This opinion is nonprecedential except as provided by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
A23-1152
Alan Joseph Zakrajshek, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed April 8, 2024
Affirmed
Larkin, Judge
St. Louis County District Court
File No. 69VI-CR-21-1114
Barry S. Edwards, Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for
appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Kimberly J. Maki, St. Louis County Attorney, Aaron Welch, Assistant County Attorney,
Duluth, Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the postconviction court’s denial of his request for plea
withdrawal. We affirm.
FACTS
In 2021, respondent State of Minnesota charged appellant Alan Joseph Zakrajshek
with two counts of first-degree criminal sexual conduct based on allegations that he
engaged in sexual intercourse with a 14-year-old child when he was approximately
32-years-old.
On February 14, 2022, Zakrajshek pleaded guilty to one count of first-degree
criminal sexual conduct. The state dismissed a second count of first-degree criminal sexual
conduct and agreed to a sentencing cap of 144 months, which was the low end of the
presumptive sentencing range under the Minnesota Sentencing Guidelines. The parties
agreed that Zakrajshek would have the opportunity to argue for a downward departure at
sentencing.
When Zakrajshek tendered his guilty plea, he testified that he had sufficient time to
discuss his case with his attorney, that he was satisfied with his attorney’s representation,
and that his attorney had fully informed him of all the facts. Although Zakrajshek did not
file a plea petition during his plea hearing, he acknowledged on the record that he had fully
reviewed the contents of a petition with his attorney. Zakrajshek acknowledged that he
and his attorney had “gone through” a petition to enter a plea of guilty in a felony case; that
he and his attorney discussed “each and every one” of the 28 items on that petition; that he
understood the offense to which he was pleading guilty; that he was pleading guilty
voluntarily; and that he understood he was giving up his constitutional rights to a jury trial,
the presumption of innocence, the requirement of proof beyond a reasonable doubt, the
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right to remain silent or testify, the right to cross-examine witnesses, and the right to
challenge the state’s evidence.
The district court indicated that the parties could proceed with the understanding
that the petition had to be filed before sentencing. The district court found that there was
a sufficient factual basis for Zakrajshek’s guilty plea and deferred acceptance of his plea
pending the court’s receipt of a pre-sentence investigation (PSI) and sentencing worksheet.
On February 22, Zakrajshek filed his plea petition with the district court. The
postconviction court would later find that the petition contained “a number of check marks
and circles[,] which seem[ed] to indicate that someone had methodically gone through [it].”
On April 20, 2022, the PSI was filed with the district court. The PSI recommended that
Zakrajshek be informed of a statutorily required ten-year conditional-release period.
On April 29, 2022, the district court held Zakrajshek’s sentencing hearing.
Zakrajshek’s attorney informed the district court that he had reviewed the PSI with
Zakrajshek and that they did not have any factual objections to it. Zakrajshek’s attorney
argued for a downward sentencing departure and requested 90 months’ imprisonment
instead of 144 months. Zakrajshek addressed the district court at sentencing. He did not
indicate that he did not understand any of his rights or that he had any questions regarding
his attorney’s representation or the terms of the plea bargain. The district court denied
Zakrajshek’s request for a 90-month sentence and imposed a 144-month sentence,
consistent with the plea agreement. In pronouncing the sentence, the district court
expressly included a ten-year conditional-release period.
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In February 2023, Zakrajshek petitioned for postconviction relief, asking the
postconviction court to vacate his judgment of conviction and his sentence, asserting that
he was denied his constitutional right to effective assistance of counsel. Specifically, he
claimed that he received ineffective assistance of counsel in the plea and sentencing
proceedings and that his plea was invalid. The same judge who had presided over
Zakrajshek’s plea and sentencing hearings presided over his postconviction proceeding.
The postconviction court granted Zakrajshek’s request for an evidentiary hearing on his
petition.
At the ensuing evidentiary hearing, Zakrajshek testified that he never reviewed his
plea petition with his trial attorney prior to the plea hearing. He further testified that his
attorney told him to lie to the district court regarding his review of the petition. Zakrajshek
also testified that he signed his petition to plead guilty eight days after his plea hearing and
that he did not read the petition. Zakrajshek testified that he thought he had a “50/50
chance” of receiving probation. However, he acknowledged that he knew that a departure
was only a possibility and that his attorney never advised him that he would not be sent to
prison. He also testified that he would not have pleaded guilty if he knew he would receive
144 months in prison as opposed to 96 months.
