A16-0684

This opinion will be unpublished and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
A16-0683
A16-0684

State of Minnesota,
Respondent,

vs.

Anthony K. Adams,
Appellant.

Filed March 6, 2017
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Nobles County District Court
File Nos. 53-CR-15-705, 53-CR-15-377

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

Kathleen A. Kusz, Nobles County Attorney, Matt O. Loeffler, Assistant County Attorney,
Worthington, Minnesota (for respondent)

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

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Anthony K. Adams was convi cted of violating a domestic-abuse no-
contact order (DANCO). Based on the DANCO violation, his probation in a prior assault

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case was revoked and his sentence of 120 m onths’ imprisonment was executed. In this
consolidated appeal, Adams challenges his DANCO-violation conviction, arguing that he
is entitled to a new trial because his trial c ounsel conceded guilt w ithout his consent or
acquiescence. He also challenges the revocation of probation in the assault case and asserts
that the sentence in that case must be reversed because th e sentencing court failed to
provide a valid reason for departing from the sentencing guidelines. Because Adams
acquiesced in his trial counsel’s strategy in the DANCO-violation case, we affirm that
conviction. As for the assault case, we conclude that the the district court did not abuse its
discretion in revoking probatio n; however, because the sentenci ng court in that case did
not provide a valid reason for the upward durational departure when sentencing Adams to
120 months in prison, we reverse that sentence and remand for resentencing.
FACTS
On July 17, 2015, pursuant to a plea deal, Adams plead ed guilty to second-degree
assault with a dangerous weapon inflicting substantial bodily harm (district court file
number 53-CR-15-377). Adams received a stayed prison sentence of 120 months, which
was both an upward durational departure and a downward dispositional departure from the
presumptive executed prison sentence of 60 m onths. The district court did not state a
reason for departure during th e sentencing hearing. The terms of probation included
following a DANCO that prohibited Adams from having any contact with Z.M.
On August 6, 2015, less than 24 hours afte r he was released from jail to begin his
probation, Adams was charged with violating the DANCO (district court file number 53-
CR-15-705).

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A jury trial on the DANCO-vi olation charge was held on January 8, 2016. In his
opening statement, defense counsel implied that Adams violated the DANCO but asked
the jury to find him not guilty for an extralegal reason. He stated:
Gandhi once said, “Where there is love, there is life.” Love is
the reason we’re here today. Anthony Adams stands accused
of violating a no contact order with [Z.M.] Anthony Adams
has been in love with [Z.M.] from the day they met. She is the
last thing he thinks about at ni ght before he goes to sleep, the
first thing he sees in the morni ng when he gets up. He isn’t
just a little bit in love with her, he’s madly and deeply in love
with her.
Defense counsel went on to identify the elemen ts the state would have to prove and then
identified the witnesses that the state was going to bring in to testify “[i]n order to do that.”
He continued:
As the evidence is being presen ted today, Anthony Adams is
asking you to look at it in the light of what his actions were.
He was a man in love spending time with the woman he loved.
At the end of the day, that’s what happened here today—that’s
what happened, and that’s what brought [us] into the
courthouse. So, when the State’s finished and the Defense is
finished presenting the case, it is going to be put in your hands.
What Anthony Adams is asking for is that you find him not
guilty because everything he did was for love, and there can’t
be anything wrong with love.
The state offered a copy of the DANCO and called a court employee to testify that,
according to court records, Adams was given a copy of the DANCO and it had not been
cancelled or modified at the tim e of the alleged violation. Z.M. testified that she and
Adams spoke on the ph one and went to Walm art together on August 6, 2015. The state
offered Walmart surveillance video and a still photo showin g Adams and Z.M. together,
and a Walmart employee testified that the video and photo were recorded on August 6. A

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police officer testified that on August 6 he re sponded to a report that Adams had been in
contact with Z.M. and arrested Adams after confirming that the DANCO was in effect.
Another witness, B.S., testified that he saw Adams in Z.M.’s car outside of B.S.’s residence
on August 6 while Z.M. was inside B.S.’s residence.
Adams did not testify or offer any evidence.
In his closing argument, Adams’s trial counsel stated:
Anthony Adams went to Walmart w ith [Z.M.] That’s a fact.
You’ve seen the photographs. You heard the testimony.
Anthony Adams knew of the no contact order. That, too, is a
fact, and you’ve heard the testimony. The question that needs
to be answered is why would he do these things?
. . . .
[Z.M.] stated that Anthony Adams was her boyfriend. That’s
why [Adams] was at Walmart th at day, not because he was
willfully disobeying the order, but because he was a man in
love spending time with his gi rlfriend. Anthony wants a
verdict of not guilty, not becaus e he is innocent, but because
he feels love shouldn’t be wrong , and that’s what he’s asking
for today, is just a verdict of not guilty.

