(concurring in part, dissenting in part).
While I concur in the decision that the postconviction court did not abuse its discretion in determining that Lewis’ recantation of his plea-hearing testimony did not warrant a new trial, I respectfully dissent with respect to the decision that the post-conviction court did not abuse its discretion in denying Dukes’ ineffective assistance of counsel claim. More specifically, I disagree with the majority’s determination that the district court did not abuse its discretion in finding that statements made by Dukes’ trial counsel during closing argument “were not necessarily concessions of petitioner’s guilt as to any element.”
I.
I agree that the case presented by the prosecution was strong and that Dukes’ *819trial counsel was left with few credible arguments to present during closing. But, viewing the closing argument as a whole, I have difficulty determining exactly what argument Dukes’ trial counsel intended to make. The argument does not focus on any coherent defense. In this context, trial counsel’s statements emphasizing the strength of the evidence against Dukes take on greater than normal significance. While recognizing that the postconviction court was also the trial court, and had the advantage of hearing the argument first hand, I would conclude that the words actually used by trial counsel, as recorded in the transcript of the closing argument, are not capable of being interpreted in any way other than as a concession of guilt to Count I, the charge of attempted aggravated robbery.
It is true, as the majority observes, that Dukes’ trial counsel sometimes used a three-step process in argument, (1) repeating the argument of the state, (2) conceding the conclusion that must be drawn if the state’s argument were correct and (3) explaining why the state’s argument was not correct. But Dukes’ trial attorney did not use that three-step process in discussing Dukes’ guilt for attempted aggravated robbery under Count I.
This is most clear in connection with the first contested statement that “[cjlearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney.” Standing alone, one might posit that this statement was a rhetorical recitation of the state’s argument, which trial counsel did not accept and would refute. But when this statement is viewed in context, there is no suggestion that the statement was rhetorical or that counsel did not accept it. More importantly, trial counsel never did refute it.
The statement was made in the midst of this argument:
Now we get to the weakest evidence in the case. It’s Dukes’ ear, with two guys who pull up to a guy, and one of the men in the car say, “Give me your money” or try to rob him, Bennie Chaney. Clearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney. Can you make the leap to him aiding and abetting an attempted intentional killing of Bennie Chaney during an attempted aggravated robbery? This gets complicated. Well, you may say there was an attempted aggravated robbery. And you may say that there was an aiding and abetting. But what evidence do you have that Steve Morrison intended to kill him?
(Emphasis added.)
I do not find any point in the closing argument where Dukes’ trial counsel attempts to refute the state’s argument that Dukes was aiding and abetting an attempted aggravated robbery of Bennie Chaney. Trial counsel later argued that there was evidence that Dukes was not aiding and abetting in the second attempted robbery, of Joe McKinney. In that connection, trial counsel emphasized that there was a disagreement between Dukes and Morrison after the attempted robbery of Bennie Chaney that could be interpreted as terminating Dukes’ participation in the robbery plan. But the premise of that argument is that Dukes did participate in the plan to rob Bennie Chaney. In fact, trial counsel begins that argument by saying: “They had decided after the failed robbery to go home.” (Emphasis added.) He concludes that argument by saying: “Now, the evidence would allow you to infer, I agree, yes, it was still a concerted action [to proceed with the second attempted robbery], but there is less evidence than on the intent to show that perhaps Dukes was not [rejoining the attempted robbery of *820McKinney].” (Emphasis added.) The reference to “still a concerted action” with regard to McKinney assumes that there was concerted action with regard to Chaney.
Although the other three challenged statements might not, by themselves, constitute an implied concession, they each add to the concession made by the first challenged statement. Thus, not only did Dukes’ trial counsel fail to refute the first challenged statement that “[c]learly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney,” he actually reinforced that concession by the second challenged statement that:
Count 1 [attempted aggravated robbery], both Lewis’ plea and Lewis’ explanation to McConnon1 put Derrick Dukes right into it right up to his hips. You know it. I know it. He’s in deep trouble in Count 1.
Further reinforcement was provided by the third challenged statement “but there should be extreme doubt in your mind regarding the intent to kill Chaney, and the intent to kill McKinney, perhaps not so much as Count 1.”