Zakrajshek did not subpoena the attorney who represented him at the plea and
sentencing hearings. His attorney at the postconviction hearing informed the court that he
did not intend to call that attorney because he did not believe the attorney’s testimony
would be favorable. Thus, Zakrajshek was the only witness at the postconviction hearing.
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The postconviction court denied Zakrajshek’s request for relief after concluding that
Zakrajshek had “not established by a fair preponderance of the evidence that [his attorney]
failed to provide effective representation or that such failure would have changed the
outcome.” The postconviction court reasoned that Zakrajshek’s assertion that his attorney
failed to adequately inform him of his constitutional rights was not supported by the record.
The postconviction court noted that Zakrajshek’s inconsistent testimony at the plea and
postconviction hearings indicated that Zakrajshek was “asking the [c]ourt to believe he lied
to the [c]ourt in his previous submissions and is now telling the truth,” which the
postconviction court was “disinclined to do.” The postconviction court further reasoned
that Zakrajshek did not provide “any evidence regarding how [his lawyer’s] arguments at
the sentencing hearing fell below the standard of effective representation in regard to a
durational departure, and given the facts, there was no basis on which the [c]ourt would
have granted such a departure.”
Zakrajshek appeals.
DECISION
Under Minnesota’s postconviction statutes, a person convicted of a crime may seek
relief by filing a petition claiming that the conviction “violated the person’s rights under
the Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01,
subd. 1(1) (2022). “The person seeking postconviction relief bears the burden of
establishing by a preponderance of the evidence that his claims merit relief.” Crow v. State,
923 N.W.2d 2, 10 (Minn. 2019).
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We review the denial of a postconviction petition for an abuse of discretion. Colbert
v. State, 870 N.W.2d 616, 621 (Minn. 2015). In doing so, we review legal issues de novo
and factual findings for clear error. Id. 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.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted).
I.
Zakrajshek contends that he was entitled to postconviction relief because he
received ineffective assistance of counsel at the plea and sentencing phases of the
underlying proceeding.
To demonstrate ineffective assistance of counsel, a defendant must satisfy a
two-part test from Strickland v. Washington, 466 U.S. 668 (1984). Peltier v. State, 946
N.W.2d 369, 372 (Minn. 2020) (citing Strickland, 466 U.S. at 687). First, the defendant
must show that “counsel’s performance was deficient.” Strickland, 466 U.S. at 687. To
meet this standard, “the defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 687-88. Second, “the defendant must show
that [counsel’s] deficient performance prejudiced the defense.” Id. at 687. Although the
Supreme Court
discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for
a court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components
of the inquiry if the defendant makes an insufficient showing
on one.
Id. at 697.
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Zakrajshek argues that his attorney’s representation fell below an objective standard
of reasonableness because counsel allegedly failed to explain his rights to him.
Specifically, Zakrajshek argues that counsel did not show him his petition to plead guilty
or explain the waiver of rights contained therein until eight days after he tendered his guilty
plea to the court.
At the postconviction hearing, Zakrajshek testified that he did not review the plea
petition with trial counsel, that he signed the petition after the hearing without reading it,
and that he would not have pleaded guilty if he knew he would be sentenced to 144 months,
and not 96 months. But Zakrajshek acknowledged that a shorter sentence was only a
possibility, that prison was also a possibility, and that his attorney never told him that he
would not be sent to prison.
The postconviction court specifically found that Zakrajshek’s testimony in support
of his request for relief was not credible, noting that it was inconsistent with his testimony
at the plea hearing. If a defendant makes inconsistent statements regarding the validity of
his guilty plea, then “credibility determinations are crucial, [and] a reviewing court will
give deference to the primary observations and trustworthiness assessments made by the
district court.” State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), rev.
denied (Minn. June 11, 1997).