The state objected, stating that “to just blatantly ask for jury nullification I don’t
think is appropriate. Why he did it isn’t an element of the offense. . . . [I]t’s not a fact in
evidence. It’s not based upon an el ement. It’s just—it’s not proper.”1 The district court
asked defense counsel to “step back” but did not rule on the state’s objection.

1 “Jury nullification, also called jury lenity, is the extraordinary power of the jury to issue
a not-guilty verdict even if the law as applie d to the proven facts establishes that the
defendant is guilty.” State v. Hooks, 752 N.W.2d 79, 86 (Minn. App. 2008).

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The jury found Adams guilty of violating the DANCO. The district court sentenced
Adams to 33 months in prison for the DANCO violation.
Immediately after sentencing for the DANCO violation, a contested probation-
violation hearing was held in the assault ca se. Adams admitted to violating a probation
condition by having contact with Z.M. The di strict court decided to revoke probation,
resulting in the execution of the 120-month prison sentence for the assault conviction. The
district court reasoned that revoking pr obation was appropriate because of Adams’s
“significant criminal history,” the fact that his “violations were consistent with [his] prior
criminal behaviors,” and the fact that he “committed this violation almost immediately
upon [his] release from custody.”
Adams appeals.
D E C I S I O N
I. Adams is not entitled to a new trial be cause he acquiesced in his trial counsel’s
strategy of conceding guilt.
Adams argues that he must be granted a new trial because his trial counsel provided
ineffective assistance of counsel by con ceding his guilt without his consent or
acquiescence. We review ineffective-assi stance-of-counsel arguments de novo. State v.
Edwards, 736 N.W.2d 334, 338 (Minn. App. 2007), review denied (Minn. Sept. 26, 2007).
To prevail on an ineffective-assistance-of-counsel argument, a defendant must show
that the “representation ‘fell below an objective standard of reasonableness’ and ‘that there
is a reasonable probability that, but for coun sel’s unprofessional errors, the result of the
proceeding would have been different.’” Gates v. State , 398 N.W.2d 558, 561 (Minn.

6
1987) (quoting Strickland v. Washington , 466 U.S. 668, 688 (1984)). When defense
counsel admits a defendant’s guilt without the defendant’s consent, “the counsel’s
performance is deficient and prejudice is presumed.” State v. Jorgensen, 660 N.W.2d 127,
132 (Minn. 2003). This is because the decision to admit guilt at trial can only be made by
the defendant. State v. Prtine , 784 N.W.2d 303, 318 (Min n. 2010). “[E]ven implied
concessions require client consent.” Dukes v. State, 660 N.W.2d 804, 812 (Minn. 2003).
An implied concession occurs when the statem ent, in context, “would lead a reasonable
person to conclude” that the attorney admitted the defendant’s guilt. Id. If the defendant’s
attorney concedes the defendant’s guilt without the defendant’s consent, the defendant “is
entitled to a new trial unless he acquiesces in the concession.” Jorgensen, 660 N.W.2d at
132.
In evaluating whether defense counsel ma de an improper concession, we first
perform a de novo review of the record to see if counsel in fact conceded the defendant’s
guilt. Prtine, 784 N.W.2d at 318. To convict Adam s of the DANCO violation, the state
was required to prove beyond a reasonable doubt that (1) there was an existing DANCO at
the time of the violation; (2) Adams knew of the existence of the DANCO; (3) Adams
violated a term or condition of that DANCO; and (4) Adams’s actions took place on or
about August 6, 2015, in N obles County, Minnesota. See Minn. Stat. § 629.75, subd. 2
(2014). Adams’s trial counsel explicitly conceded three of the elements—that there was a
DANCO and Adams was aware of it but had c ontact with Z.M. anyway—when he said
during closing argument, “Adams went to Walmart with [Z.M.] That’s a fact. . . . Adams
knew of the no contact order. That, too, is a fact.” Adams’s trial counsel also at least

