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This opinion will be unpublished and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
A16-1313

State of Minnesota,
Respondent,

vs.

Rebecca Lavaughn McGowan,
Appellant.

Filed May 21, 2018
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Otter Tail County District Court
File No. 56-CR-15-2311

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Pr esiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Rebecca Lavaughn McGowan appeals from the postconviction court’s
denial of her petition alleging that her trial attorney was ineffective. Appellant also argues

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that her sentence must be reversed and re manded for resentencing under the modified
sentencing grid of the Drug Sentencing Refo rm Act (DSRA). We affirm in part, reverse
in part, and remand.
FACTS
The state initially charged appellant with one count of simple robbery and one count
of fifth-degree controlled-substance possession arising from a series of events on August 4,
2015. The state amended the complaint four times. It first added a charge of first-degree
controlled-substance possession. The state then filed a second amended complaint, adding
four counts of aiding and abe tting false imprisonment, two c ounts of aiding and abetting
second-degree assault, and two counts of aiding and abetting kidnapping, all of which were
felony-level offenses. The charges in the second amended complaint alleged that appellant
and several others trapped and brutally assaulted multiple vi ctims in a hotel room while
demanding money owed to appellant as a drug debt. The state again amended its complaint
by removing two counts of false imprisonmen t and reducing the first-degree controlled-
substance possession charge to a charge of second-degree possession of six grams or more
of cocaine, heroin, or methamphetamine.
Sometime after the third amended complain t was filed and befo re appellant bailed
out of jail on November 8, 2015, the prosecutor offered a plea agreement, which appellant’s
trial counsel presented to appellant. The proposed agreement called for appellant to plead
guilty to the second-degree controlled-substance and simple-robbery charges in exchange
for the dismissal of all other charges. The agreement called for appellant to pay restitution,
serve one year in the local jail, complete a chemical us e assessment and follow its

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recommendations, and serve 25 years on proba tion. The agreement also required
appellant’s cooperation “in prov iding further truthful statements and testimony against”
her codefendants. Appellant declined this offer.
The prosecutor ema iled appellant’s trial counsel on January 6, 2016 stating that the
state planned to amend the charges to include a count of first-degree controlled-substance
sale. The email stated that the state would refrain from filing the first-degree charge if
appellant would plead guilty to the existing second-degree c ontrolled-substance charge.
The state proposed to agree to an executed 48-month sentence. The proposal also called
for appellant to plead guilty to one count of aiding-and-ab etting kidnapping and serve a
sentence concurrent with the sentence for the controlled-substance charge.
The state’s proposal of January 6 was not accepted and, on January 8, the state filed
its fourth amended complaint. This amende d complaint added the ch arge of first-degree
controlled-substance sale referenced in the prosecutor’s earlier email, but was otherwise
identical to the previous complaint. The case was tried to a jury on the 10 felony counts in
the fourth amended complaint: first-degree controlled-substance sale (count one), second-
degree controlled-substance possession (count two), simple robbery (count three), fifth-
degree controlled-substance possession (count four), two counts of aiding and abetting
false imprisonment (counts five and six), two counts of aiding and abetting second-degree
assault (counts seven and eight), and two counts of aiding and abetting kidnapping (counts
nine and ten).

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A jury found appellant guilty of all charges. The district court entered convictions
on seven counts.1 The district court sentenced appella nt to 86 months in prison on count
one, 108 months on count two, 18 months on count three, and 36 months for each of counts
seven through ten. 2 Appellant timely appealed. We later granted appellant’s motion to
stay the appeal so she could petition the district court for postconviction relief.
Appellant petitioned for postco nviction relief, alleging ineffective assistance of
counsel. Specifically, appellant alleged that her trial counse l failed to inform her of the
prosecutor’s January 6, 2016 plea offer and cont ended that she would have accepted that
offer had she been informed of it.
The postconviction court held an evidentiary hearing. Appellant testified that her
trial attorney gave her a copy of the first pr oposed plea agreement wh ile she was in jail.
After appellant bailed out of jail, she met with him and declined the plea agreement because
she “felt they came so fast w ith that Plea Agreement that there would be a better one if
[she] held out.” She also testified that sh e was afraid of her codefendants and was “very
apprehensive about testifying” against them.
Appellant testified that he r lawyer never informed her that the state had made
another plea offer on January 6, 2016. According to appellant, she did not learn about that

1 The district court did not adjudicate a ppellant guilty on the fi fth-degree controlled-
substance possession charge or the two fals e-imprisonment charges because those are
lesser-included offenses of other charges of which appellant was convicted.