Because Zakrajshek’s testimony at the postconviction and plea hearings was
inconsistent, deference to the postconviction court’s credibility determinations is
appropriate. In fact, deference is especially appropriate here because the same judge
presided over Zakrajshek’s plea, sentencing, and postconviction hearings. Thus, we defer
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to the postconviction court’s determination that Zakrajshek’s testimony in support of his
ineffective-assistance-of-counsel claim was not credible. And because Zakrajshek
proffered no other evidence to support his assertion that trial counsel’s representation
during the plea phase was objectively unreasonable, he failed to satisfy the first part of the
Strickland test. See Griffin v. State, 941 N.W.2d 404, 409 (Minn. 2020) (concluding that
the defendant had not satisfied the first part of Strickland because “[h]e presented no
evidence to demonstrate that his trial counsel’s representation fell below an objective
standard of reasonableness other than his own testimony, and the district court did not
clearly err by finding that his testimony lacked credibility”).
Zakrajshek also argues that his attorney’s sentencing argument for a downward
departure fell below an objective standard of reasonableness. The Minnesota Sentencing
Guidelines limit the sentencing court’s discretion by prescribing a sentence or range of
sentences that is “presumed to be appropriate.” Minn. Sent’g Guidelines 2.D.1 (Supp.
2021). The district court “must pronounce a sentence . . . within the applicable prison
range . . . unless there exist identifiable, substantial, and compelling circumstances” that
distinguish a case and overcome the presumption in favor of the guidelines sentence. Id.;
see Minn. Sent’g Guidelines cmt. 2.D.103 (Supp. 2021). The district court can exercise its
discretion to depart from the guidelines “only if aggravating or mitigating circumstances
are present,” State v. Best, 449 N.W.2d 426, 427 (Minn. 1989), and those circumstances
provide a “substantial[] and compelling” reason not to impose a guidelines sentence, Minn.
Sent’g Guidelines 2.D.1 (Supp. 2021).
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We need not determine whether counsel’s argument for a downward sentencing
departure was unreasonable because Zakrajshek has not met the second part of the
Strickland test, which requires a showing of prejudice stemming from deficient
representation. As the postconviction court noted, “[g]iven the severity of the actual
offense, there was no arguable basis for the [c]ourt to grant a downward durational or
dispositional departure,” and “under the circumstances[,] the [c]ourt would not have
granted that request.” On this record, there is no basis to conclude that Zakrajshek was
prejudiced by his attorney’s representation at sentencing. Indeed, counsel’s failure to make
a more robust departure argument likely reflected the fact that the circumstances simply
did not reveal substantial and compelling reasons for a sentencing departure.
Because Zakrajshek has not shown that the outcome of his sentencing hearing would
have been different if his lawyer had made a better argument for departure, he failed to
satisfy the second part of the Strickland test. 466 U.S. at 697 (“If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”).
In sum, the postconviction court correctly determined that Zakrajshek did not meet
his burden to show ineffective assistance of counsel and therefore did not abuse its
discretion by rejecting Zakrajshek’s request for relief on that claim.
II.
Zakrajshek contends that plea withdrawal was necessary to correct a manifest
injustice. See Minn. R. Crim. P. 15.05, subd. 1 (stating that the district court must allow
plea withdrawal when “necessary to correct a manifest injustice”). A manifest injustice
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exists if a guilty plea is not valid. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). To
be valid, a guilty plea must be “accurate, voluntary and intelligent.” State v. Ecker,
524 N.W.2d 712, 716 (Minn. 1994). “A defendant bears the burden of showing his plea
was invalid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The validity of a guilty
plea is a question of law that this court reviews de novo. Id.
Zakrajshek argues that his guilty plea was defective as a matter of law because he
was never informed that his sentence would include a conditional-release period. We
question whether Zakrajshek’s request for plea withdrawal based on the imposition of a
conditional-release period is properly before us because the issue was not raised or decided
in the postconviction court. “It is well settled that a party may not raise issues for the first
time on appeal from denial of postconviction relief.” Schleicher v. State, 718 N.W.2d 440,
445 (Minn. 2006) (quotations omitted). We assume, without deciding, that the issue is
properly before us in this appeal.
Minnesota statutes mandate imposition of a ten-year conditional-release period if a
person is convicted and sentenced for first-degree criminal sexual conduct. See Minn. Stat.
§ 609.3455, subd. 6 (2020 & Supp. 2021). Although Zakrajshek may not have been aware
of the ten-year conditional-release period when he pleaded guilty, the record shows that
Zakrajshek was aware of it at sentencing. First, the PSI recommended that Zakrajshek “be
informed of his [ten]-year [c]onditional-[r]elease period.” And at sentencing, trial counsel
stated that he and Zakrajshek had “thoroughly” reviewed the PSI, and they did not object
to the PSI, including the conditional-release period. When pronouncing sentence, the
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district court informed Zakrajshek that he would serve “ten years on conditional release.”
