This opinion is nonprecedential except as provided by
                         Minn. R. Civ. App. P. 136.01, subd. 1(c).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A23-0841

                             Arthur Rafie Mullins, petitioner,
                                       Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                   Filed June 17, 2024
                                        Affirmed
                                    Bratvold, Judge

                              Stearns County District Court
                                File No. 73-CR-14-10924

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

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

      Considered and decided by Bratvold, Presiding Judge; Connolly, Judge; and Smith,

Tracy M., Judge.

                           NONPRECEDENTIAL OPINION

BRATVOLD, Judge

       Appellant challenges the district court’s denial of his postconviction motion to

withdraw his guilty plea. Appellant argues that the district court erred by determining his

claims were procedurally barred and failing to grant an evidentiary hearing. We conclude
that the district court abused its discretion by determining that appellant’s claims were

procedurally barred. But we also conclude that appellant failed to allege facts that, if true,

would entitle him to withdraw his guilty plea. Thus, the district court did not abuse its

discretion by denying appellant’s postconviction motion to withdraw his guilty plea

without an evidentiary hearing. We affirm.

                                           FACTS

       Appellant Arthur Rafie Mullins appeals for the third time from his conviction for

first-degree criminal sexual conduct. These facts are based on the record and this court’s

two opinions in Mullins’s prior appeals.

       In December 2014, respondent State of Minnesota charged Mullins with one count

of first-degree criminal sexual conduct and two counts of second-degree criminal sexual

conduct based on allegations that he sexually abused his stepdaughter between January 1,

2009, and March 1, 2013. State v. Mullins, No. A19-1620, 

, at *1 (Minn.

App. Aug. 31, 2020) (Mullins I), rev. denied (Minn. Nov. 25, 2020). Mullins retained

attorney T.E.-H. In July 2017, Mullins pleaded guilty to first-degree criminal sexual

conduct and the state agreed to dismiss the remaining charges. 

 The state also agreed to

a stayed 360-month sentence on the conditions that Mullins cooperate with the presentence

investigation, comply with the conditions of release, and appear for sentencing. 

       Mullins failed to appear at the sentencing hearing in December 2017, and the district

court issued a warrant for his arrest. 

 In August 2018, attorney T.E.-H. wrote a letter to

the district court saying that his law license had been suspended. Mullins was taken into

custody in April 2019 and the district court appointed a public defender.


                                              2
          In July 2019, Mullins moved to withdraw his guilty plea under Minn. R. Crim. P.

15.05, subd. 2, arguing that it was “fair and just” to allow him to do so because he “pled

guilty to get out of jail and on a promise of probation” and attorney T.E.-H. “failed to

communicate with him at various times.” The state opposed the motion. At a hearing, the

district court denied Mullins’s motion to withdraw his plea, finding that the plea was

“accurate, voluntary, and intelligent” and that “any allegations about ineffective assistance

of counsel really had to do with conduct that occurred after his plea.”

          The district court proceeded with sentencing. “Because Mullins failed to appear at

the first sentencing hearing, the state concluded that he violated the plea agreement” and

“requested an executed sentence of 360 months.” 

 Mullins argued for the district court

to stay the sentence as contemplated in the plea agreement. The district court adjudicated

Mullins guilty of first-degree criminal sexual conduct and sentenced him to 360 months in

prison.

          First Appeal and Remand

          Mullins appealed and argued that his plea was inaccurate because the factual basis

did not establish the intent and venue elements and the state used leading questions. Id. at

*2-3. This court noted that Mullins did “not appeal the denial of his presentence request to

withdraw from the plea” but argued instead that “the facts admitted did not sufficiently

establish the elements of first-degree criminal sexual conduct.” Id. at *2 n.2. Mullins also

challenged his sentence and contended that the district court erred in calculating his

criminal-history score. Id. at *4. This court affirmed Mullins’s conviction, concluding that




                                              3
his “plea was accurate and valid.” Id. at *3. But we remanded to develop the record on

Mullins’s criminal-history score. Id. at *3-4.