2 The district court made all of the sentence s concurrent to the se ntence on count one.
Appellant’s only sentencing challenge on appeal concerns count one. She makes no other
challenge on appeal to the order or manner of sentencing.

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plea offer until after her trial when she asked her lawyer for all of the papers involved with
her case. She further testified that, had she been informed of the January 6 offer, she would
have accepted it and pleaded guilty because she r ealized that “[i]t wa sn’t getting better.”
She also explained that the January 6 offer did not include a cooperation agreement, which
was important to her because she was scared of her codefendants. On cross-examination,
appellant agreed that the January 6 email “wasn’t a complete description of what a plea to
felony offenses would include.” She also agreed that she did not know if that offer would
have included a cooperation agreement.
Appellant’s trial counsel testified at the postconviction evidentiary hearing that he
recalled receiving an email with a plea offer on January 6, and that such “informal”
methods of communicating offers were “not unusual.” He te stified that he remembered
telling appellant about the January 6 offer at an in-person meeting at some point between
January 6 and January 8, 2016, but he did not document that meeting in his case notes.
Appellant’s trial counsel stated that he “r emember[ed] the conversation very well.” He
testified that he understood that, if appellant were to accept the email offer, some specific
terms would need to be clarified. In his experience, informal offers were often incomplete.
He did not clarify these matters with the prosecutor before meeting with appellant, because
there was a short time frame within which to decide whether to accept the offer.
Appellant’s trial counsel recalle d that, when he told appella nt about the January 6 offer,
“[s]he cocked her head slightly, paused for a second or two . . . [and] said ‘can’t do it.’”
This interaction stood out in his mind, and he recalled that appellant responded “in exactly
th[ose] words.” Appellant’s trial counsel explained that, while additional implied terms to

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the agreement needed to be clarified, he did not discuss those with appellant because “[s]he
expressed her lack of interest immediately.”
The prosecutor also testified at the postconviction evidentia ry hearing. He stated
that a cooperation agreement with appellant was “fundamental to the agreement” because
the case involved multiple offenders. The pros ecutor sent the January 6 offer via email,
consistent with his routine practice concerning amended plea offers, but testified that it did
not include all terms and details of agreement. The prosecutor testified that he intended
that the January 6 email offer would include the same terms as the previous offer, including
the cooperation agreement. Because appellant did not accept the plea offer, he did not
further discuss those additional terms with a ppellant’s lawyer. The prosecutor testified
that, had appellant wished to accept the revise d plea proposal, he wo uld have prepared a
more formal plea agreement which would have then been disseminated to law-enforcement
officials and the victims, as was his usual practice, before being presented to the court.
The district court denied appellant’s petition for postco nviction relief. Appellant
appealed that denial. Appellant then moved to reinstate her previous appeal. We granted
that motion, allowing appellant to appeal “issues raised and decided in the postconviction
petition and order, as well as challenges to th e proceedings preceding the conviction and
to the sentence.”

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D E C I S I O N
I. We see no error in the postconviction court’s determinat ion that appellant
failed to establish prejudice on her ineffective-assistance-of-counsel claim.