Again, no objection or questions were raised regarding the conditional-release period.
In sum, the recommendation for and imposition of the statutorily mandated ten-year
conditional-release period was clearly communicated to Zakrajshek and his attorney at
sentencing, and Zakrajshek did not object. State v. Rhodes establishes that Zakrajshek is
not entitled to relief under those circumstances. 675 N.W.2d 323, 327 (Minn. 2004).
In Rhodes, the defendant argued that his guilty plea was not intelligent because he
was not informed of the mandatory imposition of a conditional-release period when he
entered his guilty plea. Id. Rhodes argued that “the focus in ascertaining the validity of a
guilty plea should be on what the defendant knew at the time he decided to plead guilty,
not what he may have subsequently learned from the presentence investigation report or at
the sentencing hearing.” Id. The supreme court rejected that argument and, for the reasons
that follow, agreed that Rhodes’s plea was intelligently made:
First, at both the time of his plea and of sentencing, Rhodes
was on notice that the conditional release term for sex
offenders was mandatory and could not be waived by the
district court. The statutory requirement of a conditional
release term was added in 1992, years before Rhodes entered
his plea. Second, we recognized the mandatory nature of
conditional release terms in [decisions that were
issued] . . . . [ten] months before Rhodes pleaded guilty on
May 19, 1999. Third, the postconviction court could infer from
Rhodes’ failure to object to the presentence investigation’s
recommendation, the state’s request at the sentencing hearing
and the court’s imposition of the sentence, that Rhodes
understood from the beginning that the conditional release
term would be a mandatory addition to his plea bargain.
Id. (emphasis added).
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The relevant circumstances here are like those in Rhodes. The imposition of a
mandatory conditional-release term for sex offenders was well-established at the time of
Zakrajshek’s guilty plea. See State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998) (stating
that, when applying a prior version of the statute, the terms of conditional-release statute
are “mandatory and nonwaivable”). At sentencing, both the PSI and the district court
informed Zakrajshek of the mandatory ten-year conditional-release term. Given
Zakrajshek’s failure to object to the PSI recommendation for a conditional-release term or
the district court’s imposition of that term, one can infer that Zakrajshek understood that
the conditional-release term would be a mandatory addition to his plea bargain.
Zakrajshek’s argument that caselaw compels a different outcome is unavailing
because the cases on which he relies involved circumstances in which conditional-release
terms were imposed after sentencing or in which a petition to plead guilty expressly
indicated that the parties did not contemplate a conditional-release term. Those are not the
circumstances here. See Rhodes, 675 N.W.2d at 327 (distinguishing cases in which “the
conditional release term was not mentioned at the sentencing hearing or included in the
initial sentence”); State v. Wukawitz, 662 N.W.2d 517, 523-25, 529 (Minn. 2003) (stating
that the court’s “holding is limited to those situations where the original sentence did not
include conditional release” and distinguishing cases “in which the district court failed to
impose conditional release at sentencing and later amended the sentence to add the
conditional release term”); Uselman v. State, 831 N.W.2d 690, 693-94 (Minn. App. 2013)
(refusing to apply Rhodes because “[u]nlike the plea petition in Rhodes, which was silent
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on conditional release, Uselman’s plea petition . . . . expressly declared that conditional
release was not applicable”).
Zakrajshek also argues that his guilty plea was unintelligent, once again asserting
that his attorney was ineffective because he did not explain Zakrajshek’s constitutional
rights or the consequences of his plea. “Because ineffective assistance of counsel may
render a plea constitutionally invalid, and a manifest injustice exists if a guilty plea is not
valid, a guilty plea based on ineffective assistance of counsel creates a manifest injustice
as a matter of law.” State v. Ellis-Strong, 899 N.W.2d 531, 541 (Minn. App. 2017)
(quotation and citations omitted). But as explained in section I of this opinion,
Zakrajshek’s testimony alleging ineffective assistance of counsel at the plea phase was not
credible, and he therefore failed to show ineffective assistance of counsel.
In conclusion, Zakrajshek has not shown that the postconviction court abused its
discretion by denying his request for relief. We therefore affirm.
Affirmed.
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