This opinion will be unpublished and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
A15-1822
Jonathan Nicholas Turner, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed July 11, 2016
Affirmed
Reyes, Judge
Hennepin County District Court
File No. 27CR103364
Jonathan N. Turner, Stillwater, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from the denial of postconviction relief, appellant argues that (1) his
sentence is illegal; (2) he received ineffective assistance of counsel; (3) he is entitled to a
new trial based on newly discovered evidence; and (4) his plea is invalid. We affirm.
FACTS
In the early morning hours of July 29, 2003, appellant Jonathan Nicholas Turner
ambushed, shot, and killed a man. Appellant was charged with two counts of first-degree
murder, found guilty by a jury, and sentenced to life in prison plus five years.
After filing a direct appeal of his conviction to the Minnesota Supreme Court,
appellant moved to stay his appeal to pursue postconviction relief. The supreme court
granted appellant’s motion. Appellant filed a petition for postconviction relief, which the
postconviction court denied. After appealing the denial of postconviction relief to the
supreme court, appellant filed motions to reinstate his former appeal and to consolidate
his appeals, which the supreme court granted.
Before the supreme court released an opinion on appellant’s consolidated appeals,
appellant again moved to stay and remand his appeals for postconviction proceedings,
which the supreme court granted. In a negotiated plea, appellant pleaded guilty to
second-degree murder in exchange for the vacation of his first-degree murder charges and
the dismissal of his appeals. The district court vacated appellant’s 2010 convictions and
accepted appellant’s guilty plea. Appellant filed a notice of dismissal with the supreme
court, and the supreme court dismissed his consolidated appeals.
On March 26, 2015, appellant filed a second petition for postconviction relief and
argued that he should be allowed to withdraw his plea of guilty to second-degree murder.
The postconviction court denied appellant’s petition. This appeal follows.
2
DECISION
A person convicted of a crime who claims that his constitutional rights were
violated may file a petition for postconviction relief when direct appeal is not available.
Minn. Stat. § 590.01, subd. 1 (2014). “We review a denial of a petition for
postconviction relief, as well as a request for an evidentiary hearing, for an abuse of
discretion.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “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). We review legal issues de novo, but our review of factual
issues is “limited to whether there is sufficient evidence in the record to sustain the
postconviction court’s findings.” Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015)
(quotation omitted).
Appellant makes four arguments in support of his assertion that he should be
permitted to withdraw his plea: (1) his sentence is illegal; (2) he received ineffective
assistance of counsel; (3) he is entitled to a new trial based on newly discovered
evidence; and (4) his plea is invalid. We address each argument in turn.
I. Illegal sentence
Appellant argues that he was sentenced in 2013 using an incorrect criminal-history
score of three, not four, so his sentence is illegal, and he is now at the mercy of the state,
which may pursue the correction of his sentence at any time.1 We disagree.
1
The state was unable to obtain a copy of the sentencing worksheet used for appellant’s
2013 sentencing. The state did submit a sentencing worksheet which was completed in
3
The interpretation of the sentencing guidelines and rules of criminal procedure
present a legal question that we review de novo. State v. Campbell, 814 N.W.2d 1, 6
(Minn. 2012); State v. Maurstad, 733 N.W.2d 141, 146 (Minn. 2007). The state has the
burden of establishing a defendant’s criminal-history score. Bolstad v. State, 439 N.W.2d
50, 53 (Minn. App. 1989). Criminal defendants have an unwaivable right to appeal a
criminal-history score regardless of whether they raised the issue below. Maurstad, 733
N.W.2d at 146–47. A sentence based on a miscalculated criminal-history score is
unlawful and may be corrected at any time when raised by a defendant. Id. at 147; see
also Minn. R. Crim. P. 27.03, subd. 9. But the state must appeal a sentence within 90-
days after the entry of judgment and sentencing. Minn. R. Crim. P. 28.05, subd. 1.
