This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
LeRoy Bernard Fondren, Jr., petitioner,
Hennepin County District Court
File No. 00055459
Mike Hatch, Attorney
General, 1800 NCL Tower, 445 Minnesota Street, St. Paul,
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Mark D. Nyvold, 332
Minnesota Street, W-1610,
Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
On consolidated appeal from both his conviction following a jury trial and the district court’s denial of his postconviction petition, appellant LeRoy Bernard Fondren, Jr. argues that his conviction should be set aside and that his plea and sentence to second-degree felony murder be reinstated; or, alternatively, that he be granted a new trial because (1) his counsel was ineffective; and (2) the prosecutor committed prosecutorial misconduct by eliciting hearsay, questioning appellant about prior bad acts, and making prejudicial remarks in closing arguments. We affirm.
petitioner who seeks postconviction relief has the burden of establishing, by a
fair preponderance of the evidence, facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2002). Our obligation in considering postconviction
proceedings is to review both questions of law and of fact. Butala v. State, 664 N.W.2d 333, 338 (
Appellant argues that his sentence
should be set aside, and that his initial guilty plea and sentence should be
reinstated. On his first appeal, this
court concluded appellant should be permitted to withdraw his guilty plea
because his trial counsel gave him erroneous advice and we therefore deemed his
plea involuntary. State v. Fondren, No. C0-01-1387 (
The Sixth Amendment guarantees a
defendant the right to reasonably effective assistance of counsel. Strickland v.
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 (
This analysis extends to challenges arising out of the plea process because, as the plea process is a critical stage in criminal adjudication, the same constitutional guarantee of effective assistance as at trial proceedings is warranted. 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).
United States Supreme Court has suggested that American Bar Association (ABA)
standards are helpful guides to determine what is reasonable
Appellant testified that, prior to initially pleading guilty, his trial attorneys told him that if he had a plea agreement, his sentence would be limited, but if he did not plead guilty, he would go to trial. But appellant also testified that his trial counsel never informed him that if he appealed his guilty plea, he would lose the protection of the sentence limitation from his guilty plea. And appellant testified that his appellate counsel never told him the possible consequences of appealing to withdraw his guilty plea.
Our review of the postconviction record reveals evidence that appellant knew the sentencing exposure he risked if he did not obtain a plea agreement before trial. Appellant’s trial counsel testified at the postconviction hearing that he told appellant that “without a plea agreement, we would proceed to trial and that at that trial, the outcome was not certain but that the guidelines gave [appellant] a pretty good idea of the likely sentence.” Trial counsel also testified that appellant “understood that the withdrawal of the plea would turn back the clock and any number of options would then be available to him.” And appellant signed his plea petition acknowledging that “if the plea is withdrawn by court order on appeal or other review,” appellant would (1) stand trial on the original charge or charges; and (2) the prosecution could proceed against appellant as if there had been no plea of guilty and no plea agreement.
Further, appellant’s appellate counsel testified that she received a preliminary questionnaire from appellant in which appellant stated that he appealed to “buy time” to review new state evidence. Therefore, appellate counsel stated she believed that if she obtained the withdrawal of appellant’s plea, she would effectively achieve the same result he desired—that of a continuance to investigate and challenge the new evidence. Appellate counsel also testified that the client’s decision to file an appeal controls and that she rarely attempts to talk a client out of filing an appeal.
Further, appellate counsel testified she informed appellant that if she successfully obtained a plea withdrawal, “he would start all over.” And appellate counsel sent a copy of the appellate brief to appellant. She also advised him that she had argued the issues she felt had merit and that appellant should file a supplemental brief if he desired to raise other issues. Appellant did not do so, nor did he contact appellate counsel until after he was sentenced.
The postconviction court weighed the testimony of appellant against that of his trial and appellate counsel and credited appellant’s counsel. The postconviction court was not required to credit appellant’s self-serving testimony. And the court found that appellant knew a possible consequence of a successful appeal would be that he would go to trial without the benefit of a plea agreement to limit his sentence. The postconviction court also found that appellant “knew that a possible consequence of the trial court granting his motion to withdraw his plea was that he could go to trial and lose.” And the postconviction court found that appellant knew and approved of the actions of his appellate counsel. Finally, the postconviction court found that appellate counsel explained to appellant that, if successful, the withdrawal would have the effect of a continuance and appellant could start over. On this record, we cannot say that the postconviction court abused its discretion in finding that appellant failed to show he received ineffective assistance of counsel.
Appellant alleges prosecutorial misconduct and claims that the prosecutor improperly (1) elicited hearsay; (2) questioned appellant about prior bad acts; and (3) made prejudicial remarks during closing argument.
At trial, an investigator testified that he received a phone message from appellant’s brother—who did not testify at trial—saying he wanted to talk about “the murder” at 26th and 17th. The victim’s death occurred at an address near that intersection. The prosecutor also emphasized the word “murder” by asking the officer “‘About the murder’ is what—those were his words, right?” No objection was made at trial. Appellant now argues that his brother’s alleged statement was inadmissible hearsay, and that the prosecutor committed misconduct by pursuing this line of questioning.
“Evidentiary rulings rest within the
sound discretion of the trial court and will not be reversed absent a clear
abuse of discretion. On appeal, the appellant
has the burden of establishing that the trial court abused its discretion and
that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
the statement offered by the prosecution—that a murder occurred near the
intersection of 26th and 17th—is hearsay.
And a possible inference to draw from the statement is that appellant’s
brother had knowledge of the victim’s death because appellant killed the
victim. But unlike Williams, the
officer’s testimony did not specifically incriminate the defendant and give
specific prejudicial details that corroborated the state’s evidence against the
defendant. See Williams, 525
N.W.2d at 544-45. All that was elicited
here was the fact that appellant’s brother asked to meet with the investigator
to discuss a “murder” at a certain location in
Because the hearsay statement did not directly incriminate appellant and in light of the state’s strong case against appellant, including the testimony of three eyewitnesses, we cannot conclude that the admission of the hearsay statement substantially affected appellant’s rights.
2. Improper questioning
Minnesota Rules of Evidence provide that character evidence is not admissible
for the purpose of proving that a defendant acted in conformity with his
character on a particular occasion.
defendant may open the door to the prosecution’s offering character evidence to
prove a defendant’s conformity with his character.
Here, appellant testified on direct that one of the reasons he did not turn himself in to police after the shooting was because he had no knowledge of the law. And on cross-examination, the prosecutor questioned appellant on his experience with the criminal justice system. We conclude that, as in Yang,the state was allowed to provide a more complete picture of appellant after his direct testimony, and that the district court did not err in permitting the prosecutor’s line of questioning.
3. Improper closing argument
The determination of whether a
prosecutor engaged in misconduct is largely within the discretion of the
district court. State v. Ture,
353 N.W.2d 502, 516 (
even where established, prosecutorial misconduct does not in and of itself
require a new trial. State v. Scruggs,
421 N.W.2d 707, 715-16 (
Here, we conclude that much of the prosecutor’s closing argument was proper and did not rise to the level of prejudicial misconduct. And, while the prosecutor did make a number of objected-to remarks during his closing argument, the trial court sustained the objections.
Our review of the record also indicates that this case was stridently argued by both the prosecutor and defense counsel. And during appellant’s counsel’s closing arguments, the prosecutor also made objections which were sustained by the trial court. Accordingly, we conclude that in light of the strong evidence against appellant, the prosecutor’s improper comments, when considering the closing argument as a whole, were not so serious as to substantially influence the jury in its verdict and, thus, appellant is not entitled to a new trial.