       On remand, the parties agreed that Mullins’s criminal-history score “should have

been 5.5,” which rounds down to 5, “and, therefore, the original criminal history score” of

8 “was erroneous.” The parties disagreed, however, about whether to assign a

custody-status point. The district court agreed with the state that one custody-status point

applied and resentenced Mullins to 360 months in prison.

       Second Appeal and Remand

       Mullins appealed to this court for a second time. State v. Mullins, No. A21-1024,

, at *2 (Minn. App. Apr. 25, 2022) (Mullins II). Before submitting a

brief, Mullins moved to stay the appeal and remand for postconviction proceedings “related

to whether Mullins’s plea was intelligently entered.” We denied Mullins’s motion,

reasoning that this court has interpreted Minn. R. Crim. P. 28.02—which allows a

defendant to move to stay an appeal for postconviction proceedings—as “only applying to

direct appeals” and that Mullins’s appeal was “a sentencing appeal.”

       In their briefs to this court on the merits, “the parties agree[d] that the district court

erred by including one custody-status point in [Mullins’s] criminal-history score.” 

 We

“independently review[ed] the legal issue” and determined that the district court “abused

its discretion by assigning one custody-status point to Mullins.” Id. at *2-3. We therefore

remanded for resentencing: “The district court may exercise its discretion to impose a

sentence within the range for 5 criminal-history points.” Id. at *3. Mullins requested that

we “instruct the district court to consider whether [his] new criminal history score” means


                                               4
that his guilty plea was not intelligent. Id. at *3 n.2. But we declined to consider the issue

“because Mullins did not properly raise the argument on appeal, nor did he properly brief

the issue.” Id.

       On remand in January 2023, Mullins moved to withdraw his guilty plea under Minn.

R. Crim. P. 15.05, subd. 1, based on ineffective assistance of counsel and the inaccurate

criminal-history score at the time of Mullins’s plea. Mullins argued that “being placed on

warrant status and later being found unamenable to probation is at least partly because

of . . . the ineffective assistance of counsel Mullins received.” Mullins also argued that his

plea was unintelligent because, at the time of the plea, “[t]here was a mutual

mistake . . . regarding Mullins’s criminal history score.” The state did not respond.

       At a January 2023 hearing, the district court asked the parties to brief the issue of

“whether or not the motion for a plea withdrawal is timely” and “whether or not an

evidentiary hearing is needed.” Mullins’s supplemental memorandum argued that the

motion to withdraw his guilty plea was not procedurally barred because it “addresse[d]

new developments since the [presentence withdrawal] motion was first heard” and that an

evidentiary hearing was required for Mullins to testify about “the circumstances of his

guilty plea and his actions leading up to his guilty plea and before he failed to appear for

sentencing.” The state’s memorandum argued that Mullins’s motion was “procedurally

barred.”

       In an April 6, 2023 order, the district court denied Mullins’s postconviction motion

to withdraw his guilty plea. The district court first cited State v. Knaffla, 

(Minn. 1976), stating that all claims known but not raised on direct appeal are barred in a


                                              5
subsequent petition for postconviction relief. The district court then noted that Mullins “did

not allege ineffective assistance of counsel in his first appeal” despite knowing that attorney

T.E.-H.’s “law license had been suspended” and that Mullins previously “litigated a

[presentence] motion to withdraw a guilty plea and did not appeal the court’s decision.”

The district court concluded that Mullins was “procedurally barred” from moving to

withdraw his guilty plea in a postconviction proceeding “unless he presents new

information to support his present motion.” The district court concluded that Mullins did

not offer “new information to justify an evidentiary hearing in this case” and denied

Mullins’s motion.

       The district court resentenced Mullins to 306 months in prison. Mullins appeals.

                                        DECISION

       Mullins argues that his motion to withdraw his guilty plea under Minn. R. Crim. P.

15.05, subd. 1, is not procedurally barred and that he is entitled to an evidentiary hearing.

