This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0489
Joshua Zachary Matter, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed February 23, 2015
Affirmed
Stauber, Judge
Olmsted County District Court
File No. 55-CR-11-2534
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)
Considered and decided by Reilly, Presiding Judge; Stauber, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
In a postconviction appeal challenging his conviction for possession of
pornographic work on a computer, appellant argues that the district court should have
held an evidentiary hearing to consider his various claims of ineffective assistance of
counsel. We affirm.
FACTS
Appellant Joshua Zachary Matter was charged with two felonies for possession
and dissemination of pornography on a computer. While executing a search warrant,
police discovered 32 files on appellant’s computer, five of which matched child
pornography “hash values,” resulting in recovery of numerous images of child
pornography.
Appellant agreed to enter an Alford plea1 to the possession-related charge in
exchange for the state’s dismissal of the dissemination-related charge and a sentence that
consisted of 120 days of electronic home monitoring with work release, restricted
computer use, and “all other terms and conditions open to argument.” The plea offer was
also “conditioned on [appellant’s] cooperat[ion] with [the] PSI and making all court
dates.” In his plea petition, appellant made statements supportive of his attorney’s
performance, including that he had “sufficient time to discuss my case with my attorney,”
that he was “satisfied that my attorney is fully informed as to the facts of this case,” that
“[m]y attorney has discussed possible defenses,” and that “I am satisfied that my attorney
has represented my interests and has fully advised me.” The plea petition also includes
appellant’s acknowledgement that he understood his various trial rights and waived them.
The district court accepted the plea and ordered a presentence investigation (PSI).
1
A defendant who enters an Alford plea maintains innocence but concedes that there is
sufficient evidence to support a guilty verdict. State v. Goulette, 258 N.W.2d 758, 761
(Minn. 1977).
2
The PSI report notes that the presumptive guidelines sentence for the offense of
conviction is a stayed fifteen-month sentence and recommends a probationary sentence in
accordance with appellant’s plea agreement. The PSI proposes as conditions of probation
that appellant “[r]egister as a predatory offender and submit a DNA sample as required
by statute.”
In conjunction with preparation of the PSI, appellant participated in a
psychosexual assessment. The evaluator diagnosed appellant with “paraphilia not
otherwise specified,” depression, and avoidant personality disorder, and recommended
that appellant “should be required to complete adult group sex offender treatment.” The
evaluator rejected appellant’s claim that he never intentionally sought child pornography,
noting that appellant’s computer showed “‘numerous hits’ for terms, such as ‘pedo and
pthc’ (which are indicative of child pornography),” that he “downloaded these files from
Shareaza, a peer-to-peer file sharing program,” and that some files were named “Sandra
Teen Model Nude Pics Pedo Pthc, Pedo Lolita Kids Kinder Pedofilia Sandra Teen Model
Nude Pics Pedo Pthc, and Raygold Lolita pedo 10Yo F-----g a Sister Sleep 11Yo.” The
evaluator concluded that “[b]ased on the titles of these files, it would be impossible for an
individual not to know what was on” the downloaded files.
At sentencing, consistent with his plea agreement, the district court stayed
imposition of sentence and placed appellant on probation for five years, requiring him to
be placed on home monitoring for 120 days. Probation was made subject to numerous
conditions, including that appellant successfully complete a sex-offender program,
register as a predatory offender, and provide a DNA sample.
3
Appellant’s probation agent filed a probation violation report in May 2013
alleging failure to complete sex-offender treatment and later added violations for contact
with minors, going places where children congregate, and marijuana use. In August
2013, appellant moved to withdraw his plea, arguing that he had repeatedly maintained
his innocence, no actual images of child pornography were found on his computer,2 he
was convinced to plead guilty by his attorney’s statement that he would likely lose
custody of his ten-year-old daughter if he did not accept the plea, and his attorney’s
advice to enter an Alford plea set him up “for almost certain failure” because “he would
be required to complete a treatment program that included polygraph examinations.”