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impliedly conceded guilt on the entire charge by stating that Adams “wants a verdict of not
guilty, not because he is innocent, but because he feels love shouldn’t be wrong.” We
conclude that Adams’s trial counsel conced ed Adams’s guilt and thus Adams would be
entitled to a new trial unless he consented to or acquiesced in the concession. Jorgensen,
660 N.W.2d at 132; Dukes, 660 N.W.2d at 812.
The record contains no evidence that Ad ams consented to his trial attorney’s
concession of guilt. We must therefore “loo k at the entire record to determine if the
defendant acquiesced in his counsel’s strategy.” Prtine, 784 N.W.2d at 318. A defendant
acquiesces in the concession “w hen defense counsel uses the strategy of conceding the
defendant’s guilt throughout the trial and the defendant fails to object.” Jorgensen, 660
N.W.2d at 132.
The state argues that th is case is similar to Jorgensen, in which defense counsel
stated in the opening statement and closing argument that the defendant killed his fiancée
and that the only issue for the jury was whether the act was premeditated. Id. at 130. The
supreme court in Jorgensen concluded that the defendant acquiesced in his counsel’s
concessions because the record showed that he understood that “his trial counsel was using
the strategy of conceding his inte nt to kill [the victim] in an effort to avoid conviction on
the first-degree murder charge while at the same time maintaining credibility, that the
strategy was used throughout trial, and that Jorgensen never objected.” Id. at 133.
Adams argues that he did not acquiesce be cause his trial counsel did not use the
concession strategy until closing argument. He asserts that his trial counsel, with his
consent, stipulated to one element of the offense so the jury would not hear about Adams’s

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prior convictions,2 challenged the state’s pretrial motion in limine to introduce evidence of
Adams’s postarrest conduct, and participated in some cross-examination “directed at
weakening the state’s case.” Adams argues that his trial counsel thus “actively tried to put
doubt in the jurors’ minds” and it was not un til the closing argument that his counsel
conceded his guilt. Adams argues that under these circumstances he could not have been
expected to understand that his attorney was conceding his guilt and to object during trial.
But Adams’s characterization of the concession as a surprise emerging in the closing
argument is not accurate; his trial counsel introduced the concession and jury nullification
strategy in his opening statement when he stated that Adams “was a man in love spending
time with the woman he loved” and asked for acquittal “because everything he did was for
love.” Furthermore, Adams’s trial counsel’s attempts to “weaken[] the state’s case” with
respect to the actual elements of the crime were limited. He did not challenge the existence
of the DANCO or Adams’s knowledge of the DANCO, and he did not attempt to impeach
the witnesses who said Adams was with Z.M. or to challenge the authenticity of the video
and photo that showed Adams and Z.M. together.
Because Adams’s trial counsel conceded th at Adams had contact with Z.M. in the
opening statement and closing argument and made only minor efforts to challenge the
state’s case during trial, we conclude that Adams’s trial counsel used the strategy of
conceding guilt and arguing fo r acquittal because Adams was motivated by love

2 Adams stipulated to the fact that he had been convicted of two other domestic-violence-
related offenses within ten years, a factor that elevated the penalty to the felony level under
Minn. Stat. § 629.75, subd. 2(d)(1).

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“throughout trial” within the meaning of Jorgensen. 660 N.W.2d at 132. Because Adams’s
trial counsel conceded guilt th roughout trial and Adams did no t object, we conclude that
Adams acquiesced in the concession and is not entitled to a new trial based on ineffective
assistance of counsel. Id.
II. The district court did not abuse its discretion in revoking Adams’s probation.
Adams asserts that we must reverse the district court’ s revocation of probation in
the assault case because it was an abuse of discretion. The district court has broad
discretion in determining whether there is sufficient evidence to revoke probation. State v.
Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). We reverse a district court’s decision to
revoke probation only for a clear abuse of discretion. Id.
When a defendant violates a condition of probation, the district court may revoke
probation and execute the previously stayed sentence. Minn. Stat. § 609.14, subd. 3 (2014).
Before revoking probation, the district court must: (1) designate the specific condition that
was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the
need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at
250. When evaluating the third Austin factor, the district court should not conclude that
the need for confinement outweighs the policies favoring probation unless
the court finds on the basis of the original offense and the
intervening conduct of the offender that: (i) confinement is
necessary to protect the public from further criminal activity
by the offender; or (ii) the offe nder is in need of correctional
treatment which can most effec tively be provided if he is
confined; or (iii) it would unduly depreciate the seriousness of
the violation if probation were not revoked.

