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This opinion will be unpublished and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
A16-0904

State of Minnesota,
Respondent,

vs.

Blaine Eldon Raincloud,
Appellant.

Filed April 10, 2017
Affirmed
Connolly, Judge

Beltrami County District Court
File No. 04-CR-14-3984

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

Annie P. Claesson-Huseby, Beltrami County Attorney, Kristal Kadrie, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Blair W. Nelson, Blair W. Nelson, Ltd., Bemidji, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, 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
CONNOLLY, Judge
Appellant challenges the denial of his motion to withdraw hi s guilty plea to one
count of gross -misdemeanor criminal vehicular operation, arguing that newly acquired
expert testimony regarding the central issue of the case made it fair and just to permit him
to withdraw his guilty plea and that withdrawal was necessary to correct a manifest
injustice because appellant had received ineffective assistance of counsel prior to his plea.
Because the district court did not abuse its discretion in denying appellant’s motion to
withdraw his guilty plea and because appellant did not receive ineffective assista nce of
counsel, we affirm.
FACTS
On Decem ber 23, 2014, Be ltrami County Sheriff’s deputies were told of a one -
vehicle rollover in which three individuals were involved. When the deputies arrived, they
found appellant Blaine Raincloud and two females, C.K. and L.P. The deputies noted that
appellant had an odor of alcohol, bloodshot watery eyes, and thick speech; he was unable
to perform field sobriety tests, and he failed a preliminary breath test. Appellant indicated
to the deputies that he had been the driver of the vehicle; C.K. and L.P. also indicated that
appellant had been the driver. Appellant was missing a black tennis shoe, and a black
tennis shoe was found on the floor in front of the driver’s seat.
Appellant was given a Miranda warning while being transported to a hospital. The
deputies, with a signed search warrant, took a blood sample from appellant; it indicated an
alcohol concentration (AC) of 0.254.
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Appellant was charged with two counts of felony criminal vehicular op eration and
two counts of gross -misdemeanor criminal vehicular operation. Trial was scheduled for
October 20, 2015, and, on that date, the state was prepared with 11 witnesses , and a jury
was available. Before the trial began, a ppellant decided to accept the state’s o ffer and
pleaded guilty to one count of gross-misdemeanor criminal vehicular operation.
In response to the district court’s questions, appellant said he understood that: (1) he
could have a jury trial that day; (2) the state’s offer was to let him plead guilty to one gross
misdemeanor charge in exchange for dismissal of two felony charges and another gross
misdemeanor charge; (3) he would return to the court for sentencing; and (4) the sentence
could be up to a year in jail, up to a $3,000 fine, and proba tion for three years. Appellant
told the district court he had no questions concerning his plea.
Appellant also answered “Yes” when asked if (1) he wanted to plead guilty with a
Norgaard plea “which means that you either can’t remember any of it [i.e. the incident] or
you can’t remember substantial portions”; (2) he had read the police reports; (3) he
remembered some of what was in the reports; and (4) he had been “pretty intoxicated” at
the time of the events referred to in the reports. He said that, at the hospital, a test indicated
that his AC was “a 0.255 or something.”
The prosecutor then told appellant the state’s witnes ses at trial would include:
(1) C.K. and L.P., who would testify that appellant was the driver; (2) a medical person,
who would te stify that C.K.’s and L.P.’s injuries were consistent with their being
passengers in the vehicle, not the driver; (3) a deputy, who would testify that (a) he was
first to arrive at the scene, (b) appellant admitted being the driver, (c) he observed multiple
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indicia of alcohol when speaking with appellant , and (d) appellant admitted consuming
some alcohol; (4) an officer who would testify that, at the hospital, C.K. and L.P. stated
they were not the driver of the vehicle , and one of them identified appellant as the driver;
(5) another deputy, who would testify that appellant’s wallet and a shoe were found near
the driver’s side door of the vehicle; and (6) an other medical person, who would testify
that, at the hospital, appellant’s AC was 0.254.
The district court asked appellant whether he thought that, if all this evidence were
presented to the jury and the jury believed it, there was a substantial likelihood that the jury
would find him guilty of one of the four charges or of all four (a Norgaard plea). After
being told three times that he had to answer this question “yes” or “no,” appellant answered
“Yes.”
The district court asked if they should go ahead with the trial . Appellant, who had
agreed with the district court that it was “far too risky” to have a felony on his record
because he would lose his job, said, “I will take the [state’s] deal.” Before accepting the
guilty plea, the district court asked appellant , “Are you making any claim that you are
innocent of this charge?” and appellant answered, “No.”
On November 20, 2015, appellant appeared in court pro se to move to withdraw his
guilty plea. He also indicated that he wanted to retain new counsel . Appellant’s initial
trial counsel, D.C., withdrew, and appellant obtained new counsel, B.N.
On December 31, at a hearing with B.N. on his motion to withdraw his guilty plea,
appellant testified that he repeatedly asked D.C. to obtain an accident reconstruction expert
to testify that appellant was not the driver of the vehicle. D.C. had not been called as a
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witness or subpoenaed by appellant’s new counsel and he did not testify. The district court
noted that, without D.C., there was no way to investigate the accuracy of appellant’s
testimony.
The district court denied appellant’s motion to withdraw his guilty plea and
sentenced him on one count of gross-misdemeanor criminal vehicular operation. Appellant
challenges the denial, arguing that it was an abuse of the district court’s discretion and that
he was deprived of effective assistance of counsel when he made his guilty plea.
D E C I S I O N
1. Withdrawal of guilty plea
A district court’s decision to permit withdrawal under the fair -and-just standard,
which is applied when the motion is made prior to sentencing, is discretionary. State v.
Raleigh, 778 N.W.2d 90, 97 (Minn. 2010). The district court must consider the reasons for
withdrawal and any prejudice withdrawal could cause the state,1 and this court reviews the
decision to deny a withdrawal motion for an abuse of discretion, rever sing only in a rare
case. Id.
The district court found that:
On the day of the trial, all parties and the jury were
present and prepared to go forward with trial. [Appellant]
indicated he understood his guilty plea and knew the
consequences of making such [a] plea. [Appellant] was
advised of his rights a nd the penalties of his plea. The Court

