Bradley C. Rhodes, Aitkin County Attorney, James P. Ratz, Assistant County Attorney, County Attorney's Office, Courthouse West Annex, Aitkin, MN 56431 (for Appellant)

Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Respondent)

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Foley, Judge.[*]

The state challenges the district court's grant of Berg's petition for postconviction relief on the ground of ineffective assistance of trial counsel. We affirm.

On July 18, 1991, Berg was charged with third-degree murder. Represented by appointed counsel, Berg entered into a plea agreement, which provided that the state would not request an upward sentencing departure and Berg was free to argue for a downward departure. Berg entered a guilty plea, which was followed by an inquiry by the district court and Berg's sworn testimony about the events surrounding the baby's death. The district court accepted Berg's guilty plea, convicted her of third-degree murder, and sentenced her to 156 months in prison.

Berg appealed her sentence, arguing the district court abused its discretion by refusing to grant a downward departure from the presumptive sentence. This court affirmed Berg's sentence. State v. Berg, No. C7-92-213, 1992 WL 166683 (Minn.App. July 21, 1992), review denied (Minn. Aug. 27, 1992).

In September 1995, Berg filed a petition for postconviction relief, arguing that she had ineffective assistance of trial counsel. At the evidentiary hearing on January 24, 1996, Berg's trial counsel testified that: (1) he informed Berg that if she challenged the sufficiency of the evidence to support the charge, she ran the risk of being charged with a more serious crime; (2) he advised Berg of the guidelines sentence for the offense of third-degree murder; (3) he never told Berg that a proposed plea agreement provided that Berg would serve only a one-year sentence in the county jail; and (4) Berg told him she did not want to go to trial and run the risk of being charged with a more serious offense and that she was willing to enter a guilty plea in order to avoid a trial.

Berg's testimony was drastically different from her counsel's. She testified that before she entered her guilty plea: (1) her trial counsel informed her that if she did not plead guilty, the state would attempt to indict her for second-degree murder; (2) her trial counsel told her she would get a one-year sentence if she entered a guilty plea, but if she went to trial she would risk receiving a longer sentence; (3) her trial counsel let her make the decision of whether to plead guilty; and (4) she entered her guilty plea on the belief that she would get a sentence of only one year, to be served in the county jail.

Following the evidentiary hearing, the district court denied Berg's petition, concluding that she was procedurally barred from raising a claim of ineffective assistance of trial counsel because the claim had been known, but not raised, at the time of her direct appeal. On appeal, this court reversed and remanded to the district court on the ground that fairness required consideration of Berg's claim. Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996).

On remand, the district court granted Berg's petition for postconviction relief by setting aside her guilty plea, finding Berg demonstrated that (1) the assistance provided by Berg's trial counsel failed to meet an objective standard of reasonableness and (2) there is a reasonable probability that, but for trial counsel's unprofessional errors, Berg would not have pleaded guilty and would have insisted on going to trial. The state appeals.

To prove ineffective assistance of counsel in the context of a guilty plea, a petitioner must prove that: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985). "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 v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

In this case, the state concedes that trial counsel's representation failed to meet an objective standard of reasonableness. But the state argues the district court erred in concluding Berg has demonstrated there is a reasonable probability that, but for counsel's errors, she would not have pleaded guilty and would have insisted on going to trial. The record does not support the state's argument.

The district court relied on the following findings: (1) Berg did not understand the terms of the guilty plea and thought she was going to receive a sentence of one year in the county jail; (2) Berg told the probation officer during the presentence investigation that she was going to serve one year in jail; (3) during the taking of the guilty plea, Berg was not informed what was meant by a "guideline sentence," and she thought a "guideline sentence" meant one year; (4) Berg entered a guilty plea to avoid the possibility that a jury would convict her and she would be sentenced for longer than one year; (5) it was unreasonable and unprofessional for trial counsel to represent to Berg that she would receive a sentence of one year in the county jail if she were to enter a guilty plea; (6) even if trial counsel did not misrepresent to Berg the possible sentence she would receive upon entry of a guilty plea, he should have had enough communication with Berg before her plea to realize that her understanding of the sentence was incorrect, and he should have made certain that she understood the possible sentence she could receive under the sentencing guidelines; and (7) trial counsel never advised Berg of the effect of the lack of physical evidence against her and "probably" did not encourage her to go to trial to test the sufficiency of the evidence. Faced with conflicting testimony from Berg and her trial counsel, the district court credited Berg's testimony. This court accords great deference to the district court's determination of witnesses' credibility. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). We conclude the record supports the district court's findings.

Next, the state argues Berg's confessions were sufficiently corroborated to sustain the conviction. This argument goes to the sufficiency of the evidence, which is beyond the scope of our review.

Affirmed.

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