This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Shane James Johnson, petitioner,



State of Minnesota,


Filed March 4, 1997


Willis, Judge

Olmsted County District Court

File No. K4923639

Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Todd Zettler, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street S.E., Rochester, MN 55904 (for Respondent)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.



Appellant Shane Johnson challenges the postconviction court's denial of his petition for relief. We affirm.


On September 9, 1992, Johnson entered the gas station where Russell Miller was working. As Miller rang up an item for Johnson, Johnson hit him on the head with a 12- to 18-inch wrench. He then walked around the counter and threatened to kill Miller if he did not lie on the floor. Johnson opened the cash register, and when he asked Miller whether the store's video camera was working, Miller said he did not know. Johnson threatened to kill Miller if he did not answer. Miller repeated that he did not know if the camera was working, and Johnson hit him on the head 10 to 20 times with the wrench and left him lying in a pool of blood on the floor as Johnson made his escape.

In arguing for the exclusion of Spreigl evidence at a pretrial hearing, which Johnson attended, his counsel stated that Johnson would admit at trial all the elements of aggravated robbery and second-degree assault and that the only real issue at trial would be whether Johnson intended to kill Miller. In his opening statement and closing argument at trial, Johnson's counsel stated that his client was guilty of aggravated robbery and assault, but that he did not intend to kill Miller.

Johnson was convicted of attempted first-degree murder, attempted second-degree murder, second-degree assault, and aggravated robbery and was sentenced to the presumptive 180 months in prison. Johnson made a motion for postconviction relief, arguing that (1) he was denied effective assistance of counsel because his lawyer conceded his guilt on the aggravated robbery and second-degree assault charges, (2) the evidence was insufficient to support the guilty verdicts on the attempted murder charges, and (3) his sentence must be reduced in the interests of justice. The postconviction court denied the motion in its entirety.


In reviewing postconviction proceedings, this court determines whether the evidence is sufficient to sustain the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). "[A] postconviction court's decision will not be disturbed absent an abuse of discretion." Id.

1. Effective Assistance of Counsel

Johnson argues that he was denied effective assistance of counsel because his lawyer conceded, without Johnson's consent, that Johnson was guilty of aggravated robbery and second-degree assault.

Admitting a client's guilt without the client's consent or acquiescence is deemed ineffective assistance of counsel and is grounds for a new trial.

State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992), cert. denied, 507 U.S. 929 (1993).

Courts have found ineffective assistance of counsel where a defendant clearly objects to counsel's admission of the defendant's guilt. See State v. Moore, 458 N.W.2d 90, 96 (Minn.1990) (concluding that defendant was entitled to a new trial where he stood and objected immediately after his lawyer said defendant was guilty); State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984) (concluding that defendant was entitled to a new trial where he explicitly objected shortly after his lawyer implied defendant was guilty). Where the record does not show that the defendant objected to the admission of guilt, however, the defendant cannot succeed on a claim that he did not acquiesce in the admission. See Provost, 490 N.W.2d at 97 (concluding that the evidence showed that defendant acquiesced in his counsel's strategy of admitting guilt to a lesser charge where defendant did not object to counsel's admissions and his testimony did not contradict counsel's admissions).

Johnson argues that (1) his statement to his lawyer's paralegal expressing confusion about his lawyer's admission of his guilt and (2) the fact that he did not know he could object during proceedings both demonstrate his lack of acquiescence in the strategy of admitting he was guilty of aggravated robbery and second-degree assault. The postconviction court found that Johnson did not consent to the strategy, but that by failing to object, he acquiesced in it. As early as the pretrial evidentiary hearing, defense counsel made it clear, in Johnson's presence, that he was going to concede guilt on the lesser charges. While Johnson may have been confused about the strategy of admitting he was guilty of the lesser charges, his actions fell short of the immediate and explicit protests that have been found necessary to demonstrate objection to counsel's admission of a defendant's guilt.

2. Sufficiency of the Evidence

Johnson argues that his convictions for attempted murder in the first degree and attempted murder in the second degree must be reversed because the evidence was insufficient to show he intended to kill Miller. Where there is a challenge to the sufficiency of the evidence, this court examines the record to determine whether the evidence is sufficient to permit the jury to reach the verdict that it did. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Intent is "determined from all the objective facts and circumstances." State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983). In State v. Geshick, 283 Minn. 380, 168 N.W.2d 331 (1969), the supreme court rejected defendant's argument that the evidence that he inflicted only a shallow knife wound does not support a finding that he intended to kill the victim. Id. at 382, 168 N.W.2d at 332. The supreme court concluded that the jury could have inferred intent to kill because the evidence showed "deliberate and intentional use of a deadly weapon, the natural result of which could well have led to the victim's death." Id.

Here, Miller testified that Johnson twice threatened to kill him, struck him on the head repeatedly and forcefully with a wrench, and left him bleeding on the floor of the gas station. The evidence was sufficient for the jury to conclude that Johnson had the intent to kill.

3. Sentence

Johnson argues that because his actions did not unequivocally show an intent to kill, his sentence should be reduced. Johnson cites State v. Gilbert, 448 N.W.2d 875 (Minn. 1989), in which the supreme court reversed a district court's decision to depart upwardly from the sentencing guidelines and impose the statutory maximum sentence. Id. at 876. The supreme court concluded that it was in the interests of justice to reduce the sentence because, while the evidence of intent to kill was sufficient to support the conviction, it was a close issue as to whether the defendant actually intended to kill the victim. Id.

Here, unlike in Gilbert, the district court imposed the presumptive sentence. It is only in a "rare case" that a reviewing court will reverse a district court's decision to impose the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Here, the issue of intent is not as close as it was in Gilbert, and even if it were, this is not one of those rare cases in which it would be proper for this court to reverse the district court's imposition of the presumptive sentence.