“[A] motion to withdraw a guilty plea made after sentencing must be raised in a petition

for postconviction relief.” Lussier v. State, 

, 586 n.2 (Minn. 2012).

Appellate courts “review a postconviction court’s summary denial of a petition for

postconviction relief for an abuse of discretion.” Andersen v. State, 

(Minn. 2018). “A postconviction court abuses its discretion when its decision is based on

an erroneous view of the law or is against logic and the facts in the record.” 

                                              6
I.     The district court abused its discretion by determining that Mullins’s motion
       to withdraw his guilty plea was procedurally barred.

       Mullins’s brief to this court argues that his motion to withdraw his guilty plea is not

procedurally barred. The state’s brief does not address the Knaffla-bar issue. 1

       “[O]nce a direct appeal has been taken, all claims raised in the direct appeal and all

claims that were known or should have been known but were not raised in the direct appeal

are procedurally barred” under Knaffla. Colbert v. State, 

 (Minn.

2015) (emphasis omitted) (describing the “reformulated . . . Knaffla rule”); see also 

, subd. 1 (2022) (“A petition for postconviction relief after a direct appeal

has been completed may not be based on grounds that could have been raised on direct

appeal of the conviction or sentence.”). “[A] postconviction court may summarily deny a

claim that is procedurally barred by the Knaffla rule.” Pearson v. State, 

 (Minn. 2017).

       In a postconviction proceeding, Mullins moved to withdraw his guilty plea under

Minn. R. Crim. P. 15.05, subd. 1, arguing that ineffective assistance of trial counsel and

the inaccuracy of Mullins’s criminal-history score at the time of the plea and first

sentencing hearing established a manifest injustice requiring withdrawal of the plea.

Mullins argues that his motion to withdraw his guilty plea was not procedurally barred

because his claims were “not ripe for review during either of his [previous] appeals.”


1
  Mullins argues in his reply brief that the state “waived consideration” of the Knaffla-bar
issue and “seemingly concedes that Mullins’ claims are not Knaffla-barred.” This does not
end our analysis because we will address an issue on the merits whether or not a respondent
filed a brief or briefed the issue raised by an appellant. See Minn. R. Civ. App. P. 142.03
(stating that, if a respondent fails to file a brief, the case will be determined on the merits).

                                               7
Mullins points out that his criminal-history score “was still being litigated and his

ineffective-assistance-of-counsel claim required an evidentiary hearing and could not have

been raised on direct appeal.” We address Mullins’s arguments in turn.

       A.     Criminal-History Score

       Mullins argues that “[i]t wasn’t until after” his second appeal “that Mullins was able

to challenge whether the drastic reduction in his criminal-history score rendered his plea

unintelligent” and that he “raised this claim immediately once it was available to him.” The

district court’s order denying Mullins’s motion to withdraw his plea did not explicitly state

that Mullins’s criminal-history-score claim was procedurally barred, but it stated that

Mullins failed to present “information not already litigated or known to him at the time of

his appeal[s].”

       We conclude that Mullins could not have raised his inaccurate criminal-history

score as a basis to withdraw his guilty plea in either of his prior appeals. Mullins’s first

appeal, in part, challenged his sentence, “arguing that the district court erred in calculating

his criminal-history score.” Mullins I, 

, at *1. This court determined that

“the record [was] insufficient to permit review” of his criminal-history score and remanded

“to further develop the sentencing record.” Id. at *4. Accordingly, the record at the time of

Mullins’s first appeal did not allow him to raise a claim that his inaccurate criminal-history

score required plea withdrawal.

       Before Mullins’s brief to this court was due in his second appeal, he moved for an

order staying the appeal and remanding the matter “to allow post-conviction proceedings

related to whether Mullins’s plea was intelligently entered” because, at the time of the plea


                                              8
hearing, he believed that he had a higher criminal-history score. We denied Mullins’s

motion, noting that it was “a sentencing appeal” and that Minn. R. Crim. P. 28.05 did not

permit a stay and remand. In considering the merits of Mullins’s second appeal, we

declined to address Mullins’s argument that we “should instruct the district court to

consider whether [his] new criminal history score . . . renders his guilty plea unintelligent”

because Mullins did not properly raise or brief the argument on appeal. Mullins II,

, at *3 n.2. Thus, Mullins could not have raised his claim for a plea

withdrawal based on his inaccurate criminal-history score before or during his second

appeal.

