This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Joshua John Damon,



Filed July 12, 2005


Hudson, Judge


Polk County District Court

File No. K2-01-1594


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


Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, Minnesota 56716 (for appellant)


Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, Suite W-1610, St. Paul, Minnesota 55101 (for respondent)


††††††††††† Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† On appeal from the postconviction courtís judgment vacating respondentís conviction and reinstating his guilty plea, the state argues that the postconviction court erred by concluding that respondent received ineffective assistance of counsel.† We conclude that respondent was not denied his constitutional right to effective assistance, but because the district court exceeded the scope of this courtís remand when it withdrew respondentís plea, we affirm the postconviction courtís order regarding sentencing.


††††††††††† On November 4, 2001, respondent and his girlfriend, Stephanie Nelson (now Stephanie Damon) went to the home of N.C. with N.C.ís state income-tax-refund check.† Respondent and Ms. Nelson told N.C. to sign the check over to Ms. Nelson.† Respondent and N.C. were involved in an altercation, and the state charged respondent with third-degree assault under Minn. Stat. ß 609.223, subd. 1 (2000).†

Respondent pleaded guilty to the third-degree-assault charge.† With 21 criminal-history points, respondentís presumptive sentence under the guidelines was a 33-month commitment.† The district court sentenced respondent as a career offender and imposed a stayed 60-month sentence on the assault charge to run consecutively to two other executed burglary sentences.† The sentence represented an upward departure with respect to consecutive service and a downward dispositional departure (a stayed prison sentence).

††††††††††† In February 2002, respondent, now represented by the state public defenderís office, learned that he did not qualify as a career offender and moved the district court for a modification of his sentence, arguing that the guidelines called for a 33-month concurrent sentence.† The state argued that respondentís offenses were crimes against a person and, therefore, justified the consecutive sentence. †In addition, the state argued that respondent received a substantial deal and agreed to serve the sentence consecutively under State v. Givens, 544 N.W.2d 774 (Minn. 1996). †The district court amended respondentís sentence on the third-degree-assault conviction from 60 to 33 months, stayed its execution, and ordered that the stayed sentence run consecutive to respondentís executed sentence for the probation violation.†

††††††††††† In March 2002, respondent appealed his amended sentence.† His attorney argued that respondent had made a plea agreement based on the presumptive sentence, believing that the guidelines called for a consecutive sentence when, in fact, they did not.† Counsel asked that respondentís case be remanded for imposition of a concurrent sentence.† In a footnote in respondentís appellate brief, counsel also asked that if this court denied the requested relief, that the case be remanded to give respondent the opportunity to withdraw his plea based on mutual mistake.†

††††††††††† In an unpublished opinion filed in August 2002, this court reversed respondentís sentence and remanded for resentencing.† See State v. Damon, No. C3-02-499 (Minn. App. Aug. 15, 2002) (Damon I).† This court concluded that respondent did not have a prior conviction for a crime against a person and the record revealed no other circumstances that would justify a consecutive sentence under the guidelines.† This court also concluded that respondentís presumptive sentence under the guidelines was a commitment to the department of corrections, and, therefore, the district courtís imposition of a stayed, consecutive sentence was a departure from the guidelines.† Citing the (then recent) decision in State v. Misquadace, 629 N.W.2d 487, 490 (Minn. App. 2001), affíd, 644 N.W.2d 65 (Minn. 2002), this court held that a plea agreement cannot constitute the sole basis for departing from the guidelines sentence.† This court remanded respondentís sentence with instructions for the district court to impose the presumptive sentence or to articulate substantial and compelling reasons for departing.†

††††††††††† On remand, respondent requested that the district court impose a 33-month sentence, but depart dispositionally and stay the sentence.† The state opposed the 33-month stayed sentence and objected to a departure.† The district court set the matter for trial, which effectively withdrew respondentís plea agreement.† In January 2003, the new Polk County Attorney amended the charges against respondent, adding one count of first-degree aggravated robbery under Minn. Stat. ß 609.245, subd. 1 (2000) to the complaint.† Respondent then declined an offer to plead guilty to the aggravated-robbery charge in exchange for an executed sentence of 33 months.† The matter went to trial in May 2003.† The jury returned a guilty verdict on all counts.† The district court sentenced respondent to 104 months executed, concurrent with the two burglary sentences.†

Respondent appealed his sentence to this court.† By order dated February 4, 2004, this court stayed respondentís direct appeal and remanded for postconviction proceedings. †Respondent petitioned for postconviction relief in March 2004, alleging ineffective assistance of appellate counsel because his appellate counsel did not advise him of the potential consequences of his appeal.† Respondent also argued that he was entitled to postconviction relief because the district court failed to follow this courtís instructions on remand when it withdrew respondentís plea and set the matter for trial.†

