State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1265

State of Minnesota,
Respondent,

vs.

Antion Deion Shelby, a/k/a Antione Tony Hill,
Appellant.

Filed July 10, 2017
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CR-14-6138

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
On appeal from the denial of his petition for postconviction relief, appellant argues
that he should have been allowed to withdraw his guilty plea because his plea was not
intelligent and that he received ineffective assistance of counsel. We affirm.
FACTS
In August 2014, a ppellant Antion Deion Shelby was charged with three counts of
first-degree criminal sexual conduct for va ginally penetrating his 13 -year-old daughter
with his finger on three occasions. During each of these occasions, Shelby removed his
daughter’s clothing and inserted his finger into her vagina to “check” to make sure she was
still a virgin. When confronted by police, Shelby offered a full post -Miranda confession.
Shelby subsequently entered a straight plea to one count of first -degree criminal sexual
conduct, and the state dismissed the remaining charges.
Prior to sentencing, Shelby moved for a downward dispositional departure, arguing
that he was particularly amenable to probation. After determining that Shelby was not
amenable to probation, the dist rict court denied Shelby’s motion for a d ownward
dispositional departure and sentenced him to 199 months. Shortly after sentencing, Shelby
appealed his conviction.
While his direct appeal was pending, Shelby moved to withdraw his guilty plea,
arguing that “his attorneys forced him to plead guilty by indicating that a guilty plea could
result in a probationary sentence.” His direct appeal was stayed, pending the outcome of
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his postconviction proceedings. The postconviction court denied Shelby’s motion t o
withdraw his plea. Shelby now appeals.
D E C I S I O N
I.
Absent manifest injustice, a defendant does not have an absolute right to withdraw
a valid guilty plea. State v. Farnsworth , 738 N.W.2d 364, 371 (Minn. 2007) ; Minn. R.
Crim. P. 15.05, subd. 1. “[M]anifest injustice exists where a guilty plea is invalid.” State
v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). A guilty plea is invalid if it is not “accurate,
voluntary, and intelligent.” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).
The validity of a plea presents a question of law that an appellate court reviews de
novo. State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010). However, appellate courts
“review the postconviction court’s factual findings for clear error, and evaluate the
postconviction court’s ultimate decision to deny relief for an abuse of discretion.” Lussier
v. State, 853 N.W.2d 149, 153 (Minn. 2014).
The requirement that a guilty plea be intelligent “insures that the defendant
understands the charges, his or her rights under the law, and the consequences of pleading
guilty.” State v. Wukawitz , 662 N.W.2d 517, 522 (Minn. 2003) (quotation omitted).
Shelby argues that his plea was not intelligent for four reasons. First, Shelby insists that
his attorneys guaranteed he would rece ive probation in exchange for pleading guilty.
Second, Shelby claims that at the time of his plea, he did not understand that the first -
degree criminal sexual conduct statute, Minn. Stat. § 609.342, subd. 3 (2014), required that
the district court evaluate whether a stay of imposition or execution of his sentence would
4
be in the “best interest” of the victim. Third, Shelby argues that he was not accurately
informed about the possible length of his sentence because his attorneys were not aware of
his criminal history or criminal-history score. Fourth, Shelby claims he was not properly
advised that his probationary status at the time of his criminal conduct made it less likely
he would be granted a downward dispositional departure . We address each arg ument in
turn.
Shelby first argues that his two attorneys guaranteed he would receive probation in
exchange for pleading guilty. This argument is unsupported by the record.
At the postconviction hearing, Shelby’s lead attorney testified that he made it
“absolutely clear” to Shelby that there was no guarantee as to his sentence were he to plead
guilty, and the district court determined his testimony to be credible. A postconviction
court’s credibility findings will stand unless they are clearly erroneous. Bobo v. State, 860
N.W.2d 681, 684 (Minn. 2015). If “reasonable evidence” supports the credibility findings,
they will not be disturbed. Id. at 685.
The potential for a prison sentence was discussed repeatedly before the district court
ruled on Shelby’s motion for a downward dispositional departure. At a pre -trial hearing
where a potential plea was discussed, the state offered “that the defendant could plead to
any of the three counts and the other two would be dis missed at sentencing. The [s]tate
would agree to a guidelines sentence at the low end of the box.” The district court asked
the state if the “only offer is that [Shelby] would go to prison,” to which the state replied ,
“Yes.”
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At the plea hearing, Shelb y’s lead attorney informed the district court that Shelby
had “no plea agreement with the [s]tate.” Instead, Shelby’s lead attorney described the
plea as a “straight-up plea.” Shelby’s lead attorney informed the district court that the
defense would “make a motion for either a stay of imposition or a stay of execution,” which
the defense presumed the state would oppose. Shelby’s attorney acknowledged that “all