       The district court therefore erred by determining that Mullins was procedurally

barred from moving to withdraw his plea based on his inaccurate criminal-history score.

       B.     Ineffective Assistance of Counsel

       Mullins argues that he “could not have raised an ineffective-assistance-of-counsel

claim on direct appeal because such a claim necessarily requires additional fact finding”

regarding conversations with attorney T.E.-H. “that took place between the plea and

sentencing hearing.” A claim for ineffective assistance of trial counsel is not procedurally

barred “when the claim requires examination of evidence outside the trial record or

additional fact-finding by the postconviction court, because the claim is not based solely

on the briefs and trial court transcript.” Andersen v. State, 

 (Minn. 2013);

see, e.g., Robinson v. State, 

 (Minn. 1997) (stating that defendant’s

claim that “his trial counsel failed to communicate two plea offers requires additional

factfinding, so it is not barred by his having known of the claim at the time of his direct


                                              9
appeal” because “[i]n order to evaluate such a claim, a court needs to hear testimony from

the defendant, his or her trial attorney, and any other witnesses who have knowledge of

conversations between the client and the attorney”).

       Mullins’s presentence motion to withdraw his guilty plea asserted that attorney

T.E.-H. “failed to communicate with [Mullins] at various times due to . . . illness.” In the

postconviction proceeding, the district court determined that Mullins was “procedurally

barred” from raising a claim of ineffective assistance of counsel as a basis to withdraw his

plea because he knew of attorney T.E.-H.’s misconduct at the time of his presentence

plea-withdrawal motion and “did not allege ineffective assistance of counsel in his first

appeal.”

       We conclude that Mullins’s ineffective-assistance-of-counsel claim was not

procedurally barred. First, Mullins’s presentence plea-withdrawal motion relied on

separate legal authority for relief different from that in his postconviction motion. His

presentence motion described circumstances making it “fair and just” to withdraw his plea

under Minn. R. Crim. P. 15.05, subd. 2, which included issues with attorney T.E.-H. In

contrast, Mullins’s postconviction motion argued that attorney T.E.-H. provided

“ineffective assistance . . . creat[ing] a manifest injustice in the guilty plea” under Minn.

R. Crim. P. 15.05, subd. 1.

       Second, Mullins’s claim for ineffective assistance of counsel could not have been

raised in his first appeal because it was related to out-of-court conversations between

Mullins and attorney T.E.-H. See Dukes v. State, 

 (Minn. 2001)

(explaining that the supreme court has “recognized that claims that require a court to


                                             10
explore conversations between attorney and client are best handled on a petition for

postconviction relief”). For example, Mullins’s postconviction motion to withdraw his

guilty plea asserted that attorney T.E.-H. advised Mullins “to let [him] handle the warrant

and rescheduling” of the sentencing hearing for which Mullins failed to appear. Thus, the

district court erred by determining that Mullins’s ineffective-assistance-of-counsel claim

was procedurally barred.

       Because we conclude that the Mullins’s postconviction motion to withdraw his

guilty plea was not procedurally barred, we next consider whether Mullins was entitled to

an evidentiary hearing.

II.    The district court did not abuse its discretion by denying Mullins’s motion to
       withdraw his plea without an evidentiary hearing.

       Mullins’s brief to this court argues that his postconviction motion to withdraw his

guilty plea “alleged facts that, if proven, would entitle him to relief” and therefore he was

entitled to an evidentiary hearing. Under Minn. R. Crim. P. 15.05, subd. 1, “[a]t any time

the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof

to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”

       A district court must hold an evidentiary hearing on a petition for postconviction

relief “[u]nless the petition and the files and records of the proceeding conclusively show

that the petitioner is entitled to no relief.” 

