This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Lee Edward Harris,



Filed September 27, 2005


Parker, Judge*


Meeker County District Court

File No. K0-04-97


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


Michael J. Thompson, Meeker County Attorney, Rick F. Lanners, Assistant County Attorney, Meeker County Courthouse, 325 North Sibley Avenue, Litchfield, MN  55355-2155 (for respondent)


John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Lee Edward Harris challenges his convictions of first-degree DWI, first-degree test refusal, open bottle, and disorderly conduct, arguing that he was denied the effective assistance of counsel when his trial attorney, without his consent, conceded his guilt to the open-bottle and disorderly conduct charges in his opening statement.  Because the concession was a strategic trial decision and appellant acquiesced to the concession, we affirm.


            In order to prevail on a claim of ineffective assistance of counsel, the 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.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  There is a strong presumption that counsel’s performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). 

            Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal, because the reviewing court does not “have the benefit of all the facts concerning why defense counsel did or did not do certain things.”  Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995) (quoting State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981)).  However, this court may hear an ineffective-assistance-of-counsel claim when requested to do so.  Id.  A postconviction hearing is necessary only when the record is not sufficient to allow review of the ineffective-assistance-of-counsel claim.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  Here, we conclude that the record is sufficient to review appellant’s claim.

            When defense counsel admits a defendant’s guilt without the defendant’s consent, the counsel’s performance is deficient and prejudice is presumed.  See Dukes v. State, 621 N.W.2d 246, 254 (Minn. 2001).  The decision to concede a defendant’s guilt is the defendant’s decision alone to make.  Id.    In Torres v. State, 688 N.W.2d 569 (Minn. 2004), the Minnesota Supreme Court stated that if the record indicates that trial counsel in fact conceded guilt, we must determine whether the defendant acquiesced in the concession.  Torres, 688 N.W.2d at 573.  If the defendant acquiesced, the claim of ineffective assistance of counsel fails.  Id. 

            Here, it is clear from the record that appellant’s attorney conceded appellant’s guilt on the open-bottle and disorderly conduct charges.  In his opening statement, appellant’s attorney said:

We are going to concede for the sake of this case that my client is guilty of two of the four charges against him, and that is open bottle – because whether you’re driving or not, you’re not supposed to have an open bottle of alcohol in your vehicle – and disorderly conduct.  Urinating in public and swearing at people is not – is not conduct which we find acceptable.


Therefore, we need to determine whether appellant acquiesced in that concession.  There is no evidence in the record that appellant explicitly and actively consented to the concession.  Nor is there any evidence in the record that appellant objected to or showed any dissatisfaction with the concession.  See State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992).  Case law indicates that “[e]ven if counsel admits guilt without the defendant’s permission, no error will be found if the defendant acquiesced in the strategy.”  Dukes, 621 N.W.2d at 254 (citing Provost, 490 N.W.2d at 97).  Acquiescence may be implied when the concession of guilt is an “understandable” strategy, the defendant was present at the time the concession was made, and the defendant admits he understood the implications of the concession but did not object.  State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003) (citing State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991).

            Here, appellant said nothing about the concession during the entire trial.  Appellant testified that he had a twelve-pack of beer in his truck and that he drank two to four beers in five to twelve minutes for “liquid courage” outside his truck.  He testified that he felt the effects of the beer.  Travis Friedman, a guest at Jeffrey Schmandt’s house, testified that after appellant parked his truck against a tree in Schmandt’s yard, appellant got out of his truck and immediately came into Schmandt’s house and began to yell and scream for Schmandt.  Officer Bryant Blackwell testified there was only one track of footsteps to the house, which does not support appellant’s assertion that he stood outside his truck and drank the beer.  Officer Dennis Hanson testified that open beer containers were found inside the truck, it reeked of beer, and there was liquid on the dash.  Appellant testified that he urinated half a block from Schmandt’s house.  He acknowledged that he was swearing at Schmandt from a half block away.  We conclude that the record indicates that appellant impliedly acquiesced to conceding to the two charges.  He heard his attorney concede the two charges in his opening statement and then provided testimony that supports the two charges, particularly when corroborated by the other witnesses’ testimony.  These circumstances, together with the strong case that makes a concession of guilt an understandable trial strategy in defending against the remaining, more serious charges, show that appellant acquiesced to the conduct of his trial counsel in impliedly admitting guilt.  State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984) (indicating that attorney admitting guilt to one or two charges in hope of increasing credibility with jury and increasing chance that jury will acquit defendant on other charges is reasonable trial strategy).

            Appellant asserts that his attorney was not consistent in such a strategy when he questioned Officer Hanson on cross-examination about the beer containers, thereby trying to cast doubt on whether the beer had actually been found.  However, in closing statements, appellant’s attorney said, “I’m reiterating my – my request made when I first addressed you yesterday morning – find my client guilty of [open bottle and disorderly conduct].  That’s what he was truly guilty of.  He is not guilty of drinking and driving, and I respectfully request not guilty verdicts [for the DWI and refusing testing charges].”  Appellant’s attorney maintained the same strategy from the beginning until the end.  We conclude that appellant’s attorney made an understandable strategic decision to gain credibility by conceding guilt to the two charges and that appellant acquiesced in the concession.  See Jorgensen, 660 N.W.2d at 133; Pilcher, 472 N.W2d at 337; Wiplinger, 343 N.W.2d at 861.


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