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Id. at 251. “The decision to revoke probati on cannot be ‘a reflexive reaction to an
accumulation of technical violati ons but requires a showing th at the offender’s behavior
demonstrates that he or she cannot be c ounted on to avoid antisocial activity.’” State v.
Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quoting Austin, 295 N.W.2d at 251).
The district court found that Adams violated the condition that he not have contact
with Z.M. The district court found that this violation was intentional and inexcusable. The
district court found that Adams had been in court and heard the condition, but nevertheless
violated that condition less than 24 hours after his release. The district court found that
confinement is necessary to protect the public from further criminal activity by Adams and
that it would unduly depreciate the seriousness of the violation if probation were not
revoked because Adams’s actions showed that “wha t a judge tells [him], and what [he]
agree[s] to as a condition of [h is] probation didn’t seem to ma tter much at all to [him].”
The district court reasoned that confinement was needed because Adams had a “significant
criminal history,” his “violations were consistent with [his] prior criminal behaviors,” and
he “committed this violation almost immediately upon [his] release from custody.” Thus,
the district court concluded that the need for confinement outweighs any policies favoring
probation in this case.
Adams argues that the district court abused its discretion in making the third finding,
that the need for confinement outweighs policies favoring probation, because that finding
was “reflexive” and “overstated the seriousness of the violation.”
First, Adams asserts that his violation wa s “peaceful in nature and done with the
consent of Z.M., who did not want the DANCO issued in the first place,” so it should have

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been “treated as more of a contempt-of-court situation rath er than a serious criminal
offense.” Adams does not cite, and we ha ve not found, any authority supporting the
assertion that it was a clear abuse of discreti on to treat this probation violation like any
other probation violation that may trigger revocation of probation.
Second, Adams asserts that the district court “ignored the fact that the overwhelming
majority of Adams’ prior convictions occurred in 2003 or earlier.” The district court’s
decision not to weigh this fact more heavily than all of the others that did not favor Adams
is not a clear abuse of discretion.
Finally, Adams asserts that it was an abus e of discretion to revoke probation and
execute the 120-month sentence after imposing a separate 33-month sentence for the felony
DANCO violation, as the 33-month sentence is enough to protect the public and allow for
rehabilitation. Given the distri ct court’s broad discretion in deciding whether to revoke
probation, the decision to revoke probation in the assault case after imposing a separate
sentence for the DANCO violation is not a clear abuse of discretion.3
III. The 120-month sentence in the assaul t case must be reversed and the matter
remanded because district court did not state a reason for the upward
durational departure at sentencing.
Adams asserts that his sentence must be reversed and the presumptive sentence
imposed because the district court failed to state a reason for the upward durational
departure on the record at the time of sentencing.

3 As explained in Section III below, however, the 120-month sentence was error.

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The Minnesota sentencing guidelines establish sentencing ranges that are presumed
to be appropriate. State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014). The district court
must impose a sentence within the presump tive range unless substantial and compelling
circumstances distinguish the offender or the offense. Id. When the district court departs
from a presumptive sentence, it must make findings supporting the departure. Minn. R.
Crim. P. 27.03, subd. 4(C). If the district court has upwardly departed without a finding of
substantial and compelling circumstances, the matter must be remanded to the district court
for imposition of the presumptive sentence. State v. Rannow, 703 N.W.2d 575, 580 (Minn.
App. 2005). “[A]bsent a statem ent of the reasons for the sent encing departure placed on
the record at the time of sentencing, no departure w ill be allowed.” State v. Geller, 665
N.W.2d 514, 517 (Minn. 2003) (holding that the court of appeals erred in remanding to
allow the district court to state its reasons for departure after sentencing, and that the
presumptive sentence must be imposed). Even if the defendant agrees to the departure as
part of a plea agreement, the district c ourt must state substantial and compelling
circumstances for departure. State v. Haggins, 798 N.W.2d 86, 91-92 (Minn. App. 2011).
Here, the district court imposed a sentence that was an upward durational departure
and a downward dispositional departure, but the district court did not state its reasons on
the record or make findings of fact supporting the departures at that time.4

4 In the departure report completed the day after sentencing, the district court gave only an
invalid reason to support the upward durationa l departure: “The sentence was consistent
with the plea agreement. The upward durational departure was agreed to by Defendant in
return for the downward dispositional departure.” A plea agreement alone does not create
substantial and compelling circumstances and ca nnot form the sole basis of a sentencing
departure. State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).

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We reverse the sentence in district court file number 53-CR-15-377 and remand for
resentencing within the presumptive range. Geller, 665 N.W.2d at 517. However, because
the error in this case resulted from a plea agreement, the district court on remand is “‘free
to consider the effect that ch anges in the sentence have on the entire plea agreement’ and
could entertain motions to vacate the conviction a nd the plea agreement.” State v.
Montermini, 819 N.W.2d 447, 455 (Minn. App. 2012) (quoting State v. Lewis, 656 N.W.2d
535, 539 (Minn. 2003)), review denied (Minn. Aug. 11, 2009); see also Johnson v. State,
877 N.W.2d 776, 779 (Minn. 2016) (noting that if an appellate court permits a reduction in
a bargained-for sentence, the district court on remand may allow the state to withdraw from
the agreement and move forward to trial on the original charges).
Affirmed in part, reversed in part, and remanded.