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This opinion will be unpublished and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
A16-1510

State of Minnesota,
Respondent,

vs.

Cory Leo Kellermann,
Appellant.

Filed July 31, 2017
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-15-22974

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and
Kalitowski, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The district court found Cory Leo Kellermann guilty of a patt ern of stalking
conduct. Kellermann argues that he is entitled to a new trial because his trial attorney
provided him with ineffective assistance of counsel. We affirm.
FACTS
The state charged Kellermann with one count of a pattern of stalking conduct, in
violation of Minn. Stat. § 609.749, subd. 5 (2014). The complaint alleged that Kellermann
engaged in multiple incidents of hostile or abusive conduct toward his wife, C.E.H.,
between August 2012 and August 2015. Kellermann waived his right to a jury t rial. The
case was tried to the district court on two days in April 2016.
The state called nine witnesses and introduced 7 2 exhibits concerning multiple
incidents, which may be summarized as follows: In August 2012, Kellermann threw full
cans of soda and a steel ashtray at C.E.H., which caused cuts to her head. She told a police
officer that she feared that Kellermann might return to the house and kill her. Later in the
same month, Kellermann telephoned C.E.H. multiple times after being served with an OFP
and a petition for the dissolution of their marriage. She testified that the telephone calls
made her upset and nervous. In September 2012, Kellermann sent C.E.H. multiple letters
in which he sought to resume their relationship , which made her feel up set, scared, and
anxious. In December 2012, Kellermann sent C.E.H. 179 text messages over a six -day
period, some of which included photographs of Kellermann with a gun to his head or in his
mouth. C.E.H. testified that the text messages made her upset and scared. In May and
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August of 2013, C.E.H. reported to police that vehicle s at her house were on fire and that
she suspected Kellermann of setting them on fire. I n August 2015, Kellermann arrived
uninvited at C.E.H.’s home, banged on her front door, screamed, swung a baseball bat, and
threatened to hit her car with the bat. She testified that the incident made her scared and
upset.
Kellermann did not testify. After the evidentiary phase of trial, the district court
requested supplemental briefing on two specific issues. The state submitted a
memorandum. Kellermann’s trial attorney submitted a memorandum and a written closing
argument. In May 2016, the district court issued an order in which it found Kellermann
guilty. The district court sentenced Kellermann to 45 months of im prisonment.
Kellermann appeals.
D E C I S I O N
Kellermann argues that his trial attorney provided him with ineffective assistance
of counsel and that, as a consequence, he is entitled to a new trial.
“In all criminal prosecu tions, the a ccused shall enjoy the right . . . to have the
Assistance of Counsel for his defence. ” U.S. Const. amend. VI ; see also Minn. Const.
art. I, § 6. A criminal defendant’s “‘right to counsel is the right to the effective assistance
of counsel.’” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970))
(emphasis added). In most cases, an offender claiming a violation of th e constitutional
right to counsel must prove two things:
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First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixt h Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel ’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064.
In three circumstances, however, a criminal offender may establish a claim of
ineffective assistance of counsel without proving the two requirements of Strickland. See
United States v. Cronic, 466 U.S. 648, 658-62, 104 S. Ct. 2039, 2046-49 (1984). The first
and “‘[m]ost obvious’” situation is the “‘complete denial of counsel’” at a “‘critical stage.’”
Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1851 (2002) (quoting Cronic, 466 U.S.
at 659, 662, 104 S. Ct. at 2047, 2049) . The second situation is when “‘counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing. ’” Id. at 696, 122
S. Ct. at 1851 (quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). And the third situation
is when “counsel is called upon to render assistance under circumstances where competent
counsel very likely could not” do so. Id. at 696, 122 S. Ct. at 1851. In each of these three
situations, the lack of assistance is “so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 65 8, 104 S.
Ct. at 2046. These three situations constitute a “narrow exception” to the Strickland test in
which it is unnecessary to inquire into the effect of counsel’s performance because
prejudice may be presumed. Florida v. Nixon , 543 U.S. 175, 190, 125 S. Ct. 551, 562
(2004).
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Kellermann’s argument for rever sal relies both on Strickland and on Cronic’s
second exception to Strickland. He first argues that his trial attorney was ineffective
because he did not “subject the prosecution’s case to meaningful adversarial testing.” See
Cronic, 466 U.S. at 659 , 104 S. Ct. at 2047 . He argues in the alternative that his trial
attorney’s performance was deficient and that the attorney’s deficient performance
prejudiced his defense. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
A.
Kellermann first argues that his trial attorney was ineffective by not subjecting the
state’s case to meaningful adversarial testing at trial. Specifically, Kellermann asserts that
his trial attorney “waived opening statement, waived cross-examination of the majority of
the state ’s witnesses, briefly cross-examined the other witnesses on points that were
conceded by the state, failed to introduce evidence of [his] version of events, and submitted
a one-and-one-half-page written closing argument that was wholly irrelevant to a
determination of [his] guilt.”
Kellermann’s allegations concerning his trial attorney’s performance do not reflect
a failure to subject the state’s case to meaningful adversarial testing. The second Cronic
exception applies only if “the attorney’s failure [is] complete” in the sense that “‘counsel