1 Appellant argues the state did not make the requisite showing of prejudice. But, at the
December 7, 2015, hearing on the motion to withdraw, the state’s attorney noted that, on
the day trial was scheduled to begin, the state “had 11 witnesses prepared” and would be
prejudiced if the plea were withdrawn because it had “released all those witnesses.”

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discussed a Norgaard basis for a plea, its requirements, and
[appellant] indicated he had gone over everything in the police
reports. [Appellant] was advised of the witnesses that would
be called at trial and the requirement for a factual basis for a
plea. [Appellant] admitted the risk [of a felony conviction] was
too high and he wanted to take advantage of a plea deal.
[Appellant] was not coerced and agreed there was a substantial
likelihood that he would be found guilty of one or all the
charges against him.

The transcript of the plea hearing supports the district court’s findings. The district court
did not abuse its discretion in finding that appellant’s plea was knowing, voluntary, and
intelligent, or in concluding that it would not be fair and just to withdraw the plea.
2. Ineffective Assistance of Counsel
The denial of postconviction relief based on a claim of ineffective assistance of
counsel is a mixed question of law and fact and is reviewed de novo. Hawes v. State, 826
N.W.2d 775, 782 (Minn. 2013).
The defendant must affirmatively prove that his counsel’s
representation fell below an objective standard of
reasonableness and that there is a reaso nable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.

Gates v. State , 398 N.W.2d 558, 561 (Min n. 1987) (quotations omitted) , quoted in
Saliterman v. State, 443 N.W.2d 841, 843-44 (Minn. App. 1989). “The evidence supports
a finding of effective representation” when the record contains testimony that the
defendant’s counsel was prepared for trial, t he defendant was fully informed of the plea
bargain and the constitutional rights he would waive by pleading guilty, and the attorney
obtained a dismissal of three of the five charges against the defendant. Id.
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Appellant argues that D.C. was ineffective because he did not locate an accident -
reconstruction expert who would have testified that appellant was not the driver of the
vehicle and claims that D.C. “ignored [appellant’s] assertion that he was not the drive r of
the vehicle.” But D.C. was aware of that assertion: at the hearing, he told the district court:
“[Appellant] believes he wasn’t driving. . . . In all sincerity and honesty, he believes that
he . . . was [not] driving. That’s why we are here. And be cause of the impairment and
because of the intoxication, he can’t say I’m guilty because he doesn’t believe he is guilty.”
At the hearing on the motion to withdraw, B.N. told the district court that he was
not calling D.C. as a witness , and D.C. was not present. The district court, after hearing
testimony about D.C.’s representation from appellant, observed that:
[Appellant] is saying one thing but we don’t have [D.C.] saying
he did or didn’t say that or he did or didn’t do that. We have
nothing.
. . . .
I’ve got nothing on the other side and anybody can make any
allegations that they want to make.
. . . .
I’m not looking for anything other than . . . what evidence is
presented to the Court. I expected [D.C.] to be here because,
again, if somebody is going to claim that somebody did or said
something then the only way – clearly, you could have
subpoenaed him for him to say I didn’t do that or I did do that,
somebody is lying or somebody is not lying. I would prefer to
have [D.C.] here. But I have t o take the evidence as it’s
presented and weigh it as I weigh any other evidence.

B.N., without giving the state prior notice, called a North Dakota attorney to testify
that D.C.’s alleged failure to hire an accident-reconstruction expert “fell below an objective
standard of reasonableness.” The district court permitted the North Dakota attorn ey to
testify but said to appellant’s attorney,
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I don’t know how you are going to deem him an expert and you
haven’t given notice to the other side so they are not prepared
for any expert testimony he may be giving. . . . I will make my
ruling on whether I will accept any of the information [he
presents]. . . . I may not consider anything he says because, one:
he is not an expert and two: . . . [the state hasn’t] be en noticed
about what he is going to testify to. . . .

Whether or not to call an accident -reconstruction expert clearly falls under trial strategy.
State v. Lahue , 585 N.W.2d 785, 789 -90 (Minn. 1998). Trial strategy is not a basis for
arguing ineffectiv e assistance of counsel. Anderson v. State , 830 N.W.2d 1, 10 (Minn.
2013).
The district court’s conclusion that “[appellant] did not show that [D.C.’s] assistance
fell below an objective standard of reasonableness, nor that there was a strong probability
that, but for [D.C.’s] errors, the result of the proceeding would have been different” is
supported by the law and the facts.
Affirmed.