A16-1196

This opinion will be unpublished and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
A16-1194
A16-1196

State of Minnesota,
Respondent,

vs.

Andre Jones,
Appellant.

Filed December 26, 2017
Affirmed
Reilly, Judge

Hennepin County District Court
File Nos. 27-CR-13-10691, 27-CR-15-31468

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presid ing Judge; Rodenberg, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Andre Jones challenges the postconviction cour t’s denial of his petition
for relief, arguing that he received ineffe ctive assistance of counsel and that the

2
postconviction court abused its discretion by denying his pe tition without an evidentiary
hearing. We affirm.
D E C I S I O N
I.
A person convicted of a cr ime may petition the district court for relief from his
conviction or sentence based on a claim that “the conviction ob tained or the sentence . . .
violated the person’s rights under the Constituti on or laws of the Unite d States or of the
state.” Minn. Stat. § 590.01, subd. 1(1) (20 16). We review the denial of postconviction
relief for abuse of discretion. Gulbertson v. State, 843 N.W.2d 240, 244 (Minn. 2014). “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.” Riley v. State, 819 N.W.2d 162,
167 (Minn. 2012) (quotations omitted). In reviewing a postconviction court’s decision to
deny relief, issues of law are reviewed de novo and issues of fact are reviewed for
sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007).
A defendant has the right to e ffective assistance of counsel. State v. Bobo , 770
N.W.2d 129, 137 (Minn. 2009). To prevail on an ineffective-assistance-of-counsel claim,
a defendant must show “(1) that his couns el’s representation ‘fell below an objective
standard of reasonableness’; and (2) ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the pr oceeding would have been different.’” Nissalke
v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668,
688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). “The objective standard of reasonableness
is defined as representation by an attorney exercising the custom ary skills and diligence

3
that a reasonably competent attorney woul d perform under similar circumstances.” State
v. Vang , 847 N.W.2d 248, 26 6-67 (Minn. 2014) (quotations omitted). Trial counsel’s
performance is presumed reasonable, Schneider v. State , 725 N.W.2d 516, 521 (Minn.
2007), and appellant bears the burden of proving both prongs of the Strickland test, Gates
v. State, 398 N.W.2d 558, 561 (Minn. 1987).
Here, appellant was convicted of first- degree burglary stemming from an incident
when he broke into an occupied home and st ole an Xbox game console. One of the
occupants of the home, A.T., woke up during the burglary and confronted appellant. A.T.
described appellant as a “black male wear ing a red and black baseball cap [and] black
clothing.” Police officers found appellant within a few blocks of the home and discovered
the Xbox leaning against a nearby house. Appellant was wearing a red and black baseball
hat, a black hooded sweatshirt, black denim pa nts, and a black tee shirt. The officers
handcuffed appellant and placed him in the backseat of the police car. The officers brought
A.T. to their squad car and asked her to participate in an identification process. The officers
asked appellant to get out of the squad car and asked A.T., “Was it him?” A.T. responded:
“Yes.” Following conviction and sentencing, appellant sought pos tconviction relief,
arguing that he was deprived of effective assistance of counsel because his attorney failed
to challenge the identification procedure.
Courts apply a two-part test to determine whether an identification procedure must
be suppressed for violating a defendant’s due-process rights. State v. Ostrem, 535 N.W.2d
916, 921 (Minn. 1995). We first look to whether the identification procedure was
“unnecessarily suggestive” in that the defendant “was unfairly singled out for

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identification.” Id. (citation omitted). “However, under the second prong of the test, the
identification evidence, even if suggestive, may be admissible if the totality of the
circumstances establishes that the evidence was reliable.” Id. (citations omitted). A
totality-of-the-circumstances analysis considers (1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the degree of attention paid to the criminal; (3) the
accuracy of the prior description of the criminal; (4) the level of certainty demonstrated by
the witness during the identification; and (5) the time between the crime and the
confrontation. Id.
We determine that the identification procedure was reliable under the totality of the
circumstances, even if the show-up identification procedure used by the police officers was
unnecessarily suggestive. See State v. Young, 710 N.W.2d 272, 282 (Minn. 2006) (stating
that identification evidence ma y be admissible if totality of circumstances establishes
reliability of evidence, even if identification procedure was unnecessarily suggestive).
First, A.T. had the opportunity to view and interact with appellant at the time of the crime.
A.T. walked into her living room and saw appellant holding her Xbox. A.T. asked, “[W]hat
are you doing? Who are you?” Appellant pushed A.T. and ran out of the house. Second,
A.T. paid a high degree of attention to appellant. She saw appellant standing in her living
room, and asked what he was doing in the house. A.T. was standing close enough to
appellant to briefly grab him as he ran out of the house. A.T. was also able to describe his
physical appearance as a “black male wear ing a red and black baseball cap [and] black
clothing.” Third, A.T.’s description of ap pellant was accurate. A.T. described what
appellant was wearing, and police officers noted that appellant was wearing a red and black