entirely fails to subject the prosecution’s case to mean ingful adversarial testing,’” not
merely that “counsel failed to do so at specific points.” Bell, 535 U.S. at 697, 122 S. Ct. at
1851 (quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). The second Cronic exception
does not apply if defense counsel waives the opportunity to make a closing argument. Id.
at 697-98, 122 S. Ct. at 1851-52; State v. Dalbec, 800 N.W.2d 624, 628 (Minn. 2011). In
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this case, Kellermann contends that his trial attorney’s performance was deficient because,
among other things, he submitted a very short written closing argument that was unhelpful.
Kellermann’s trial attorney did more than the attorney in Dalbec; he actually submitted a
closing argument, whereas the attorney in Dalbec did not. See Dalbec, 800 N.W.2d at 628.
If the second Cronic exception did not apply in Dalbec, it also does not apply in this case.
Kellermann’s other contentions also do not fit within the second Cronic exception
because they are based on his trial attorney’s alleged failure “at specific points” in the trial
rather than his trial attorney ’s “fail[ure] to oppose the prosecution throughout ” the trial.
See Bell, 535 U.S. at 697, 1 22 S. Ct. at 1851. For example, h is allegation that his trial
attorney cross-examined only some of the state ’s witnesses and only briefly is similar to
the allegation in Darden v. Wainwright , 477 U.S. 168, 106 S. Ct. 2464 (1986), that the
offender’s trial attorney did not introduce mitigating evidence at a sentencing hearing. Id.
at 184, 106 S. Ct. at 2473 . The United States Supreme Court analyzed the offender’s
ineffectiveness claim by applying the Strickland test, not one of the exceptions in Cronic.
Id. at 184-87, 106 S. Ct. at 2473-74.
Thus, Kellermann cannot establish that his trial attorney was ineffective on the
ground that he did not subject the state’s case to meaningful adversarial testing.
B.
Kellermann argues in the alternative that his trial attorney was ineffective by
“failing to assert a legally viable defense” in his written closing argument. See Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. Specifically, Kellermann argues that his trial attorney
did not sufficiently understand the applicable law when he argued that there was a break in
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time between the first four incidents, which occurred in 2012, and the last incident, which
occurred in 2015. Kellermann contends that the argument was flawed because the state
may establish a pattern of stalking by proving that he engaged in two or more criminal acts
within a five-year period, regardless whether there is a break in time between the criminal
acts. See Minn. Stat. § 609.749, subd. 5(b); State v. Mullen, 577 N.W.2d 505, 507 (Minn.
1998).
As stated above, an offender seeking to establish ineffective assistance of counsel
generally must prove that his attorney’s “performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. An
attorney’s performance is deficient if he or she fails to “exercise[] the customary skills and
diligence that a reasonably competent attorney would exercise under the circumstances. ”
Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016). In evaluating the effectiveness of
counsel, a court “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065. That presumption is justified in part by the need to “give trial counsel wide latitude
to determine the best strategy for the client.” State v. Nicks, 831 N.W.2d 493, 506 (Minn.
2013). Accordingly, an attorney’s “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466
U.S. at 690, 104 S. Ct. at 2066.
Kellermann contends that his trial attorney’s written closing argument was deficient
because the attorney cited State v. Bustos, 861 N.W.2d 655 (Minn. 2015), an opinion that
Kellermann contends is inapplicable because it concerns a different offense, d omestic-
8
abuse murder. Kellerman’s trial attorney likely cited Bustos because the district court
referred to Bustos in a comment during the state’s oral closing argument. Given the district
court’s interest in the Bustos opinion, an attorney reasonably could decide to cite the
opinion in a written closing argument for the purpose of influencing the trial judge’s
understanding of the opinion and how it should be applied. Kellermann’s trial attorney did
not cite Bustos for purposes of the elements of the charged offense but, rather, for the
narrower principle that the state must prove each act within a pattern beyond a reasonable
doubt. See Bustos, 861 N.W.2d at 661. By citing Bustos, the trial attorney did not fail to
“exercise[] the customary skills and diligence that a reasonably competent attorney would
exercise under the circumstances.” See Swaney, 882 N.W.2d at 217.
Even if Kellermann could establish that his trial attorney ’s performance was
deficient, he would need to establish that the deficiency prejudiced his defense. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. In general, the possibility of prejudice is significantly
reduced in a court trial as compared to a jury trial. State v. Burrell, 772 N.W.2d 459, 467
(Minn. 2009); Irwin v. State , 400 N.W.2d 783, 786 (Minn. App. 1987) , review denied
(Minn. Mar. 25, 1987). In this case, Kellermann contends that, if his trial attorney had not
been focused on the closing argument that he made, he might have developed and pursued
a better theory, such as an argument that the state did not prove that Kellermann’s conduct
caused C.E.H. to fear bodily harm. The record indicates that such an argument likely would
not have prevailed because the state presented evidence that Kellermann had engaged in
violence and threats of violence and because C.E.H. testified on direct examination that
Kellerman’s violent conduct made her feel “upset” and “scared” and caused her to believe
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that he might kill her. Kellermann asserts no other reasons why the verdict might have
been different if his trial attorney had not cited Bustos in his written closing argument.
Thus, Kellermann has not established that his trial attorney ’s performance was
deficient or that any deficiency prejudiced his defense.
In sum, Kellermann is not entitled to a new trial on the ground that his trial attorney
provided him with ineffective assistance of counsel.
Affirmed.