A04-994

State of Minnesota,

Respondent,

vs.

LeRoy Bernard Fondren, Jr., petitioner,

Appellant.

Filed March 29, 2005

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 00055459

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

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, St. Paul, MN 55101 (for appellant)

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

KALITOWSKI, Judge

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.

D E C I S I O N

A 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 (Minn. 2003). We review legal issues de novo. Id. However, our review of factual matters is limited to “whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id. Absent an abuse of discretion, a postconviction court’s decision will not be disturbed. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

I.

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 (Minn. App. Apr. 30, 2002). After appellant withdrew his guilty plea, he went to trial, was convicted, and received a longer sentence than he received following his initial guilty plea. Appellant now argues that he was denied effective assistance of counsel because he alleges that his appellate attorney failed to advise him that, if he was successful in withdrawal of the plea, he was exposed to a greater sentence than the 120-month sentence he received when he first pleaded guilty. Appellant asserts that, had he been so advised, he would not have appealed the denial of his motion to withdraw his plea.

The Sixth Amendment guarantees a defendant the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063 (1984). We review ineffective assistance of counsel claims de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

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 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). “The reviewing court considers the totality of the evidence before the judge or jury in making this determination. [The reviewing court] need not address both the performance and prejudice prongs if one is determinative.” Rhodes, 657 N.W.2d at 842. And “[t]here is a strong presumption that counsel’s performance fell within a wide range of reasonable assistance.” State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003) (quotation omitted).

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).

The United States Supreme Court has suggested that American Bar Association (ABA) standards are helpful guides to determine what is reasonable representation. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. The ABA standards for appellate counsel recommend that appellate counsel should advise a client on the probable outcome of a challenge to the conviction or sentence, among other recommendations. ABACriminal Justice Prosecution Function and Defense Function Standards, Standard 4-8.3(b), (d) (1992).

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.

II.

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.

1. Inadmissible hearsay

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 (Minn. 2003) (citations omitted). Where the defendant fails to object to the admission of evidence, our review is under the plain error standard. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

Minnesota courts have found plain error by a prosecutor where police-officer testimony was elicited about a tip containing hearsay. See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994); see also State v. Hardy, 354 N.W.2d 21, 24-25 (Minn. 1984) (holding that “[e]ven a limited elicitation, for nonhearsay purposes, of general testimony that a tip had been received that led to defendant’s prints being compared with the latent print would have been unjustified in this case because the potential of the evidence being used for an improper purpose outweighed its very limited probative value”).

Here, 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 Minneapolis. And it is well settled that, in addition to establishing the prosecutor elicited inadmissible hearsay appellant must also show that the error affected substantial rights. See Strommen, 648 N.W.2d at 686.

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

The 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. Minn. R. Evid. 404(a); see, e.g., State v. Loebach, 310 N.W.2d 58, 63-64 (Minn. 1981). Similarly, Minn. R. Evid. 404(b) provides that evidence of another crime, wrong, or act is not admissible to prove that a defendant acted in conformity with the earlier crime, wrong, or act. While rules 404(a) and (b) operate to exclude character evidence if that evidence is offered to prove that the defendant acted in conformity with his character, if character evidence is offered for another purpose, rules 404(a) and (b) do not apply. State v. Axford, 417 N.W.2d 88, 92 (Minn. 1987).

A defendant may open the door to the prosecution’s offering character evidence to prove a defendant’s conformity with his character. See State v. Yang, 644 N.W.2d 808, 817 (Minn. 2002). In Yang, the defendant opened the door to character evidence when he testified that he was scared of a co-conspirator because of the co-conspirator’s association with a gang. Id. Relying on Minn. R. Evid. 404(a)(1), the supreme court held that the state was allowed to rebut Yang’s testimony with evidence that Yang was also part of a gang, in order to provide a more complete picture of Yang after Yang’s testimony. Id.

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 (Minn. 1984). With respect to claims of prosecutorial misconduct arising out of closing arguments, we consider the closing argument as a whole and do not focus on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

And 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 (Minn. 1988). It is well settled that courts apply a harmless error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

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.

Affirmed.