompetently counseled decision to go to trial falls within range of protection provided by Sixth Amendment right to effective counsel), vacated on other grounds, 492 U.S. 902, 109 S. Ct. 3208 (1989); Lewandowski v. Makel, 754 F. Supp. 1142, 1147 (W.D. Mich. 1990) (stating that failing to inform and advise client regarding potential plea negotiation options versus risks of trial falls below objective standards of reasonableness), aff’d, 948 F.2d 884 (6th Cir. 1991); Williams v. State, 605 A.2d 103, 108 (Md. 1992) (stating that defendant’s Sixth Amendment right to effective assistance of counsel is violated when attorney performs deficiently by providing defendant with incomplete or misleading information with regard to plea offer).

Appellant must also establish that he was prejudiced by his attorney’s deficient performance.  Gates, 398 N.W.2d at 561.  The district court found that appellant was not prejudiced because it was unlikely that he would have prevailed on an appeal challenging his sentence.  But the issue was not whether appellant would have prevailed in an appeal challenging his sentence, but whether, absent his counsel’s deficient advice, appellant would have withdrawn his guilty plea and proceeded to trial.  Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995); see Erickson, 396 N.W.2d at 269 (analyzing whether defendant would have accepted plea rather than going to trial in considering ineffective-assistance-of-counsel claim).  We, therefore, remand to the district court to determine whether the deficient advice that appellant received was a material inducement of appellant’s decision to withdraw his plea.  In light of our decision, we do not address appellant’s alternative arguments.

            Reversed in part and remanded.

[1] On appeal, appellant abandoned his claim that his guilty plea was not knowing, voluntary, and intelligent because he did not brief the issue.  Issues not briefed on appeal are deemed waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).