This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Benjamin Carter, petitioner,





State of Minnesota,




Filed February 22, 2005


Toussaint, Chief Judge


Ramsey County District Court

File No. K6-01-3821



Mary M. McMahon, Suite 140, 2499 Rice Street, Roseville, MN 55113 (for appellant)


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


Mark Nathan Lystig, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            Appellant Benjamin Carter challenges the district court’s denial of postconviction relief from his conviction of first-degree controlled-substance offense.  Carter argues that (1) the district court erred in denying him an evidentiary hearing; (2) his guilty plea was involuntary because it was prompted by hostile exchanges between trial counsel and the court; and (3) he was denied effective assistance of counsel because his trial counsel argued with the court and failed to file a Needham notice.  Because the petition, files, and record conclusively show that Carter’s plea was voluntary and that defense counsel’s representation did not fall below a standard of reasonableness, Carter was not entitled to an evidentiary hearing.[1]  We affirm.



            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).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly
erroneous.”  Id.  “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).  But on review of a postconviction court's denial, without an evidentiary hearing, of a petition for postconviction relief, any doubts about whether an evidentiary hearing is required are resolved in favor of the petitioner.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003).

            Carter argues that his due-process rights were violated by the postconviction court’s denial of his petition for relief without an evidentiary hearing.  To warrant an evidentiary hearing, the petitioner must allege facts that, if proved, would entitle him to the requested relief.  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).  The allegations must be more than argumentative assertions without factual support.  Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002).  If the petition, files, and record conclusively show that the petitioner is entitled to no relief, an evidentiary hearing is not required.  Minn. Stat. § 590.04, subd. 1 (2004); Patterson, 670 N.W.2d at 441.  Carter sought to withdraw his guilty plea on the grounds that the plea was involuntary and that he received ineffective assistance of counsel due to events that transpired at the contested omnibus hearing.  Carter further claims that because he cited to the transcripts of the plea hearing and submitted an affidavit to demonstrate the impact that the argument had on him at the time of the hearing, he provided the court with factual support for his claim.  We disagree.



Involuntary Guilty Plea

            Carter claimed in his petition that his January 2002 plea was involuntary because the in-court arguments between trial counsel and the trial judge, and the evident animosity between the two, made him fear that he would not receive a fair trial.  Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  See Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The district court, however, must allow a defendant to withdraw a plea of guilty upon a timely motion and proof that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  An involuntary plea constitutes a manifest injustice that entitles a defendant to withdraw a guilty plea.  State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).  A plea is involuntary if it was made because of improper pressures or inducements.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

            In denying, without an evidentiary hearing, Carter’s petition for postconviction relief, the court stated that “review of the transcripts reveal some disagreements between counsel and [the trial judge], but certainly nothing that rises to a level alleged by Petitioner.  Similar disagreements are almost a daily occurrence throughout the courts.”  The record supports this finding.

            The petition, files, and record do not support Carter’s claim that the exchange of words between trial counsel and the judge rendered his plea involuntary.  The court and defense counsel had discussions throughout the December 2001 omnibus hearing, but the major exchange occurred shortly after the court informed trial counsel that he had not met the threshold for disclosing the Confidential Reliable Informant (CRI).  The exchange was as follows:

MR. WHITLOCK:  I know that the court probably has some disdain for me, but I respect this court.

THE COURT:  I have never had any disdain for you, and I really don’t appreciate those comments.  I’ve had nothing but respect and caring for you and you know me better than that.  And if you keep that up, it will change.  But you’ve accused me in the last two weeks of both racism now and having disdain for you, and I’m tired of it.

MR. WHITLOCK:  Based on the fact that I’ve not been able to keep my cool—

THE COURT:  You wouldn’t want the transcript of those proceedings two weeks ago to ever be typed, would you?  Would you?

MR. WHITLOCK:  Well, Judge, no, I don’t think so.

THE COURT:  I don’t either.  So what I’m telling you is, it was off the record, and now you’re asking me to put it on the record. You don’t need this, Counsel.  So just be careful.  All of that was just between—off the record things that were said following the hearing.  If you want to put it on the record here again today, then go for it.  But I just—you’ve made very vague statements about police dishonesty and lying and fudging and that sort of thing.  None that is before the court in this case.  If you have something specific as to Deputy Eastman, I want to hear about it.  If you have something specific that will lead me to disclose the CRI, I want to hear about it.  But all of these things about some Oliver Stone conspiracy theory is simply beyond me today.  I don’t get it.


Neither this exchange nor the trial judge’s conduct supports Carter’s claim that the judge had “animosity” towards his attorney.  See State v. Kramer, 441 N.W.2d 502, 505 (Minn. App. 1989) (affirming that judge’s prior ruling holding public defender in contempt did not require judge remove himself), review denied (Minn. Aug. 9, 1989).  The judge specifically told trial counsel at the omnibus hearing that he had no disdain for him and added that he had nothing but care and respect for him.  While the judge cautioned trial counsel that he would no longer tolerate his vague accusation of racism and police dishonesty, any warnings were made with trial counsel’s best interest in mind and were not of such a nature that would suggest Carter could not receive a fair trial.  On the contrary, in spite of trial counsel’s failure to serve a Needham notice that would have required the state to bring, as a witness, the deputy who executed the warrant, after the argument, the court continued the omnibus hearing to allow trial counsel to question the deputy.  This allowed trial counsel to preserve constitutional claims that may have otherwise been waived.  See generally State v. Needham, 488 N.W.2d 294 (Minn. 1992) (allowing reopening of omnibus hearing to provide full and fair opportunity to present evidence).  The record does not validate Carter’s  claim of fears that he could not receive a fair trial.

