This opinion will be unpublished and
may not be cited except as provided by
Filed February 8, 2005
Reversed and remanded
Hennepin County District Court
File No. 01019306
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.
On appeal from denial of post-conviction relief, appellant claims ineffective assistance of counsel for his defense counsel’s failure to file an appeal from his conviction and sentence. Because the district court did not make sufficient findings pursuant to Roe v. Flores-Ortega,528 U.S. 470, 477, 120 S. Ct. 1029, 1034 (2000), regarding defense counsel’s possible failure to consult with appellant regarding an appeal, we reverse and remand.
In February of 2001, a confidential, reliable informant (CRI) acting under the direction and control of the Drug Enforcement Administration, purchased more than 10 grams of cocaine on two separate occasions from appellant Francisco Morales. The state charged Morales with one count of conspiracy to commit a controlled-substance crime and two counts of controlled-substance crime-sale, in the first degree, pursuant to Minn. Stat. § 152.021, subd. 1 (2000). In January 2002, Morales appeared with his attorney, Kenneth Bottema, and a Spanish interpreter before the district court judge and waived his right to a jury trial for a stipulated facts trial. Apparently, in exchange for waiver of the jury trial, the state agreed to dismiss the conspiracy charge and to pursue a maximum 60-month sentence.
The judge sentenced Morales to 60 months, tacking on Morales’s time spent in federal prison for his violation of parole as part of the total 60 months. The judge did not inform Morales that he had a right to appeal.
In August of 2002, Morales sent a letter to Bottema inquiring about the status of his appellate brief. Bottema wrote back indicating that he had not filed an appeal because Morales received a very favorable sentence, and because Bottema did not believe there was a reason to appeal. Morales attempted to file a pro se appeal in October of 2002, but he learned that his appeal failed as untimely.
Morales proceeded pro se with a post-conviction relief petition, where he raised an ineffective assistance of counsel claim for failing to file an appeal per his instructions. At the evidentiary hearing, Bottema testified that:
The only time the appeal came up was prior to his plea. He had asked the issue of appealing the search warrant and that is when I explained to him there is no evidence obtained as a result. There is nothing to appeal. There is not an appellate issue. The remedy seeking (sic) from the Court of Appeals would be evidence exclusion and there was no evidence obtained, so there is no remedy, nothing to appeal.
Bottema also testified that he had spoken at length with Morales regarding strategy. Bottema also explained that Morales retained him for $1,000, and they had agreed on a total fee of $5,000. Morales did not testify.
The district court denied Morales’s petition. The district court found that Bottema did not have a legal obligation to represent Morales after the conviction. The court also denied relief because, even if Bottema represented Morales after the sentencing, Morales did not defeat the presumption that his counsel acted effectively because his potential appellate claims were without merit. The appeal to this court requests that the lower court be reversed and Morales be granted an opportunity to appeal the judgment of conviction.
A. Standard of review
Absent an abuse of discretion, a postconviction court’s decision will not be disturbed. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). On appeal from postconviction proceedings, this court’s review of the district court’s findings of fact is limited to determining whether they are supported by the evidence. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).
B. Ineffective assistance of counsel
The Supreme Court has stated that the Sixth Amendment right to counsel is “the right to the effective assistance of counsel.” Rainer, 502 N.W.2d at 787 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970)). Minnesota courts follow the test set forth under Strickland v. Washington for ineffective assistance of counsel claims: a defendant must show by a preponderance of the evidence that (1) his counsel’s representation fell below an “objective standard of reasonableness”; and (2) there is a reasonable probability that, but for counsel’s performance, the result of the proceeding would have been different. 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Generally, the test for the objective standard of reasonableness is met when the attorney “exercis[es] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (quotation omitted).
Morales states that the “limited issue on appeal is whether defense counsel Bottema was ineffective for failing to file a notice of appeal for Morales or to consult with him about his right to appeal.” In fact, we find this inquiry to be limited only to whether Bottema consulted with Morales about his right to appeal. The United States Supreme Court determined in Roe v. Flores-Ortega,528 U.S. 470, 477, 120 S. Ct. 1029, 1034 (2000), that Strickland applies to claims of ineffective assistance of counsel for failing to file a notice of appeal—but such claims rest on the threshold question of whether defense counsel failed to consult with the defendant.