After his probation agent filed a new probation violation report for his use of
drugs, appellant petitioned for postconviction relief, alleging that his attorney provided
ineffective assistance of counsel by failing to advise him at the time of his plea that he
could be required to complete sex-offender treatment as a condition of probation, and by
advising him to enter an Alford plea despite a weak case against him and his consistent
claim of innocence.
The district court dismissed appellant’s petition without an evidentiary hearing,
concluding that appellant had not shown a factual basis for plea withdrawal or an
actionable claim of ineffective assistance of counsel. This appeal followed.
2
At Matter’s plea hearing, he admitted that he downloaded “a number of images” which
involved minors in sex acts.
4
DECISION
Appellate courts apply an abuse-of-discretion standard of review to a
postconviction court’s denial of an evidentiary hearing. Caldwell v. State, 853 N.W.2d
766, 770 (Minn. 2014). A postconviction court must hold an evidentiary hearing unless
the petition, records, and files conclusively show that the petitioner is not entitled to
relief. Minn. Stat. § 590.04, subd. 1 (2014). An evidentiary hearing is necessary if
material facts exist that must be resolved for a determination of the merits of the claim.
Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). But if the petitioner alleges facts
that, even if true, are legally insufficient to entitle the petitioner to the requested relief,
the postconviction court need not hold an evidentiary hearing. Bobo v. State, 820
N.W.2d 511, 516 (Minn. 2012).
The Sixth Amendment guarantees the right to counsel, U.S. Const. amend. VI,
which includes the right to effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim of ineffective
assistance of counsel, “an appellant must demonstrate that counsel’s performance fell
below an objective standard of reasonableness, and that a reasonable probability exists
that the outcome would have been different but for counsel’s errors.” State v. Rhodes,
657 N.W.2d 823, 842 (Minn. 2003) (quotation omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068. An appellate court need only address one prong of the Strickland
test if that prong is dispositive. Rhodes, 657 N.W.2d at 842.
5
Appellant argues that under Padilla v. Kentucky, his attorney should have
informed him of the consequences of his conviction, including the possibility of his being
required to participate in sex-offender treatment, which typically requires an admission of
guilt, and that had his attorney properly counseled him, he would not have agreed to the
Alford plea. 559 U.S. 356, 366, 130 S. Ct. 1473, 1481 (2010) (holding that counsel must
inform client of consequences of a guilty plea that placed client at risk of deportation).
Appellant asserts “that sex offender treatment has become so interrelated to the criminal
process in cases with sexual overtones that it too should require full disclosure to criminal
defendants as part of the guilty plea process.” We disagree.
When considering the first Strickland prong, appellate courts have limited the
holding of Padilla to deportation cases. See Sames v. State, 805 N.W.2d 565, 569-70
(Minn. App. 2011) (ruling that Padilla does not require an attorney to advise a client that
a guilty plea may result in the client’s ineligibility to possess a firearm). Following
Padilla, Minnesota courts have made a distinction between collateral and direct
consequences of a plea in determining the reasonableness of an attorney’s performance,
and have held that attorneys must advise their clients of only direct consequences of a
plea, such as “the maximum sentence to be imposed and the amount of any fine,” Alanis
v. State, 583 N.W.2d 573, 578 (Minn. 1998), abrogated in part by Padilla, 559 U.S. at
388, 130 S. Ct. at 1494. Sames, 805 N.W.2d at 568. The consequence of pleading guilty
at issue here, which required completion of sex-offender treatment as a condition of
probation, is collateral to appellant’s plea, and “ignorance of a collateral consequence
does not entitle a criminal defendant to withdraw a guilty plea.” Id.
6
Further, appellant’s postconviction petition does not allege that appellant’s
attorney failed to advise him that he might be required to attend sex-offender treatment.