While it does appear that appellant’s sentence was based on an incorrect criminal-
history score, appellant’s argument that his sentence is illegal nevertheless lacks merit.
Appellant cites Maurstad in support of his position. But in Maurstad, the criminal-
history score was erroneously higher than it should have been and thus improperly
increased Maurstad’s sentence. 733 N.W.2d at 144. Conversely, the error in appellant’s
case resulted in an erroneously lower criminal-history score and a reduced sentence.
Maurstad is therefore inapposite.
Our decision in State v. Rock is instructive. 380 N.W.2d 211 (Minn. App. 1986),
review denied (Minn. Mar. 27, 1986). Rock was sentenced based on an erroneously
lower criminal-history score because it excluded a felony conviction, and Rock was
2015 to support its response to appellant’s postconviction petition. The 2015 sentencing
worksheet reflects that appellant has four total criminal-history points.
4
aware of the omission. Id. at 212, 214. After Rock’s sentencing, the error was brought to
the district court’s attention, and the district court increased Rock’s sentence. Id. at 213.
On appeal, we reversed and ordered that the original sentence be reinstated. Id. at 213-
14. In so holding, we stated, “When appellant waived a presentence investigation report
and an error in his criminal history score was discovered several months later by the
[s]tate, and the [s]tate did not timely perfect a sentencing appeal, the trial court erred in
imposing a more severe sentence upon resentencing.” Id. at 214.
Here, the 90-day time period during which the state may appeal the sentence
imposed on appellant has passed. Minn. R. Crim. P. 28.05, subd. 1. Thus, under Rock,
the district court cannot impose a more severe sentence, even if the state were to seek to
extend appellant’s sentence.2 Because the state is now precluded from seeking an
extended sentence, there is no prejudice to appellant, and he is not entitled to withdraw
his plea based on an erroneous criminal-history-score calculation, which benefitted him.
II. Newly discovered evidence
Appellant next argues that the postconviction court erred by denying him a new
trial or evidentiary hearing on his claim of newly discovered evidence. Initially, we note
that this argument fails because a counseled guilty plea “has traditionally operated, in
Minnesota and in other jurisdictions, as a waiver of all non-jurisdictional defects arising
2
At appellant’s 2013 plea hearing, the parties were in agreement that a criminal-history
score of three was to be used, though the record does not explain why. The state
indicated in its brief that it has no intention of seeking an extended sentence in
appellant’s case and seems to implicitly acknowledge its obligation to honor the terms of
the plea agreement.
5
prior to the entry of the plea.” State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986) (citing
State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980)). Nevertheless, even though
appellant’s claim lacks merit, we address it because it forms the basis for his other
arguments.
When determining whether to grant a new trial based on newly discovered
evidence, a defendant must prove that the evidence: (1) was not known to appellant or his
counsel during trial; (2) could not have been discovered through due diligence before
trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an
acquittal or more favorable result. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015).
Appellant bears the burden of establishing that facts warranting relief exist by a fair
preponderance of the evidence. Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005).
And appellant must establish each of the four prongs in order to be entitled to relief.
Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
In a well-reasoned order, the postconviction court denied appellant a hearing based
on his claim of newly discovered evidence because it found that appellant failed to
establish that he did not know about this evidence, an eyewitness, at the time of trial.
Appellant concedes on appeal that he knew of this witness at the time of trial. Appellant
alleges, however, that the witness was previously unwilling to come forward and that
appellant was unsure what the witness would say. Uncertainty as to whether a witness
will come forward and what that witness’s testimony will be does not establish that the
witness was not known to appellant or his counsel during trial. Fort v. State, 829 N.W.2d
78, 83 (Minn. 2013) (concluding that, when an affidavit established that the witness was
6
with Fort on the night of the incident, Fort could not prove that the evidence was not
known to him at the time of trial). Thus, the postconviction court did not abuse its
discretion by denying appellant’s postconviction petition based on his failure to establish
the first prong of the newly discovered evidence test. We therefore need not consider the
other prongs.