It has been “long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Id. at 477, 120 S. Ct. at 1035 (citing Rodriquez v. United States, 395 U.S. 327, 89 S. Ct. 1715 (1969)). But the Court in Flores-Ortega resolved the specific issue of whether counsel is deficient for not filing an appeal when the defendant has not clearly conveyed his or her wishes about the matter. Id. Because of the variety of circumstances faced by defense counsel, each case must be examined as of the time of defense counsel’s conduct and scrutiny of counsel’s conduct must be highly deferential. Id. at 477, 120 S. Ct. at 1034-35; see also State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (stating presumption that there is a “wide range of reasonable assistance” and great deference is given to counsel regarding decisions of trial strategy).
C. Consultation about appeal
The Supreme Court explained how the inquiry regarding failing to file an appeal begins:
In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal.
Flores-Ortega, 528 U.S. at 478, 120 S. Ct. at 1035. “Consult” is defined by the Court as “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Id. If counsel consults with the defendant and receives instructions to file an appeal, or the defendant simply gives express instructions to file an appeal, and then counsel does not file the appeal per the defendant’s request, the first prong of Strickland is fulfilled as counsel has acted in a professionally unreasonable manner. Id. But if defense counsel fails to consult with the defendant at all, the question is whether the failure to consult is itself a deficient performance. Id.
The district court here did not apply Flores-Ortega or determine whether Bottema consulted with Morales. The record does not show any evidence of a conversation between Bottema and Morales involving the advantages or disadvantages of an appeal after the judge found Morales guilty, or any evidence that Bottema made an effort to discover Morales’s wishes. Though Morales now argues that his letter to Bottema, and their conversation regarding appealing the search warrant (which occurred prior to the trial) show evidence of an instruction to appeal, the state argues that Bottema’s discussion about the search warrant and their general conversations of trial strategy show that there was nothing to appeal. The state does not explicitly argue that Bottema “consulted” under Flores-Ortega. Because the district court did not reach a conclusion on this issue, we cannot review the district court’s findings on the matter, or its application of Flores-Ortega.
The district court found instead that Bottema agreed to represent Morales only through the completion of trial and sentencing, though the district court could not determine whether Bottema represented Morales as a public defender or privately retained counsel. As the record indicates, Bottema and Morales agreed to a $5,000 fee, and Morales paid at least $1,000 of the fee, we do not see how Bottema worked for Morales as anything but a private attorney.
The district court found that, because Bottema only represented Morales through the sentencing, Bottema had no obligation to pursue an appeal and he rendered objectively reasonable assistance. The district court stated that “[i]f Morales had wanted to pursue an appeal, he needed to either contact the Office of the State Public Defender or hire private appellate counsel. The record and testimony indicate that he took neither action.” This statement goes to the crux of the Flores-Ortega inquiry. Without a consultation, Morales had no way of knowing if he had any valid arguments for appeal—he was essentially denied the chance for an appellate proceeding. As Morales did not testify, and the record is empty of facts that can determine the issue, we remand to the district court to gather facts and to find whether Bottema and Morales “consulted” per the requirement of Flores-Ortega. See, e.g., Solis v. United States, 252 F.3d 289, 294 (3rd Cir. 2001) (remanding to determine if defendant requested or had interest in pursuing an appeal). There, the district court can make a credibility determination as to whether or not a consultation in fact occurred. See e.g., Kamara v. State, 671 N.W.2d 811, 814 (N.D. 2003) (explaining that the court makes a determination about consultation at the evidentiary hearing); see also State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (noting that a reviewing court gives deference to the credibility assessment of the district court), review denied (Minn. June 11, 1997).
D. Deficient performance inquiry
If the district court finds that Bottema consulted with Morales and explicitly ignored instructions to file an appeal, the easy answer is that counsel did not act in a professionally reasonable manner. Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1035;see also Miles v. Sheriff, 581 S.E.2d 191, 194 (Va. 2003) (finding that when defendant explicitly instructed counsel to file an appeal, and counsel ignored the defendant’s instructions, such behavior constituted deficient performance under Flores-Ortega and Strickland). Yet if the district court finds that Bottema did not consult with Morales regarding a right to appeal, and Morales did not give him any specific instruction to file, the court still may find that Bottema rendered objectively reasonable assistance, as Flores-Ortega does not impose a per se rule. The Supreme Court in Flores-Ortega noted that “[w]e cannot say, as a constitutional matter, that in every case counsel’s failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense.” 528 U.S. at 479, 120 S. Ct. at 1036 (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052)(emphasis in original).