By order dated August 23, 2004, the postconviction court found that respondent received ineffective assistance of appellate counsel, reasoning that respondentís counsel failed to inform respondent that withdrawal of his guilty plea was a risk presented by the appeal.† The postconviction court vacated respondentís convictions for aggravated robbery and assault.† The postconviction court reinstated respondentís initial guilty plea and conviction for assault in the third degree from January 2002.† The postconviction court sentenced appellant to 33 months executed, concurrent with his sentences for burglary, the sentence appellant should have received under the guidelines.†

††††††††††† Following respondentís successful postconviction proceeding, this court dismissed his direct appeal.† The state filed a notice of appeal from the postconviction order on October 19, 2004.† By order dated November 15, 2004, this court reinstated respondentís direct appeal and consolidated respondentís direct appeal with the stateís postconviction appeal.†


††††††††††† The state challenges the postconviction courtís conclusion that respondent received ineffective assistance of counsel. †This court reviews a postconviction courtís decisions in order to determine whether there is sufficient evidence in the record to sustain the postconviction courtís findings.† State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).† The decisions of a postconviction court will not be disturbed unless the court abused its discretion. †Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).††

††††††††††† We conclude that respondent was not denied his constitutional right to effective assistance of counsel.† To establish a claim of ineffective assistance, respondent must demonstrate that ďcounsel made errors so serious that counsel was not functioning as the Ďcounselí guaranteed the defendant by the Sixth Amendment.Ē† Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (quotation omitted).† Here, respondentís attorney appealed his sentence, arguing that the district court misapplied the guidelines.† His attorney requested that this court impose the presumptive sentence.† Only in a footnote, as an alternative remedy, did counsel mention giving respondent the opportunity to withdraw his plea.† This court reversed and remanded with instructions to impose a guidelines sentence or provide reasons for the departure.† Thus, the appeal in Damon I, which was a sentencing appeal, not an appeal of respondentís conviction, did not contemplate a scenario in which the district court would withdraw respondentís plea.† Counsel does not act ineffectively by failing to apprise her client of unforeseeable risks.†

††††††††††† Although we conclude that the postconviction court abused its discretion by finding that respondent received ineffective assistance of counsel, we are affirming the postconviction courtís judgment on the alternative ground argued in respondentís petition for postconviction relief: the district court exceeded the scope of the remand in Damon I when it withdrew respondentís guilty plea by setting the matter for trial.[1]See Schoeb v. Cowles, 279 Minn. 331, 336, 156 N.W.2d 895, 898 (1968) (stating that the appellate court will not reverse a correct decision on appeal simply because it is based on incorrect reasons).

††††††††††† Whether the trial court exceeded the mandate of the court of appeals on remand is a question of law.† See Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 671 N.W.2d 213, 217 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).† ďIt is well established that a trial court may not vary the mandate of an appellate court or decide issues beyond those remanded.Ē† Harry N. Ray, Ltd. v. First Natíl Bank of Pine City, 410 N.W.2d 850, 856 (Minn. App. 1987). †ďA trial courtís duty on remand is to execute the mandate of the remanding court strictly according to its terms.Ē† Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).†

††††††††††† This courtís remand instructions in Damon I explicitly limited the district courtís discretion to one of two options: either impose a sentence in accordance with the guidelines or provide justification for any departures.† For reasons that are not clear in the record, the district court withdrew respondentís plea and set the matter for trial.† Accordingly, the district court exceeded the scope of the remand in Damon I.†

††††††††††† Because we are affirming the postconviction courtís judgment vacating respondentís conviction for first-degree aggravated robbery, we need not address respondentís direct appeal challenging the sufficiency of the evidence underlying that conviction.†

††††††††††† Affirmed.†

[1] Neither the state nor respondent sought review of the postconviction court on the issue of whether the district court exceeded the scope of the remand in Damon I.† But the supreme court stated in State v. Hannuksela, 452 N.W.2d 668 (Minn. 1990), that ďit is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be diluted by counselís oversights, lack of research, failure to specify issues or to cite relevant authorities.Ē† Id. at 673 n.7 (quotation marks omitted).† The United States Supreme Court also has addressed this issue.† In United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1936), the Court said:


In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.†


Furthermore, it is proper for an appellate court to decide an issue not raised on appeal when the reasoning relied upon by the appellate court is neither novel nor questionable.† See State v. Glidden, 455 N.W.2d 744, 746 (Minn. 1990).† The duty of the district court on remand to execute the mandate of the reviewing court strictly according to its terms is well settled.† Therefore, we take up this issue in the interests of justice.