III. Ineffective assistance of counsel
Appellant contends that he received ineffective assistance of counsel based on his
attorney’s failure to (1) adequately investigate appellant’s criminal-history score and
(2) advise appellant about the consequences of taking the plea bargain, particularly when
his attorney was aware of the existence of a potential witness. We are not persuaded.
We review ineffective-assistance-of-counsel claims de novo. State v. Rhodes, 657
N.W.2d 823, 842 (Minn. 2003). Ineffective-assistance-of-counsel claims arising out of
the plea process involve a two-part test. State v. Ecker, 524 N.W.2d 712, 718 (Minn.
1994) (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369 (1985)). First,
appellant must show that “counsel’s performance was deficient” by establishing that
counsel’s representation fell below an objective standard of reasonableness. Id. (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Second,
appellant must show that his counsel’s performance prejudiced his defense. Id. We need
not address both prongs if one is dispositive. Andersen v. State, 830 N.W.2d 1, 10 (Minn.
2013).
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A. Criminal-history score
Appellant alleges that his attorney’s failure to adequately investigate his criminal-
history score resulted in an “illegal sentence,” and the state may, at any time, pursue
adding three years to his sentence. As discussed previously, the state may not unilaterally
revoke appellant’s plea and seek an extended sentence as a result of an erroneous
criminal-history score. Moreover, the record reflects that appellant’s counsel secured a
more favorable sentence for appellant than that to which he was entitled based on his
criminal-history score. Thus, appellant’s argument that his counsel’s performance was
defective based on the erroneous criminal-history score calculation fails.
B. New witness and advice regarding plea
Appellant next asserts that his attorney improperly advised him to take the plea
agreement knowing that a potential exculpatory witness existed. Decisions regarding
which witnesses to call at trial and whether to advise a client to plead guilty constitute
trial strategy. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (interviewing and
calling witnesses); Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 616 (1972)
(plea bargain). We have “repeatedly stated that we generally will not review attacks on
counsel’s trial strategy.” Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).
Additionally, as previously noted, appellant was aware of this witness’s existence.
Indeed, according to a letter submitted by this witness, he was standing next to appellant
when the 2003 incident occurred.
In addition, the record reflects that appellant was properly advised as to the terms
of the plea agreement. Specifically, appellant acknowledged that, in exchange for
8
pleading guilty to second-degree murder, his first degree murder charge would be
dismissed and vacated, and he waived his right to a jury trial and the presumption of
innocence, among other rights. Appellant also acknowledged that accepting the plea
meant that he was no longer facing a life sentence plus an additional five years and that
the state would not pursue criminal charges against him in another matter. Given the
severity of the consequences appellant faced with respect to the first-degree-murder
charges and the uncertainty regarding the outcome of his appeal, appellant’s counsel’s
recommendation that appellant plead guilty to second-degree murder was reasonable.
Neither of appellant’s ineffective-assistance-of-counsel arguments establish that
his counsel’s performance was unreasonable. We therefore need not consider the second
prong of the Strickland test, and we conclude that the postconviction court did not abuse
its discretion by denying appellant postconviction relief based on his claim of ineffective
assistance of counsel.
IV. Plea validity
Finally, appellant argues that his plea is invalid because it was inaccurate and
involuntarily. We disagree.
There is no absolute right to withdraw a guilty plea, but a guilty plea must be
withdrawn “upon a timely motion and proof . . . that withdrawal [of the guilty plea] is
necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1; State v.
Theis, 742 N.W.2d 643, 646 (Minn. 2007). When a guilty plea is not accurate, voluntary,
or intelligent, a manifest injustice occurs, and the plea is rendered invalid. Theis, 742
N.W.2d at 646; see also Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997); Brown v.