, subd. 1 (2022). “In

determining whether an evidentiary hearing is required, a postconviction court considers

the facts alleged in the petition as true and construes them in the light most favorable to the

petitioner.” Brown v. State, 

 (Minn. 2017). “A postconviction court,



                                              11
however, need not hold an evidentiary hearing when the petitioner alleges facts that, if true,

are legally insufficient to entitle him to the requested relief.” Bobo v. State, 

 (Minn. 2012); see also State v. Nicks, 

 (Minn. 2013) (“If the

postconviction court concludes there are no material facts in dispute that preclude

dismissal, and the State is entitled to dismissal of the petition as a matter of law, the court

is not required to hold an evidentiary hearing.” (quotation omitted)).

        Mullins urges this court “to remand and direct the [district] court to hold an

evidentiary hearing” on his motion to withdraw his guilty plea based on his inaccurate

criminal-history score and ineffective assistance of counsel. We consider his arguments in

turn.

        A.    Criminal-History Score

        Mullins contends that his guilty plea was unintelligent “because during his plea and

sentencing hearings the parties mistakenly believed” that he had a criminal-history score

of 8 when it was “actually” 5. Mullins argues that he is entitled to an evidentiary hearing

to demonstrate that, had he “known at the time of his plea that he had a criminal-history

score of 5, he may have negotiated a lower sentence, or chosen to take his case to trial since

he faced a lower presumptive sentence if he were convicted.”

        The state argues that “Mullins failed to make the showing necessary to justify an

evidentiary hearing” because he “failed to offer any relevant factual support for his claim

that the mistake [in his criminal-history score] induced his plea of guilty.” The state also

argues that, regardless, Mullins is not entitled to relief because an error in a defendant’s

criminal-history score “does not render a plea invalid when [the criminal-history score] is


                                              12
not part of the plea agreement, the sentences are permissible under the guidelines for the

corrected score, and the sentence does not exceed that contemplated by the plea

agreement.”

       For two reasons, the record “conclusively show[s]” that Mullins “is entitled to no

relief” regarding his criminal-history-score claim for two reasons. 

,

subd. 1. First, Mullins’s memorandum in support of his plea-withdrawal motion failed to

argue that he would not have accepted the plea had he known that his criminal-history score

was 5 instead of 8. Mullins argued only that, because “[t]here was a mutual mistake in this

case regarding Mullins’s criminal history score[,] . . . it cannot be said that, at the time of

the plea, Mullins’s guilty plea was . . . intelligent.” For the first time on appeal, Mullins

argues that “he may have negotiated a lower sentence or chosen to take his case to trial”

had he known his correct criminal-history score. But because Mullins did not make these

arguments below, his motion to withdraw his guilty plea failed to allege facts sufficient to

show that “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P.

15.05, subd. 1.

       Second, caselaw supports the legal conclusion that Mullins’s plea was intelligent.

“To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent.”

Nelson v. State, 

 (Minn. 2016) (quotation omitted). In determining

whether a plea was intelligently entered, appellate courts consider whether, when the

defendant pleaded guilty, he “understood the charges against him, the rights he waived,

and the consequences of the plea.” 

                                              13
       Mullins argues that a “plea agreement based on a mutual mistake regarding the

presumptive sentence generally renders a guilty plea unintelligent,” citing State v. DeZeler,

 (Minn. 1988), and State v. Benson, 

 (Minn. 1983). In

DeZeler, the parties agreed that, in exchange for the defendant’s guilty plea to receiving

stolen property, the state would “recommend that the trial court ‘cap’ the probationary jail

term at 4 months or 6 months, depending on whether or not [the] defendant cooperated by

naming” the person who sold him the stolen property. 

. The

defendant’s guilty plea was “based entirely on the assumption that the presumptive

sentence was a stayed sentence,” and “the parties mistakenly believed that the only real

issue left for the trial court was the length of probationary jail time that defendant had to

serve.” 