In this context, I cannot view the first challenged statement of Dukes’ trial counsel as a rhetorical statement, but must conclude that it was an affirmative concession that was never qualified and never refuted. Accordingly, the postconviction court’s finding that the statements “were not necessarily concessions of [p]etitioner’s guilt as to any element” was an abuse of discretion.
This concession of guilt was a violation of Dukes’ right to assistance of counsel in several ways. First, it was a direct concession of guilt to Count I, attempted aggravated robbery. There is no evidence that Dukes’ consented to or acquiesced in the concession of guilt to Count I.
Second, a concession of guilt to attempted aggravated robbery also acts as a concession of guilt to an important element of the attempted murder and murder charges contained in Counts II and III. As we noted in Dukes II, “a concession of guilt to aggravated robbery essentially concedes most of the elements necessary to convict Dukes of the murder and attempted murder charges.” 621 N.W.2d 246, 253 (Minn.2001). It is technically true that there was one remaining element to be proven for each of those crimes, that someone, Lewis or Morrison, had the requisite “intent to effect the death of the person or another.” Minn.Stat. § 609.185(a)(3) (2002). But we noted in Dukes II that the element of intent “was proven by Lewis’ admission in his plea testimony.” Id.
Moreover, we have often recognized, in the felony murder context, that a jury can infer the intent to effect death from the mere fact that a defendant took a gun to a robbery. Thus, in State v. Campbell, 281 Minn. 1, 13, 161 N.W.2d 47, 55 (1968), we said:
Where, as here, defendant prepared himself for the robbery by taking a gun which he has first examined to make certain that it contains live ammunition, thus prepared to shoot anyone who obstructs the robbery or his escape, the inference of premeditation and intent to shoot and kill is not only permissible, but virtually inescapable.
In fact, Dukes’ trial counsel underscored this problem with the intent element of the attempted murder and murder charges in closing argument when he stated:
*821Now, it is true, it is true under liability for crimes of another that if the crime is reasonably foreseeable that takes place during the intended crime, and in this case the intended crime being robbery, then you’re guilty of that, too. And it is reasonably foreseeable to think if you bring a gun to a hold-up and someone gets shot and dies, that you are likewise responsible for it.
Based upon the postconviction court’s finding that Dukes’ trial counsel did not discuss with Dukes the strategy of conceding guilt to any element and did not obtain Dukes’ explicit agreement to such a strategy, this concession requires a new trial. In the absence of any finding by the post-conviction court that Dukes consented to or somehow acquiesced in trial counsel’s concession of guilt, prejudice is presumed and a harmless error analysis is not appropriate. Dukes II, 621 N.W.2d at 254; State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984).
II.
The posteonviction court also concluded that Dukes was procedurally barred from raising his claim of ineffective assistance of counsel in a postconviction proceeding because the legal and factual bases for that claim were known to Dukes at the time of his direct appeal. This conclusion is directly contrary to our holding in Dukes II that these claims fell within an exception to the general rule that claims raised or known at the time of direct appeal will not be considered on a petition for postconviction relief. 621 N.W.2d at 254-55. There, we recognized that the procedural bar does not apply to claims that require the court to hear testimony concerning the communications between the defendant and trial counsel. We said that “[t]he claim of whether Dukes consented to his counsel’s admission of Dukes’ guilt to aggravated robbery is exactly the type of claim that needs additional fact-finding before it can be resolved.” Id. at 255.
It might be the better practice, in future cases, to require that a defendant, who wishes to pursue a claim of ineffective assistance of trial counsel that cannot be determined on the trial record, first move to stay the direct appeal to permit postcon-viction proceedings or be deemed to have waived the claim. But we did not require that procedure in Dukes II and our determination that Dukes was not precluded from raising the claim of ineffective assistance of counsel in a postconviction petition stands as the law of the case.
Because Dukes’ trial counsel conceded Dukes’ guilt of attempted aggravated robbery, Dukes did not consent to or acquiesce in that concession, and Dukes was not precluded from seeking review of the issue in postconviction proceedings, I would reverse the district court and order a new trial.
. Kevin McConnon testified that Lewis gave him an explanation of the day of the attempted robberies that contradicted Lewis' plea testimony.