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baseball hat, a black hooded sweatshirt, black denim pants, and a black tee shirt. Fourth,
A.T. displayed a high degree of certainty dur ing the identification. Police officers asked
A.T. if appellant was the man she saw in her living room, and A.T. responded, “Yes.” The
identification occurred during the daytime, and A.T. was standing 30 to 50 feet away from
appellant when she identified him. Fifth, very little time passed between the crime and the
identification.
Taken as a whole, the identification was reliable under the totality of the
circumstances, even if the show-up identification procedure was impermissibly suggestive.
Because the identification evidence would not have been suppressed at trial, the trial result
would not have been different and trial counsel’s repr esentation did not fall below an
objective standard of reasonableness.
Because appellant’s identifi cation-procedure claim lacks merit, appellant’s trial
counsel did not act unreasonably by declining to raise the argument at trial. We ordinarily
“give trial counsel wide latitude to determ ine the best strategy for the client.” State v.
Nicks, 831 N.W.2d 493, 506 (Minn. 2013); see also Andersen v. State, 830 N.W.2d 1, 10
(Minn. 2013) (stating “[w]e will generally not review an ineffective-assistance-of-counsel
claim that is based on trial strategy” and that “[t]he extent of trial counsel’s investigation
is considered part of trial strategy”). He re, appellant cannot satisfy the two-part Ostrem
test regarding the identification procedure. And trial counsel “does not act unreasonably
by not asserting claims that counsel could have legitimately concluded would not prevail.”
Wright v. State, 765 N.W.2d 85, 91 (Min n. 2009). Thus, appellant ’s counsel did not act
unreasonably by declining to present appellant’s identification-procedure challenge at trial.

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See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (stating that “counsel has no duty to
include claims which would detract from other more meritorious issues”). The
postconviction court acted within its discre tion in denying appellant’s ineffective-
assistance-of-counsel claim.
On this record, we determine that appella nt failed to satisfy the first prong of
Strickland because he did not demonstrate that hi s trial counsel’s performance fell below
an objective standard of reasonableness. And, because a reviewing court need not address
both prongs of the Strickland test if one is dispositive, Hawes v. State, 826 N.W.2d 775,
783 (Minn. 2013), we need not reach the second prong.
II.
A postconviction court is required to hol d an evidentiary hearing on a petition
“[u]nless the petition and the file s and records of the proceedi ng conclusively show that
the petitioner is entitled to no relief. . . .” Minn. Stat . § 590.04, subd. 1 (2016); Erickson
v. State , 842 N.W.2d 314, 318 (Mi nn. 2014). Thus, a hearing is unnecessary if the
petitioner fails to allege facts that are sufficient to entitle him to the relief requested. Davis
v. State, 784 N.W.2d 387, 392 (Minn. 2010). “A ny doubts about whether to conduct an
evidentiary hearing should be resolved in favor of the defendant seeking relief.” Nicks,
831 N.W.2d at 504. We review the postconviction court’s decision on whether to hold an
evidentiary hearing for an abuse of discretion. Riley, 819 N.W.2d at 167. Here, the
postconviction court determined that appellant was not entitled to a hearing because his
claims were “without merit” and “the petition and the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief.” We ag ree with the district

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court, and determine that appellant is not entitled to an evidentiary hearing where the crux
of the dispute centers on unreviewable trial strategy. Accordingly, the postconviction court
did not abuse its discretion by denying appellant’s request for an evidentiary hearing.1
Affirmed.

1 Appellant argues that if his conviction is reversed, he is also entitled to an order vacating
two related probation revocations that were based solely on the commission of this offense.
Because appellant is not entitled to reversal, we do not reach this argument.