9
State, 449 N.W.2d 180, 182 (Minn. 1989). “A defendant bears the burden of showing his
plea was invalid. Assessing the validity of a plea presents a question of law that we
review de novo.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
A. Accurate
Appellant contends that his plea was inaccurate because he was asked only leading
questions to establish the factual basis for his plea. “A proper factual basis must be
established for a guilty plea to be accurate.” Theis, 742 N.W.2d at 647 (quotation
omitted). The district court typically satisfies the factual basis requirement by asking the
defendant to express in his own words what happened. State v. Trott, 338 N.W.2d 248,
251 (Minn. 1983). The district court should be wary of situations in which the factual
basis is established by asking a defendant only leading questions. Ecker, 524 N.W.2d at
717. But “a defendant may not withdraw his plea simply because the court failed to elicit
proper responses if the record contains sufficient evidence to support the conviction.”
Raleigh, 778 N.W.2d at 94.
Here, sufficient evidence supports appellant’s conviction. At the plea hearing,
appellant admitted that he intended to pull the trigger and shoot the gun, he intended to
shoot and kill the victim, the victim died because of the gunshot wounds that appellant
inflicted, and appellant caused the victim’s death by intentionally shooting him. Thus,
appellant admitted to all of the elements of a second-degree intentional murder
conviction, establishing a proper factual basis. Minn. Stat. § 609.19, subd. 1 (2014).
Appellant further asserts that he was never asked whether he claimed innocence,
which violated Minn. R. Crim. P. 15.01, subd. 1(7), and that he was unable to assert his
10
innocence because he was asked only leading questions. A review of the plea-hearing
transcript shows that appellant was asked primarily leading questions and the district
court did not specifically ask appellant whether he was asserting a claim of innocence.
But as previously noted, appellant admitted to committing all the elements of second-
degree murder. And appellant could have asserted his innocence by responding in the
negative to questions regarding any actions that he claimed were not his. Moreover, the
comment to rule 15.01 recognizes that a plea may be validly entered into without strict
compliance with the rule. Minn. R. Crim. P. 15.01 cmt. (“Although a failure to include
all of the interrogation set forth in Rule 15.01 will not in and of itself invalidate a plea of
guilty, a complete inquiry as provided for by the rule will in most cases assure and
provide a record for a valid plea.”). We conclude that, under the circumstances, not
asking whether appellant claimed innocence did not invalidate his guilty plea.
B. Voluntary
Appellant argues that his plea was rendered involuntary because he received
ineffective assistance of counsel. When an accused is represented by counsel, “the
voluntariness of the plea depends on whether counsel’s advice ‘was within the range of
competence demanded of attorneys in criminal cases.’” Hill, 474 U.S. at 56, 106 S. Ct. at
369 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449 (1970)).
As previously discussed, appellant’s counsel’s advice was within the range of
competence demanded of attorneys in criminal cases. Therefore, appellant’s plea was not
rendered involuntary on this basis.
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Appellant also argues that his plea was not voluntary because he was not aware
that a witness would later come forward with “critical information.” To determine
whether a plea is voluntary, the court examines what the parties reasonably understood to
be the terms of the plea agreement. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).
The voluntariness requirement ensures a defendant is not pleading guilty due to improper
pressure or coercion. Trott, 338 N.W.2d at 251. Whether a plea is voluntary is
determined by considering all relevant circumstances. State v. Danh, 516 N.W.2d 539,
544 (Minn. 1994) (citing Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469
(1970)). As previously noted, appellant was aware of this alleged alibi witness.
Accordingly, appellant was aware that, by pleading guilty, he was taking a risk that this
individual would later agree to testify on his behalf. Appellant’s plea is not rendered
involuntary because he did not know the witness would later come forward and offer to
testify for appellant.
In sum, we conclude that the postconviction court did not abuse its discretion by
denying appellant’s petition for postconviction relief because appellant’s plea was
accurate, voluntary, and intelligent.
Affirmed.
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Jonathan Nicholas Turner v. State of Minnesota
Combined Opinion