The petition states only that appellant “understood at the time [of the plea] that treatment
was not likely because this was his first offense . . . .” These alleged facts are insufficient
to support a finding that appellant was not advised of the requirement of sex-offender
treatment.
For these reasons, appellant cannot satisfy the first Strickland prong to show that
his trial counsel’s performance was defective. Moreover, even assuming that appellant’s
attorney should have informed him of the likelihood of required sex-offender treatment or
of the DNA registration requirement, these omissions did not satisfy the second
Strickland prong, that there is a reasonable probability that the result would have been
different without the errors. Contrary to appellant’s claim, the evidence against him was
strong: police legally obtained evidence that he had downloaded numerous images of
child pornography on his computer. Appellant asserts that he lacked intent to commit the
offense of conviction, but this claim is contradicted by evidence on his computer of his
use of search terms that focused on and specifically sought images of sex acts involving
children. Further, appellant’s suggestion that the typical child pornography case involves
many more images of children is of no legal import; the offense of conviction requires
possession of only one image. See Minn. Stat. § 617.247, subd. 4 (2010) (making it a
crime to “possess[] a pornographic work”). Appellant has failed to demonstrate
ineffective assistance of counsel, and the district court did not abuse its discretion by
denying appellant an evidentiary hearing.
7
Appellant also asserts that his plea was invalid because his trial attorney informed
him that he would likely lose custody of his child if he did not accept the plea offer. A
defendant does not have an absolute right to withdraw a plea. State v. Farnsworth, 738
N.W.2d 364, 371 (Minn. 2007). A defendant may withdraw a plea after sentencing only
if “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05,
subd. 1. Manifest injustice exists when a guilty plea is invalid. State v. Theis, 742
N.W.2d 643, 646 (Minn. 2007). A valid guilty plea must be accurate, voluntary, and
intelligent. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The defendant bears the
burden to establish an invalid plea. Id.
Because appellant merely identifies this issue in his pro se brief without citing
legal authority to support it, we normally would deem the issue waived. See State v.
Palmer, 803 N.W.2d 727, 741 (Minn. 2011) (holding that appellant waived ineffective
assistance of trial counsel claims by failing to include in the appellate brief “argument or
citation to legal authority in support of the allegations” and prejudicial error was not
obvious); State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (stating that when a party
makes no argument and cites no legal authority to support a claim, appellate court deems
it waived). Further, appellant’s specific allegation was that he was informed by his
attorney that the prosecution would “not try and go after your daughter if you take the
plea.” This fails under either prong of Strickland. “A guilty plea is involuntary when it
rests in any significant degree on an unfulfilled or unfulfillable promise . . . .” Uselman
v. State, 831 N.W.2d 690, 693 (Minn. App. 2013) (quotation omitted). The “promise”
here was only purportedly made by the state and relayed by his attorney. Further,
8
appellant can show no prejudice in accepting the plea when the evidence of his guilt was
strong and he received a very favorable sentence.
The other arguments raised by appellant in his pro se brief, that he has had mental-
health issues his entire life and that several of his alleged probation violations were later
withdrawn by the state, necessitate no consideration by this court. At the time of his plea,
the record does not suggest—nor was there any allegation—that appellant had a mental-
health problem that would affect his ability to enter a valid plea. His plea petition states
that he was a patient in a mental hospital and took medication for depression and anxiety,
but also states that he was not ill recently and was under the care of a psychiatrist. A
review of the plea proceedings demonstrates that appellant fully participated in the plea
hearing and that he showed no mental deficit. The record would not support a finding of
incompetence to enter a plea. See Minn. R. Crim. P. 20.01, subd. 2 (basing incompetence
to enter a plea on defendant’s inability to “understand the proceedings or participate in
the defense due to mental illness or deficiency”). Finally, the withdrawal by the state of
some of appellant’s alleged probation violations has no bearing on his claim of
ineffective assistance of counsel.
Affirmed.
9