The Court instead held:
[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
Id. at 480, 120 S. Ct. at 1036. Of course, as Justice O’Connor noted in Flores-Ortega,the better practice is to consult with the defendant. Id. at 479, 120 S. Ct. at 1035. The Court remanded in Flores-Ortega because the evidence was insufficient to determine whether the public defender rendered “constitutionally inadequate assistance.” Id. at 487, 120 S. Ct. at 1040.
In making the determination that a rational defendant would have appealed, or that a particular defendant had interest in appealing, the court must consider all of the information that counsel knew or should have known. Id. at 480, 120 S. Ct. at 1036. The Court noted that a particularly important factor to examine is whether the appellant pleaded guilty, because a guilty plea reduces the scope of appealable issues and might indicate that the defendant wanted an end to the proceedings. Id. But even in such a case, the court considers factors such as whether the defendant received the sentence bargained for, or whether he expressly waived some or all rights to appeal. Id.
To show prejudice following an essential “forfeiture” of the appellate proceeding, the appellant must show that “but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed,” but if “counsel’s deficient performance has not deprived him of anything, he is not entitled to relief.” Id. at 484, 120 S. Ct. at 1038. Again, this is a fact-specific inquiry, and “evidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.” Id. at 485, 120 S. Ct. at 1039.
The district court must examine whether Morales acted as a rational defendant in wanting to appeal, or if Morales sufficiently demonstrated to Bottema that he wished to appeal. Id. at 480, 120 S. Ct. at 1036. The district court noted that Morales’s appellate claims would fail on the merits. Though nonfrivolous grounds for an appeal are highly relevant, it is also particularly relevant in this case for the district court to recognize that Morales proceeded in his postconviction petition pro se. The Flores-Ortega court recognized the unfairness of forcing a pro se defendant to show the merit of a hypothetical appeal. Id. at 486, 120 S. Ct. at 1040.
Other factors the court may consider in this particular case include Morales’s not-guilty plea and his concern with the entrapment defense, his lack of counsel in postconviction proceedings, his acknowledged inquiry into an appellate issue prior to trial, the timing of his initial letter to Bottema following the sentencing hearing, his apparent surprise at the sentence of 60 months as opposed to 48 months, and the failure of the district court to notify him of the right to appeal and apply for a public defender if he could no longer afford Bottema. See Minn. R. Crim. P. 28.02, subd. 5. The district court also may consider the lack of a Spanish language interpreter at the sentencing and postconviction evidentiary hearings as a factor in Morales’s favor here. Minnesota statutes require that a defendant “handicapped in communication” have a qualified interpreter available for assistance in legal proceedings as to protect his constitutional rights. See Minn. Stat. § 611.30 (2002); see also Minn. Stat. § 611.31(b) (2002) (“handicapped in communication” is defined as difficulty speaking or comprehending English). We are unable to determine from the record if Morales considered himself able to communicate adequately at the sentencing and postconviction hearings, but we do note that the transcripts indicate Morales has some difficulty with the English language, and the presence of an interpreter at the felony plea hearing indicates a potential need for an interpreter in subsequent proceedings.
As it did not apply Flores-Ortega, the district court did not make a decision as to whether Bottema and Morales consulted about the appeal—the first test under Flores-Ortega. We are unable to review this case without specific findings on this matter, and as a credibility determination is required here, Morales is entitled to another evidentiary hearing so he may testify. If the district court judge finds that Bottema and Morales did not consult, the judge must determine under Flores-Ortega whether the failure to consult was objectively reasonable or constitutionally inadequate under the circumstances of this case.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Morales spoke of a variety of different complaints at the postconviction relief hearing, including an incorrect criminal history number in the pre-sentencing investigation report, and Bottema’s failure to move to suppress evidence from a search of his home and from tape recordings made by the CRI of conversations between Morales and the CRI. Here, the parties only argue the ineffective assistance of counsel claim for failing to file the appeal. Morales also filed an ethics complaint against Bottema, but the complaint was dismissed.