elements of sentencing will be up to the [district] [c]ourt.”
When entering his guilty plea, Shelby informed the district court that his plea was
voluntary, and that no one had guaranteed him a specific sentence if he pleaded guilty.
Shelby’s lead attorney also stated during the plea recital that “we’re going to make a motion
for a probationary s entence, but the [s]tate will most likely oppose that, and the [district
court] does not have to grant our motion. If [the district court] does not grant that motion,
you cannot withdraw your guilty plea.” Shelby responded that he understood. During the
plea recital, it was stated four times that the district court had discretion in granting
Shelby’s motion for a probationary sentence.
As a whole, the record contains reasonable evidence to support the postconviction
court’s credibility determination and does not support Shelby’s argument that his attorneys
guaranteed he would receive probation in exchange for a straight plea.
Second, Shelby argues that the district court and his attorneys only focused on the
necessity of treatment and that he was therefore unaware that a downward dispositional
departure required a finding that such departure would be in the best interest of the victim.
A district court may stay imposition or execution of a first-degree criminal sexual conduct
sentence if the victim has a significant relationship with the offender, the victim was under
6
16 years of age at the time of the offense, the district court finds that “a stay is in the best
interest of the [victim] or the family unit, ” and “a professional assessment indicates that
the offender has been accepted by and can respond to a treatment program .” Minn. Stat.
§ 609.342, subd. 3.
However, even if we assume that Shelby was not adequately informed of the “best
interest” prong of Minn. Stat. § 609.342, subd. 3, this error is harmless beyond a reasonable
doubt. See Hauwiller v. State, 295 N.W.2d 641, 643 (Minn. 1980) (harmless error standard
applies to postconviction review). Generally, a downward dispositional departure is only
authorized if the district court finds that “ the defendant is particularly amenable to
probation or if offense -related mitigating circumstances are present. ” State v. Love , 350
N.W.2d 359, 361 (Minn. 1984) . At sentencing, the district court did not address the best
interest of the victim, but instead stated it could not find Shelby was amenable to probation.
Shelby has a number of prior domestic assault convictions, the most recent of which
was in 2013. Additionally, Shelby has violated probation on at least four occasions in the
past and was on pr obation at the time he committed the current offense. Therefore, even
if the district court did not consider the best interests of the victim, there is sufficient
support in the record for the district court’s imposition of the presumptive sentence, due to
Shelby’s lack of amenability to probation. See State v. Van Ruler , 378 N.W.2d 77, 80
(Minn. App. 1985) (concluding there is no requirement for district court to explain decision
not to depart from presumptive sentence).
Third, Shelby argues that “because his attorneys failed to fully evaluate his situation,
their estimate of his presumptive sentence was unnecessarily flawed.” In support of his
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position, Shelby points to one of his attorneys’ statement at the plea hearing that based on
conversations between Shelby and his attorney, his attorney “ [thought] a guideline prison
sentence in this case . . . could be 168 months or 180 months.” (Emphasis added).
At the outset, we note that t his statement by Shelby’s attorney is equivocal and is
not a guarantee o f any particular sentence. As we have previously discussed , Shelby’s
attorneys testified at the postconviction hearing that they repeatedly informed Shelby both
before and after the plea hearing that no sentence was guarante ed as part of the straight
plea, and the postconviction court found the testimony of Shelby’s attorneys to be credible.
Shelby’s lead attorney admitted that he did not know Shelby’s criminal -history
score at the time of the plea hearing. Shelby’s lead attorney stated the reason for his lack
of knowledge was that a p resentence investigative report (PSI) had not been completed
before the plea hearing. The postconviction court took judicial notice that obtaining a PSI
before a plea hearing was not a standard practice in Ramsey County.
Shelby’s second attorney testified that she reviewed the sentencing guidelines with
Shelby and informed him that the sentence “would be in accordance with where his
criminal history fell.” Shelby’s second attorney testified that she was basing her sentencing
estimates on her discussions with Shelby about his criminal history prior to Shelby’s plea
hearing. Further, the plea petition Shelby signed before his plea hearing indicated that
there were “no agreements” with the state about a sentence, and that the maximum penalty
he faced was 30 years in prison.
At the postconviction evidentiary hearing, Shelby did not discuss his alleged
misunderstanding about th e 168 - or 180 -month sentencing timeframe. Instead, Shelby
8
repeatedly testified that his attorneys informed him “the only way they could keep [Shelby]
out of prison” was if he pleaded guilty. Shelby testified that he understood this to mean
that if he pleaded guilty, probation was “guaranteed.”
The Minnesota Supreme Court has been “unwilling to hold t hat a defendant must
be questioned by the trial court at the time he enters his guilty plea to insure that he