. At sentencing, the parties “learned that the defendant’s criminal history

score was three, not two,” and thus the presumptive sentence was 34 months in prison,

which the district court imposed. 

. The supreme court affirmed this court’s

decision to reverse and remand, reasoning that the defendant was entitled to withdraw his

plea based on the mistake related to his criminal-history score. 

.

       In Benson, the defendant pleaded guilty based on a plea agreement that the “court

would not depart upward from the presumptive sentence,” which the defendant’s counsel

told the district court was 32 months in prison based on a criminal-history score of 5.

. The subsequently prepared sentencing worksheet showed that the

defendant’s criminal-history score was 6 and that the presumptive sentence was 41 months

in prison. 

 At the urging of the defendant’s counsel, the district court imposed a

32-month sentence—a downward durational departure. 

 The supreme court remanded,


                                             14
determining that “the fact that defendant mistakenly understood that the presumptive

sentence was 32 months is not a ground for the departure but would be a ground for letting

him withdraw the guilty plea and stand trial on the original charges.” 

       We conclude that DeZeler and Benson are not helpful because they are factually

distinct from Mullins’s case. Mullins’s criminal-history score was not part of the plea

agreement. Mullins pleaded guilty to first-degree criminal sexual conduct, and in exchange,

the state agreed to dismiss the remaining charges and to the imposition of a stayed

360-month sentence on the condition that Mullins cooperate with the presentence

investigation, comply with the conditions of presentence release, and appear for

sentencing. It is true that the presentence-investigation report, which was completed after

the plea, erroneously stated that Mullins had a criminal-history score of 8 instead of 5. See

Mullins II, 

, at *3 (determining that Mullins had a criminal-history score

of 5). Thus, Mullins mistakenly believed his criminal-history score was higher at the time

of the plea agreement, not lower as the defendants in DeZeler and Benson believed. Still,

as the state points out, the 360-month sentence Mullins received at sentencing was within

the presumptive range for his offense of conviction and a criminal-history score of 5,

though at the high end of that range.

       Mullins also demonstrated at the plea hearing that he understood the charges against

him, the rights he waived, and the consequences of the plea. See Nelson, 

. At the time of his plea, Mullins stated that he understood the conditions of his plea

agreement and that if he violated the conditions, “the State would not be bound by the plea

agreement and could ask that [his] sentence be executed.” Accordingly, the record shows


                                             15
that Mullins understood that failure to comply with the conditions of the plea agreement

could result in an executed sentence, which, based on his criminal-history score in the

presentence-investigation report, was presumptively 360 months in prison. When Mullins

violated the plea agreement, the district court’s imposition of an executed sentence was not

based on the inaccurate criminal-history score. On resentencing, Mullins received a

presumptive 306-month prison sentence based on his reduced criminal-history score. Thus,

the reduced criminal-history score did not render his plea unintelligent because he

ultimately received a shorter sentence than he bargained for.

       In sum, the record conclusively shows that Mullins is not entitled to relief on his

criminal-history-score claim, and thus the district court did not abuse its discretion by

denying an evidentiary hearing on this claim.

       B.     Ineffective Assistance of Counsel

       Mullins argues that he “satisfied the low showing necessary to obtain an evidentiary

hearing on his ineffective-assistance-of-counsel claim” based on his assertion that he relied

on attorney T.E.-H.’s “advice to stay home and avoid the warrant” and that “[t]his

objectively unreasonable advice resulted in Mullins being sent to prison for 30 years.” The

state argues that Mullins was not entitled to an evidentiary hearing because “Mullins did

not provide any factual support for his claim that ineffective assistance induced his plea of

guilty.” In his reply brief, Mullins argues that “a defendant who raises an

ineffective-assistance-of-counsel claim after entering a guilty plea is not limited to arguing

that his attorney’s deficient performance caused him to plead guilty.”