Appellant argues that the postconviction court erred in determining that she was not
prejudiced by her lawyer’s failu re to inform her of the Janua ry 6, 2016 plea offer. She
argues that she would have accepted the offer had it been communicated to her.
A criminal defendant has the right to “effective assistance of counsel.” Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). This right extends to the
plea-negotiation process. State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). To succeed
on a claim that trial counsel was ineffective, appellant must show both that trial counsel’s
performance “(1) fell below an objective standard of reasonableness (performance prong),
and (2) that a reasonable probability exists that the outcome would have been different but
for counsel’s errors (prejudice prong).” State v. Blanche , 696 N.W.2d 351, 376 (Minn.
2005). We need not address both factors if either one is determinative. Id.
“We review ineffective assistance of counsel claims de novo because they involve
mixed questions of law and fact.” Id. “We review legal issues de novo. However, our
review of factual matters is limited to whether there is sufficient evidence in the record to
sustain the postconviction court’s findings.” State v. Blom, 682 N.W.2d 578, 624 (Minn.
2004) (quotation and citation omitted). This standard applies when an appeal from a
postconviction order merges with issu es from a stayed direct appeal. Id. We review the
postconviction court’s credibility determinations using the clearly erroneous standard.
Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015). Findings are clearly erroneous only if

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the reviewing court is “left with the definite and firm conviction that a mistake has been
made.” State v. Roberts, 876 N.W.2d 863, 868 (Minn. 2016).
“[A]s a general rule, defe nse counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408 (2012). If defense
counsel allows an offer to expire without presenting it to the defendant or allowing her to
consider it, defense counsel fails to render effective assistance under the Sixth Amendment.
Id. To demonstrate prejudice from defense counsel’s failure to inform her of a plea offer,
“a defendant must demonstrate a ‘reasonable probability’ that the defendant ‘would have
accepted the plea,’ ‘the plea offer would have been presented to the court,’ ‘the court would
have accepted its terms,’ and the sentence ‘under the offer’s terms would have been less
severe.’” Pearson v. State, 891 N.W.2d 590, 598 (Minn. 2017) (quoting Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 (2012)). “A re asonable probability means a
probability sufficient to undermine confidence in the outcome.” Leake v. State , 767
N.W.2d 5, 10 (Minn. 2009) (quotation omitted).
The postconviction court found that appellant failed to show that she was prejudiced
by the claimed failure of her trial counsel to convey the January 6 offer to her.
First, the postconviction court found th at the emailed January 6 offer was
incomplete and would not have been presente d to the district c ourt as appellant now
construes it. The postconviction court explicitly found credible the prosecutor’s testimony
“that the terms communicated in the email were not exhaustive, and that a finalized, more
formal plea agreement would still include other terms, including the cooperation

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agreement.” The postconviction court also implicitly credited the testimony of appellant’s
trial counsel that he understood the January 6 offer to contain only some of the terms that
would be in a final plea agreement, and that other terms would be included if appellant
found the amount of time to be served acceptable. Both lawyers testified that, if appellant
had agreed to the terms contained in the Janu ary 6 email, they would have clarified these
other terms before a finalized agreement was presented to the court. Appellant agreed and
understood that the January 6 email required additional terms. There is no record evidence
to support appellant’s assertion that other terms, including the co operation agreement,
would not have been included in any final ag reement. The state could have withdrawn
from the plea agreement had the parties not r eached agreement on the cooperation term.
See State v. Johnson, 617 N.W.2d 440, 443 (Minn. App. 2000) (holding that “the state may
withdraw from a plea agreement at any time before a defendant enters a guilty plea, unless
the defendant has detrimentally relied upon the agreement”). The record supports the
district court’s finding that the state would not have agreed to any negotiated plea that did
not contain a cooperation agreement.
The case on which appellant relies involves a situation where th e terms of a plea
agreement were presented to the district court on the record. In re Ashman, 608 N.W.2d
853, 854 (Minn. 2000). That case has no a pplication here. Here, no plea agreement was
ever presented to the district court, and the postconviction court found as a fact that the
January 6 email proposal was incomplete. That finding is supported by the record. It is
not our proper role to find different facts or to reevaluate the postconviction court’s
credibility determinations. Blom, 682 N.W.2d at 624; Bobo, 860 N.W.2d at 684.