            Moreover, the district court has the primary responsibility to determine whether the defendant’s plea is voluntary.  State v. Milton, 295 N.W.2d 94, 95 (Minn. 1980).  Before accepting a guilty plea, the defendant must be placed under oath and questioned as to whether he understands the maximum penalty that can be imposed for the crimes charged and the rights he is waiving and whether he still wishes to plead guilty.  Minn. R. Crim. P. 15.01. 

            Here, Carter testified, under oath, at the January 2002 plea hearing that he understood the plea agreement and that it meant he was waiving his Fifth and Sixth Amendment rights.  He indicated to the court that he understood that pleading guilty was the best course of action.  Most importantly, Carter never hesitated in entering his plea, and he never indicated to the court that he was pleading guilty because he felt that otherwise he would not receive a fair trial.  In fact, when specifically asked whether he was being forced or coerced into entering the guilty plea, he answered, “No.” 

            Because the petition, files, and record do not support Carter’s claim that his guilty plea was rendered involuntary due to the exchange of words between trial counsel and the trial judge, the postconviction court did not err in denying relief as to this issue without an evidentiary hearing. 


Ineffective Assistance of Counsel

Carter argues that his guilty plea was rendered involuntary by the ineffective assistance of counsel.  Ineffective assistance of counsel can render a guilty plea involuntary.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  But, the defendant must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citation omitted).  There is a strong presumption that counsel's performance fell within the wide range of reasonable assistance.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  A defendant seeking to withdraw a guilty plea must show that, absent defense counsel's errors, the defendant would not have pleaded guilty.  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004). 

            Carter argues that defense counsel was ineffective because he engaged in “combative exchanges” with the court and failed to serve a Needham notice.  The parties do not dispute that trial counsel and the trial court judge argued during the omnibus hearing, and trial counsel acknowledged during that hearing that he failed to serve a Needham notice.  Thus, the question before this court is whether trial counsel’s conduct rendered his representation ineffective.  We cannot say that it did.  Carter fails to cite any authority or otherwise show that trial counsel’s actions fell below an objective standard of reasonableness.  As noted by the postconviction court, disagreements between counsel and judges are commonplace, and we find that the exchange that occurred here did not rise to such an unreasonable level that it rendered trial counsel’s representation ineffective. 

            Carter also failed to show that there was a reasonable probability that he would not have accepted the plea but for trial counsel’s conduct.  In fact, considering the evidence against Carter, it is more probable that he would have entered into a plea agreement in spite of trial counsel’s conduct.  Carter’s major complaint with trial counsel’s failure to serve the Needham notice is that it forced him to testify and disclose his prior criminal history.  But, the record shows the police discovered in Carter’s home $7,600 in cash, five bags of crack cocaine that weighed 95.29 grams, and a plate and razor blade near the crack cocaine.  Carter’s fingerprints matched those found on the plate.  Even without evidence of Carter’s prior drug offenses, a jury based on this evidence, could have convicted Carter of the charged offense, and he could have received a sentence of 122 months.  See Minn. Stat. § 152.021, subd. 2(1) (2000) (stating that person who unlawfully possesses one or more mixtures of total weight of 25 grams or more containing cocaine is guilty of first-degree possession of controlled substance); Minn. Sent. Guidelines IV-V  (stating that presumptive sentence for first-degree controlled-substance violation with three criminal history points is 122 months).  Instead, he entered into a plea agreement that reduced his sentence to 93 months. 

            Carter also claims that trial counsel was ineffective because he failed to object to questioning regarding his prior drug convictions.  Because Carter did not raise this issue in his petition for postconviction relief, he waived his right to raise it on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Finally, Carter argues that his attorney failed to file a motion requesting information concerning the CRI and did not address the key issue—whether the CRI was a material witness.  See Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979) (setting out factors for determining whether to disclose CRI’s identity).  Trial counsel was allowed to argue the motion requesting disclosure of the CRI.  While trial counsel did not specifically explain why the CRI in this case was a “material” witness, he argued regarding possible due-process violations and entrapment.  He also argued that the CRI’s testimony was important because it would allow the defense to question him about all the controlled buys alleged, which were cited in the application for the search warrant.  He further argued that at a minimum, the court should permit an in-camera review.  In light of these facts, and in spite of trial counsel’s failure to specifically address the materiality of the CRI, we cannot say that trial counsel’s representation as to this issue fell below an objective standard of reasonableness. 

            Because the petition, files, and record conclusively show that trial counsel’s representation was not ineffective, the postconviction court did not err in denying relief as to this issue without an evidentiary hearing.


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

[1] On appeal, the state argues that Carter’s claim, filed almost two years after his conviction, is untimely.  Because we affirm on other grounds, we need not address the timeliness issue.