understands what the presumptive sentence is under the Minnesota Sentencing
Guidelines.” State v. Trott , 338 N.W.2d 248, 252 (Minn. 1983). Also, we observe that
Shelby fails to acknowledge that in his motion for a downward dispositional departure,
which was filed after the plea was entered but before it was accepted by the district court ,
Shelby identified that the presumptive middle-of-the-box sentence would be 234 months ,
which is the correct presumptive sentence for a first -degree criminal sexual conduct
offender with Shelby’s criminal -history score. See Minn. Sent. Guidelines 4.B (2014).
The PSI, which Shelby received before sentencing, also correctly identified the
presumptive middle-of-the-box sentence as 234 months.
Shelby, therefore, knew before his sentencing hearing what his presumptive
sentence would be if the district court did not grant his motion for a downward dispositional
departure. He made no mention of his claimed misunderstanding at the sentencing hearing,
despite ample opportunity to do so before the district court accepted his plea and ruled on
his motion for a downward dispositional departure. Therefore, this misstatement b y
Shelby’s attorney at the plea hearing regarding the potential sentence , without more, is
insufficient to rise to the level of manifest injustice necessary to render Shelby’s plea
invalid. Cf. Trott, 338 N.W.2d at 252 –53 ( concluding that defendant not entitled to
9
withdraw plea after mistake as to presumptive sentence when defendant informed of
mistake before sentencing).
Shelby finally argues that his attorneys and the district court failed to advise him of
the fact that , because he was cu rrently on probation for domestic assault at the time he
committed the criminal conduct, his motion for a downward dispositional departure was
less likely to be granted.
Shelby provides no legal authority for the position that either his attorneys or the
district court has a responsibility to inform Shelby in advance of what the “odds” are that
his motion for downward dispositional departure would be granted, and we are unable to
find any such authority.
In sum, Shelby’s arguments fail to rise to th e level of manifest injustice necessary
to render Shelby’s plea invalid.
II.
Shelby next argues that he must be allowed to withdraw his plea because he received
ineffective assistance of counsel. We disagree.
“A defendant’s guilty plea may be constitutionally invalid if the defendant received
ineffective assistance of counsel.” Sames v. State , 805 N.W.2d 565, 567 (Minn. App.
2011), review denied (Minn. Dec. 21, 2011) . Appellate courts “ review the denial of
postconviction relief based on a claim of ineffective assistance of counsel de novo because
such a claim involves a mixed question of law and fact.” Hawes v. State, 826 N.W.2d 775,
782 (Minn. 2013). However, a postconviction court’s factual findings, including
10
credibility determinations, will not be rev ersed unless clearly erroneous. Bobo, 860
N.W.2d at 684.
For Shelby to demonstrate that his counsel was ineffective, he must show both that
his “(1) counsel’s performance fell below an objective stan dard of reasonableness, and
(2) a reasonable probability exists that, but for his counsel’s unprofessional error, the
outcome would have been different.” Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009). If
Shelby cannot demonstrate his counsel’s performance was objectively unreasonable, we
need not address the effect of that performance on the outcome . Id. “There is a strong
presumption that a counsel’s performance falls within the wide range of ‘reasonable
professional assistance.’” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Shelby argues that his cou nsel’s performance fell below an objective standard of
reasonableness because his counsel had no reasonable basis to advise Shelby that he would
receive a probationary sentence if he pleaded guilty. An unqualified promise of a particular
sentence can be grounds for an ineffective assistance of counsel claim. See State v. Andren,
358 N.W.2d 428, 431 (Minn. App. 1984) (“If appellant’s trial counsel made an unqualified
promise of probation, appellant would be allowed to withdraw his plea .”). However,
Shelby’s attorney testified that he made no promises to Shelby with regard to a potential
sentence, and the postconviction court found this testimony to be credible. This credibility
determination is supported by the record, and is not clearly erroneous.
Shelby’s attorney testified that, in his opinion, entering a straight plea and moving
the district court for downward dispositional departure , rather than going to trial on three
counts of first-degree criminal sexual conduct and attempting to overcome a post-Miranda
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confession, was Shelby’s best chance at leniency.1 It is perhaps true that Shelby’s attorney
was more confident in the chances of success on a motion for downward dispositional
departure than the average attorney would have been in his situati on. However, the
postconviction court ultimately agreed that the strategy employed by Shelby’s attorney was
reasonable, stating that “[i]f [Shelby] wanted to avoid prison, his most viable option was
to plead guilty and attempt to convince the [district court] to depart” based on amenability
to probation.
We conclude that the actions of Shelby’s counsel do not depart from the actions of
a reasonable attorney to a degree sufficient to overcome the strong presumption of attorney
competence.
Affirmed.

1 Shelby does not suggest at any point in his brief that this confession does not exist, is not
valid, or is inadmissible.