This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Claude Magee,



Filed April 5, 2005


Toussaint, Chief Judge


Dakota County District Court

File No. K4-03-1924


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


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Davi Elstan Forte Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


Appellant challenges his conviction and the denial of his petition for postconviction relief, arguing that he was denied effective assistance of counsel.  Because we conclude that he was not denied effective assistance of counsel, we affirm.

 D E C I S I O N


Appellant Claude Magee was charged with one count of offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (2002), after three employees of a grocery store identified him as the individual who had presented a check that had part of its routing number whited out and that would not go through the store’s register.  Appellant was found to have one conviction for aggravated forgery and three convictions for felony check forgery within the past five years.  The district court imposed a 17-month executed sentence; appellant’s motion for postconviction relief was denied.  Appellant challenges both the sentence and the denial, arguing that he did not have effective assistance of counsel.

To establish that a new trial should be granted on the ground of ineffective assistance of counsel,

[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) (quotations omitted).  Under the prejudice prong, a “defendant must show that counsel’s errors actually had an adverse effect in that but for the errors the result of the proceeding probably would have been different.” 562.  The reviewing court considers the totality of the evidence before the judge or jury in making this determination.   Id.  A reviewing court need not address both prongs if one is determinative. State v. Rhodes, 657 N.W.2d 823, 842  (Minn. 2003).  Because ineffective assistance of counsel claims involve mixed questions of law and fact, the standard of review is de novo.  Id.

Appellant agreed to be represented by a public defender at the omnibus hearing when, after he had rejected the state’s offer of a guilty plea, the district court refused to release him on his own recognizance so he could hire independent counsel.  At trial, appellant’s public defender said she had advised appellant of his options, which were a jury trial, a bench trial, or a Lothenbach trial, and that he had chosen to proceed with the Lothenbach trial.[1]  The district court questioned appellant:

THE COURT:            Is it your desire to give up your right to a jury trial and

have me decide the matter?

[APPELLANT]:         Yes.

THE COURT:            Is it your desire to submit the matter by way of police

reports, the complaint, and any witness statements that have been obtained?

[APPELLANT]:         Yes, sir.

THE COURT:            Did you wish to present anything yourself?  Did you wish to testify or make a statement?

[APPELLANT]:         Yes

. . . .


THE COURT:            You understand what’s going on?

[APPELLANT]:         Yes, sir.

THE COURT:            Do you understand that we’re scheduled for a jury trial today, meaning we would seat twelve persons to decide your case?

[APPELLANT]:         Yes, Your Honor.

THE COURT:            Do you understand that you are giving up that right by proceeding in this fashion?

[APPELLANT]:         Yes, sir.

. . . .


THE COURT:            Do you understand that you are giving up your right to a unanimous jury verdict?

[APPELLANT]:         Yes.

THE COURT:            Do you understand you are giving up your right to require the state to call witnesses to testify against you and to have your attorney . . . cross-examine those witnesses to bring out your side of the story?

[APPELLANT]:         Yes.

THE COURT:            Do you understand that you are giving up your right to call witnesses to testify for you?

[APPELLANT]:         Yes.

. . . .


THE COURT:            Do you understand that you are going to testify yourself, and that will be considered part of the evidence in the case?

[APPELLANT]:         Yes, sir.

THE COURT:            Do you understand you will be subject to cross-examination by the county attorney?

[APPELLANT]:         Yes.

THE COURT:            Is it fair to say that [your attorney] had advised you not to testify?

[APPELLANT]:         Yes, she did.

THE COURT:            But you want to testify nonetheless?

[APPELLANT]:         Yes. 

Appellant argues his counsel was ineffective because she recommended a stipulated facts trial in a case where appellant contested his guilt.  But appellant’s own testimony indicates that he understood and agreed to the stipulated facts trial and that, when he did not agree with his attorney, he did not follow her advice - she advised him not to testify and he testified anyway.  Therefore, the attorney’s recommendation was not likely to have been determinative of the result. 

Moreover, appellant understood and agreed that the district court would make the decision, and the district court was unequivocal in finding appellant guilty of forgery.   When appellant complained about the public defender’s representation of him at the sentencing hearing, the district court told him: “I am the one that found you guilty because eyewitnesses said that you wrote the check . . . There’s no question in my mind but you did it.” 

            Appellant also argues that “the only recommendation [his attorney] should have made was for an adversarial trial: court or jury.”  But Minn. R. Crim. P. 26.01, subd. 3, provides that:

By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts.  Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.  The agreement and the waiver shall be in writing or orally on the record. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court.  If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court


Appellant does not claim that any of this procedure was not followed or that he did not agree to the procedure with the prosecutor.  No one has challenged appellant’s right to appeal from his conviction or to raise any issue on appeal.[2] 

            Appellant implies that there is no difference between a trial on stipulated facts and a guilty plea.  But there is a significant difference: in a trial on stipulated facts a judge determines the defendant’s innocence or guilty based on facts stipulated by the parties and the defendant’s testimony; in a guilty plea, the defendant admits his guilt.  Appellant had the opportunity to plead guilty and rejected it; he chose a trial on stipulated facts.  The record supports the district court’s finding that “In fact, [appellant’s] attorney did advise him of these options.  But he didn’t want a jury trial and he didn’t want to plead guilty.”

            Appellant also claims that his attorney violated his attorney-client privilege by referring at the sentencing hearing to his objection to the absence of African-Americans on the jury.  The state argues that this reference was appropriate because appellant had waived the attorney-client privilege by claiming ineffective assistance of counsel.  See State v. Walen, 563 N.W. 2d 742, 745 (Minn. 1997) (“Bringing an ineffective-assistance-of-counsel claim necessarily waived appellant’s attorney-client privilege in all communications relevant to that issue.”).  In his reply brief, appellant claims that he had not formally challenged his attorney’s effectiveness at the sentencing hearing.  But the transcript refutes this claim.  Appellant testified that his attorney had told him “she was going to do everything she could to lose [his]case” and that she  was “not trying
to help [him].” When his attorney explained what she had done on his behalf, appellant said, “Well, you didn’t do anything.  Can’t you read?”  Appellant clearly did challenge his attorney’s effectiveness at the sentencing hearing: he claiming she should have insisted on a jury trial.  Her reference to appellant’s objection to the racial makeup of the jury was made to rebut that challenge.

            Appellant has not shown that his attorney’s representation fell below an objective standard of reasonableness or that it is reasonably probable that, if she did make an error, that error was dispositive of the proceedings.  There is no basis to reverse the denial of his postconviction petition.


[1]Appellant notes that, although his attorney referred to the procedure as a Lothenbach plea, what he actually had was a  stipulated facts trial.  The district court agreed, saying in its memorandum accompanying the order denying postconviction relief: “This was a trial on stipulated facts, not a Lothenbach plea.”

[2] In fact, at the sentencing, the district court said, “I know you say you didn’t do it.  I say you did.  What are you going to do?  Appeal it.  . . . That’s your perfect right to do that.  I would encourage you to do that.”