                                             16
                      A petitioner is entitled to an evidentiary hearing to
              develop the facts supporting his ineffective assistance claims
              only if he alleges facts in the petition that, if proved, would
              affirmatively show that his attorney’s representation fell below
              an objective standard of reasonableness, and that but for the
              errors, the result would have been different.

Vance v. State, 

 (Minn. 2008) (quotation omitted). To prevail on an

ineffective-assistance-of-counsel claim in the context of a guilty plea, the defendant must

“demonstrate a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Campos v. State, 

 (Minn. 2012) (quotation omitted).

       Mullins failed to demonstrate that, but for attorney T.E.-H.’s deficient performance,

he would not have pleaded guilty. Mullins’s motion to withdraw his guilty plea argued that

the “plea agreement for 60 days in jail and a long probation period turned into 30 years in

prison . . . largely as a result of . . . Attorney [T.E.-H.’s] advice . . . to let Attorney

[T.E.-H.] handle the warrant and the rescheduling” of sentencing. But the district court’s

issuance of a warrant and the rescheduling of sentencing occurred after Mullins pleaded

guilty. Thus, even accepting Mullins’s allegations about attorney T.E.-H. as true, Mullins

cannot show that attorney T.E.-H.’s ineffective assistance led him to plead guilty because

the allegations relate to attorney T.E.-H.’s conduct after the plea. See Brown, 

 (stating that a court must take the facts alleged in the postconviction petition as true).

       Mullins’s reply brief to this court acknowledges that his postconviction motion to

withdraw his plea for ineffective assistance of counsel “focused on the events that occurred

between the plea and the sentencing hearings,” but argues that Winston v. State,



                                               17
No. A17-1777, 

 (Minn. App. Oct. 1, 2018), rev. denied (Minn. Dec. 18,

2018), allows for plea withdrawal on this basis. We note that nonprecedential opinions do

not bind this court but may be considered as persuasive authority. Minn. R. Civ. App. P.

136.01, subd. 1(c).

       In Winston, the defendant appealed from the district court’s denial of a

postconviction petition without an evidentiary hearing on his requests to withdraw his

guilty plea or to impose the sentence from his plea agreement. 

, at *2.

The defendant argued that his attorney “provided him with ineffective assistance after his

guilty plea” because his attorney “was not more responsive to his email messages in which

he expressed his desire to withdraw his guilty plea and go to trial, and did not file a motion

for leave to withdraw his guilty plea before his originally scheduled sentencing hearing.”

Id. at *3 (emphasis omitted). This court determined that the defendant could not show that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at *4. We reasoned that the defendant’s “failure to appear for his sentencing

hearing was the reason why he was sentenced to 108 months of imprisonment instead of

[the] 60 months” in his plea agreement and that “[t]here is no valid reason why his

attorney’s alleged non-responsiveness should have caused [the defendant] to believe that

he was not obligated to appear for sentencing or to believe that his failure to appear would

not have adverse consequences.” Id.

       Even if we assume that Winston allows for plea withdrawal based on ineffective

assistance of counsel after the plea agreement is reached, Winston is factually distinct from

Mullins’s case. Unlike in Winston, Mullins’s motion to withdraw his guilty plea did not


                                             18
allege any communications with attorney T.E.-H. that impacted his ability to move for plea

withdrawal. Indeed, Mullins moved to withdraw his guilty plea before he was sentenced in

July 2019.

       Mullins’s second motion to withdraw his plea stated that “Mullins slid off the road

and could not make it to the sentencing hearing” and that, after Mullins missed the

sentencing hearing, attorney T.E.-H. “was unavailable,” had his law license suspended, and

provided bad advice about rescheduling the sentencing hearing that Mullins had missed,

resulting in Mullins’s sentence of “30 years in prison.” Thus, because Mullins’s second

motion to withdraw his guilty plea alleged facts that, if true, showed Mullins failed to

appear for reasons unrelated to attorney T.E.-H’s bad advice, we conclude that the district

court did not abuse its discretion by denying Mullins an evidentiary hearing on his claim

for ineffective assistance of counsel.

       Affirmed.




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