This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0812

                      Seth Clayton Francis Crawford, petitioner,
                                     Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                               Filed February 6, 2017
                                      Affirmed
                                  Connolly, Judge

                             Stearns County District Court
                               File No. 73-CR-13-9939


Craig E. Cascarano, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)



       Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and

Reilly, Judge.
                           UNPUBLISHED OPINION

CONNOLLY, Judge

         Appellant argues that the postconviction court erred in denying his request to vacate

his guilty plea based upon ineffective assistance of counsel. Because appellant fails to

demonstrate that, but for the unprofessional errors of his counsel, he would have proceeded

to trial instead of pleading guilty, we affirm.

                                            FACTS

         On November 12, 2013, appellant Seth Clayton Francis Crawford, while

intoxicated, approached two individuals in a parking lot outside of a store and took their

shopping bags while brandishing a knife and telling them to “shut up” or he would use the

knife. Appellant was arrested in the parking lot where the robbery was committed, and the

next day he was charged with two counts of first-degree aggravated robbery. Shortly

thereafter an attorney was retained as counsel for appellant.1 On February 13, 2014,

appellant entered a Norgaard plea of guilty to both counts of first-degree aggravated

robbery. The signed plea petition read:

                I have been told by my attorney and understand: That my
                attorney discussed this case with one of the prosecuting
                attorneys and that my attorney and the prosecuting attorney
                agreed that if I entered a plea of guilty, the prosecutor will do
                the following: Plead guilty to Count I and Count II. Cap of 58
                months to run concurrent on all counts. Defendant is allowed
                to argue for a departure at [s]entencing.




1
    Appellant has now retained different counsel.

                                                  2
At the guilty plea hearing, appellant agreed that he had enough time to talk to his attorney

about the case, had been fully advised of the facts in the matter, and that his interests had

been represented fully.

       At the sentencing hearing appellant’s counsel argued for a dispositional departure,

asking the district court to allow his client to enter into treatment in lieu of an executed

prison sentence. The court sentenced appellant to 58 months in prison.

       Appellant filed a petition for postconviction relief requesting the court vacate and

set aside the judgment and sentence in this matter allowing him to withdraw his guilty plea

as a result of ineffective assistance of counsel. At an evidentiary hearing appellant, his

mother, and trial counsel testified. Trial counsel testified that he met with appellant in-

person for approximately one hour at the jail where appellant was being held; he took steps

to ensure appellant could contact him via phone on a weekly basis; he met with appellant

prior to every hearing and after most; and he told appellant that if he went to trial he faced

consecutive sentences of 58 and 68 months for a total of up to 126 months. The

postconviction court “[found] [that] testimony credible.” The postconviction court also

found that appellant’s testimony was not credible. Appellant claimed that he would not

have accepted the plea agreement if he had known the court would commit him to prison;

he suggested that trial counsel told him the district court would grant him probation, but

also acknowledged that he knew there was a possibility the court would sentence him to

58 months in prison.

       The postconviction court concluded that appellant failed to demonstrate that, but for

his attorney’s errors, he would have proceeded to trial instead of pleading guilty.


                                              3
                                      DECISION

       Because claims of ineffective assistance of counsel involve mixed questions of law

and fact, our review of decisions by the postconviction court is de novo. Hawes v. State,

 (Minn. 2013). However, de novo review of ineffective-assistance-

of-counsel claims does not extend to findings of fact made by the postconviction court but

only to its legal conclusions. State v. Nicks, 

 (Minn. 2013). “[A]

court’s factual findings will not be disturbed unless they are clearly erroneous.” 

.

Because “the postconviction court is in a unique position to assess witness credibility,” we

“give the postconviction court considerable deference.” Opsahl v. State, 

 (Minn. 2006).

       Appellant argues that the postconviction court erred in denying his petition for

postconviction relief based upon ineffective assistance of counsel. Ineffective-assistance-

of-counsel claims are analyzed using “the two-prong test articulated in Strickland v.

Washington.” Fields v. State, 

 (Minn. 2007) (citing Strickland v.

Washington, 

, 

 (1984)). First, an appellant must

show that “counsel’s representation fell below an objective standard of reasonableness.”

Fields, 

. Second, an appellant must show that, “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 

 An

appellate court “need not address both the performance and prejudice prongs if one is

determinative.” State v. Rhodes, 

 (Minn. 2003).

       An attorney provides reasonable assistance when he exercises the customary skills

and diligence that a reasonably competent attorney would exercise under the


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circumstances. Dukes v. State, 

 (Minn. 2001). An attorney’s

performance is presumed to be reasonable. State v. Vang, 

 (Minn.

2014). Additionally, when a petitioner makes an ineffective-assistance-of-counsel claim

following a guilty plea, he must demonstrate that, but for the ineffective representation, he

would not have entered the plea. State v. Ecker, 

 (Minn. 1994).

       The postconviction court concluded that

              [Appellant] . . . failed to demonstrate by a preponderance of the
              evidence that, but for defense counsel’s errors, he would have
              proceeded to trial instead of pleading guilty. To support his
              assertion that [trial counsel] provided ineffective assistance of
              counsel, [appellant] argues that [trial counsel] (1) failed to
              properly investigate the case, (2) failed to adequately
              communicate with him prior to his plea of guilty, (3) did not
              have sufficient information from him to understand the plea
              would have to be [a Norgaard plea], (4) misinformed him
              regarding the applicable Minnesota Sentencing Guidelines . . .
              sentence in this matter[,] (5) promised him a probationary
              sentence, [and (6)] failed to adequately support a durational
              departure request.