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Second, the postconviction court found th at appellant failed to demonstrate a
reasonable probability that she would have accepted the January 6 offer even if it contained
a cooperation agreement. When asked if there was “anything about the terms of the second
deal that were importantly different to [her] than the terms of the first deal,” appellant stated
that the email did not include anything about testifying against her codefendants. She said
that the lack of a cooperation provision was important to her because she was afraid of her
codefendants.
The record supports appellant’s argument that the cooperation agreement was not
her sole reason for rejecting the first offer, bu t the record also show s that appellant was
concerned and “very apprehensive” about th at requirement. In her postconviction
testimony, appellant did not say that she would have accepted the email offer even with a
cooperation agreement. Instead, her attorney asked if she would have accepted the terms
as listed in the email. She said she would have. But the postconvi ction court implicitly
found that appellant failed to prove that she would have accepted the January 6 offer with
or without the cooperation agreement. (“Ev en if the Court were to credit Petitioner’s
testimony that she would have agreed to plead guilty . . .”).
The record does not “undermine confidence in [this] outcome” by showing that
appellant would have accepted the January 6 offer regard less of whether it contained a
cooperation agreement. Leake, 767 N.W.2d at 10. Instead, the record supports the
postconviction court’s factual findings.
The postconviction court properly applied the law to findings that are supported by
the record. It concluded that appellant failed to demonstrate prejudice, the second element

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of Strickland. The postconviction court therefore did not reach the first Strickland element.
It is nevertheless worth observing the impo rtance of counsel exercising care in plea
negotiations. The prosecutor’s informal em ailed offer, coupled with the failure of
appellant’s trial counsel to document his co mmunications with appellant, resulted in an
ambiguous record concerning what really ha ppened. Nevertheless, on this record, the
postconviction court’s finding that appellant fa iled to establish that she was prejudiced is
not clearly erroneous.
II. Appellant is entitled to resente ncing on count one under the DSRA.

Appellant argues that her case must be remanded for resentencing on count one
under the DSRA-amended sentencing grid. The state agrees.
The Minnesota Sentencing Guidelines prov ide presumptive sentences for criminal
offenders. Minn. Sent. Guidelines (Supp. 2015). The guidelines were amended by the
DSRA, which was signed into law on May 22, 2016. 2016 Minn. Laws. ch. 160, § 22, at
592. The majority of the ac t’s provisions became effectiv e on August 1, 2016, while
section 18 (amending the sentencing grids) went into effect on May 23, 2016. 2016 Minn.
Laws ch. 160, §§ 1-18, at 591; 22, at 592. Section 18 of the DSRA reduced the severity
level of first-degree controlled-substance crim es from a severity level 9 to a D8 on the
newly created Drug Offender Grid. Compare Minn. Sent. Guidelines 4.A (Supp. 2015),
with Minn. Sent. Guidelines 4.C (2016). Unde r the revised guidelines, the presumptive
sentence for a first-degree controlled-substanc e crime where the offe nder has a criminal
history score of zero is 65 months, with a range of 56 to 78 months. Minn. Sent. Guidelines
4.C (2016). The supreme court has held that the amended DSRA sentencing grid applies

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to cases where judgment was no t final as of May 23, 2016. State v. Kirby, 899 N.W.2d
485, 496 (Minn. 2017).
A district court enters final judgment in a criminal case when it “enters a judgment
of conviction and imposes or stays a sentence.” Minn. R. Crim. P. 28.02, subd. 2(1). A
defendant may appeal from a final judgment “w ithin 90 days after final judgment” in a
felony or gross misdemeanor case. Minn. R. Crim. P. 28.02, subd. 4(3)(a). Appellant was
sentenced on May 16, 2016, on e week before section 18 be came effective. The 90-day
time period within which appellant could file her direct appeal had not yet elapsed when
section 18 took effect on May 23, 2016; therefore, appellant’s sentence was not yet final
when section 18 became effective. Accordingly, we reverse appellant’s sentence on count
one and remand for resentencing consistent with the DSRA-amended sentencing grids.
Affirmed in part, reversed in part, and remanded.