       The postconviction court first analyzed appellant’s claims that he was promised a

probationary sentence.    It concluded that, if trial counsel guaranteed a probationary

sentence, then there would have been a reasonable probability that appellant would not

have pleaded guilty without that guarantee. See State v. Trott, 

 (Minn.

1983) (“If the former counsel made an unqualified promise of probation, then defendant

should be permitted to withdraw his plea on the ground that the promise is unfulfilled.”).

But the court found that appellant’s attorney, who testified that he would argue for a

probationary sentence but could not guarantee anything, was credible and appellant and his

mother, who testified that his attorney had promised that appellant would get eight months


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to a year in prison and then be released “into treatment,” were not credible. Appellant

argues that the postconviction court’s credibility determination was clearly erroneous. We

disagree.

      Several facts in the record support the postconviction court’s finding that appellant

was not guaranteed a probationary sentence. The plea agreement states: “Plead guilty to

Count I and Count II. Cap of 58 months to run concurrent on all counts. Defendant is

allowed to argue for a departure at [s]entencing.” (Emphasis added.) At the plea hearing,

the following testimony regarding the plea agreement was made:

             Q. I’m showing you a document. It’s entitled Petition to
             Enter Plea of Guilty in a Felony . . . Case. Do you recognize
             it?
             A. Yes.
             Q. Is that your signature on the bottom of page four?
             A. Yes, sir.
             Q. And by signing this you’re indicating to the Court that
             you understand both the content and the meaning of the
             document?
             A. Yes, Sir.
             Q. Did we go through it line-by-line?
             A. Yup.

At the postconviction proceeding, appellant was asked:

             Q. What did [trial counsel] tell you on January 9th [, prior to
             the plea hearing,] was the plea agreement?
             A. A cap of 58 and then he said get – we’ll get a downward
             departure, do eight months [at] county and get into treatment.
             Q. What did you think cap of 58 meant?
             A. Meant that they couldn’t charge me over 58 months.
             ....
             Q. Couldn’t send you to prison for more than 58 months; is
             that correct?
             A. Yeah.
             Q. You understood what a cap was; is that right?
             A. Yeah.


                                            6
              Q. So you understood in talking to [trial counsel] on the 9th
              that you could be sent to prison for up to 58 months?
              A. Yeah.

Later appellant was questioned about the affidavit he submitted in support for his

postconviction motion.

              Q. [T]his is the Affidavit . . . and I’d ask you to read
              Paragraph Number 8.
              A. He told me, take the plea negotiation of 58 months. If I
              did not I would get sentenced to 12 years in prison but indicated
              that he believed I would get probation or at the worst a 36-
              month exceeded (sic) sentence if I plead guilty.
              Q. So–and this is the Affidavit, again, that you filled out. So
              in your Affidavit you seem to acknowledge that he told you
              that 36 months in prison was a possibility; is that what the
              Affidavit says?
              A. Yeah.
              Q. So he did in fact talk to you about prison being a
              possibility and never did promise you outright that you will get
              probation; isn’t that true?
              A. No. I say no.

This testimony is inconsistent and contradictory. Appellant admitted he was aware that the

most he could get is 58 months in prison and admitted, to the postconviction court, that his

attorney told him that 36 months in prison was a possibility, but then he contended that he

was promised outright that he would get probation after serving eight months in prison.

Additionally, appellant responded “absolutely not” when asked whether he would have

taken the 58-month deal if he had known the judge would send him to prison instead of

treatment. It is clear that appellant knew he could be sent to prison and that makes his

testimony that he would not have accepted the plea deal unreliable.               Given the

inconsistency in appellant’s own testimony, it is reasonable for the postconviction court to

credit his attorney’s testimony over that of appellant and his mother.


                                             7
       With respect to the remaining allegations of deficient performance by trial counsel,

the postconviction court concluded that appellant could not produce any evidence that

would have had an actual effect on the outcome of the proceeding. Appellant made no

argument regarding how additional communication with his attorney would have changed

his decision to plead guilty. At the plea hearing, he stated that he had been permitted ample

time to consult with counsel and was satisfied with that communication.              At the

postconviction hearing he did not argue that the Norgaard plea was entered into

involuntarily or lacked an appropriate factual basis, nor does he make that argument on

appeal. The postconviction court also determined that it was not reasonably probable that

appellant would have rejected the plea offer if his attorney had told him that the guidelines

called for 106 months instead of 126 months.

       Appellant also argues that this court should reverse the postconviction court’s

finding that his attorney was credible because (1) counsel did not understand the difference

between durational and dispositional departures and (2) because he told appellant that he

could be sentenced to 126 months in prison instead of the 106-month maximum prison

sentence he would have received had he lost at trial and been sentenced consecutively.

Appellant argues that an attorney who imparts incorrect information about the workings of

the sentencing guidelines is untrustworthy and his factual testimony regarding his legal

representation of the appellant is not credible. But the postconviction court understood that

appellant’s attorney had told appellant the wrong sentencing guidelines. However, as the

postconviction court found, appellant “did not testify that the 20-month difference would

have made a difference in his decision to plead guilty or that it factored into that decision


                                             8
in any way.” Even in his appellate brief, appellant does not allege that he would not have

entered a guilty plea had he known that he would be potentially subjected to 106 months

in prison instead of 126. He argues that, because his attorney did not understand the

sentencing guidelines, he received ineffective assistance of counsel. But “we need not

address both prongs of the [Strickland] test if one is determinative.” State v. Whitson, 

 (Minn. 2016). Appellant has not argued or presented evidence to support

that there is a reasonable probability that, but for counsel’s unprofessional errors, he would

not have pleaded guilty. Because of this failure to satisfy the second requirement of an

ineffective-assistance-of-counsel claim, we affirm.

       Affirmed.




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