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This opinion will be unpublished and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
A17-1092

State of Minnesota,
Respondent,

vs.

Neil Ray Lystad,
Appellant.

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

Lake of the Woods County District Court
File No. 39-CR-16-164

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

James C. Austad, Lake of the Woods Co unty Attorney, Baudette, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bjorkman, 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 Neil Ray Lystad challenge s his unlawful-possession-of-a-firearm
conviction, arguing that: (1) th e state violated his due-proce ss rights by misleading him

2
into believing that his civil rights had been restored and then prosecuting him for unlawful
possession; (2) the district court breached his plea agreement with the state by imposing a
different sentence than that negotiated under the plea agreement; and (3) he received
ineffective assistance of counsel. We affirm the conviction and determine that appellant
received effective assistance of counsel. Ho wever, we reverse and remand the district
court’s sentencing decision to conform to the terms of the plea agreement.
FACTS
In July 2016, police officers responded to an emergency call at appellant Neil Ray
Lystad’s home. Upon their arrival, appellant crawled onto the roof of the home and fired
a gun in the vicinity of the officers. Appellant stated that he “would only come out locked
and loaded.” A special response team entere d appellant’s home, placed him under arrest,
and recovered a shotgun and live ammunition. The state charged appellant with first-
degree assault, unlawful possession of a firearm, threats of violence, and domestic assault.
Appellant moved to dismiss the unlawful- possession-of-a-firearm charge for lack
of probable cause on the ground that his civi l rights had been restored. The district court
denied the motion. Appellant entered into a plea agreement with th e state in which he
pleaded guilty to an amended second-degree assault charge and to the threats-of-violence
charge. In exchange for these pleas, the state agreed to dismiss the domestic-assault charge
and agreed to a 33-month executed sentence on the amended assault charge and a 30-month
executed sentence on the threats- of-violence charge. The district court accepted the plea
agreement and found a sufficient factual basis for a finding of guilt.

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The parties submitted the unlawful-possessi on charge to the court for a stipulated-
facts trial to preserve appellant’s right to appeal the district court’s order denying dismissal.
The district court adjudicated appellant gu ilty of unlawful possession of a firearm and
imposed concurrent sentences of 60 months on the felon-in-possession charge, 36 months
on the assault charge, and 24 months on the th reats-of-violence char ge. This appeal
follows.1
D E C I S I O N
I. Appellant is not entitled to vacation of his felon-in-possession conviction.
“No person shall be held to answer for a criminal offense with out due process of
law, and no person shall . . . be deprived of life, liberty or property without due process of
law.” Minn. Const. art. I, § 7; accord U.S. Const. amend. XIV, § 1. Whether a criminal
defendant’s right to due process has been violat ed is a question of law reviewed de novo.
State v. Lehman , 749 N.W.2d 76, 82 (Minn. App. 2008), review denied (Minn. Aug. 5,
2008).
Appellant argues that his unlawful-possessi on conviction violates his due-process
rights because the state led him to believe th at his civil rights—including his right to
possess a firearm—had been restored. Appellant was prohibited from possessing a firearm
due to his conviction of a felony- level drug offense in 1999. See Minn. Stat. § 624.712,
subd. 5 (2016) (identifying controlled-substance crimes as “crimes of violence”). In 2014,

1 The state did not file a brief and this appeal proceeds under Minn. R. Civ. App. P. 142.03,
which directs that if the respo ndent fails to file its brief, “t he case shall be determined on
the merits.”

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appellant received a copy of his criminal history record from the Minnesota Bureau of
Criminal Apprehension (the BCA). Following a reference to a June 2008 impaired-driving
offense, the report states:
Civil Rights: All Civil Rights are restored and full citizenship,
with full right to vote and hold office, the same as if said
conviction had not taken place. This does not apply to any
other charges or convictions for which the subject may be
incarcerated, on probation, parole, or supervised release.
Appellant argues that this provision amounts to a restoration of his civil rights, including
his right to possess a firearm, and requires vacation of his unlawful-possession conviction.
Appellant’s argument rests on Whitten v. State, 690 N.W.2d 561 (Minn. App. 2005).
In that case, the defendant received a proba tion-discharge order indicating that he was
“restored to all civil rights and to full citizenship . . . the same as if said conviction had not
taken place.” Id. at 565. The preprinted order cont ained an unchecked-box next to a
statement indicating that the defendant could not possess a firearm for ten years, which was
unchecked. Id. When the defendant was later c onvicted of unlawfully possessing a
firearm, we vacated the conviction on the ground that the state was “precluded from
prosecuting a person who acts because of reliance on the state’s representations.” Id. We
reasoned that “due-process considerations prevent the government from informing a felon
that all his civil rights are re stored and then prosecuting hi m for an act that would have
been legal if all his civil rights had been restored.” Id.
Appellant’s reliance on Whitten is misplaced. In that cas e, the state affirmatively
misled the defendant regarding his rights by failing to check a box indicating that he was
prohibited from possessing a firearm. Id. (characterizing the state’s representation as “the

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most indefensible sort of entrapment”). No such affirmative misrepresentation exists here.
The language related to the restoration of appe llant’s civil rights follows an entry related
to an impaired-driving offense in June 200 8. The BCA report does not even reference
appellant’s 1999 drug offense, which carried the firearm prohibition. Moreover, the
provision explicitly provides that the restoration of appellant’s civil rights related to his
June 2008 offense “does not apply to any other charges or convictions for which the subject
may be incarcerated, on probation, parole, or supervised release,” which includes the 1999
drug offense. We therefore conclude that appellant’s unlawful-possession conviction does
not violate his due-process rights because the st ate did not affirmatively mislead him into
believing that his civil rights—and his ability to lawfully possess a firearm—had been
restored.
II. The district court’s sentencing decision is erroneous.
Appellant argues that the district court’s sentencing decision is erroneous and urges
this court to vacate his concurrent sentences for assault and terroristic threats and to remand
for resentencing because the sentences violate the terms of the negotiated plea agreement.
We agree. It is well settled that an unqualified promise in a plea arrangement must be
honored. Kochevar v. State , 281 N.W.2d 680, 687 (Minn. 1979). A guilty plea is
involuntary “when it rests in any significa nt degree on an unfulf illed or unfulfillable
promise.” Uselman v. State, 831 N.W.2d 690, 693 (Minn. App. 2013) (quotation omitted).
When such a promise is breached, the district court may alter the sentence, require specific
performance, or allow the defendant to withdraw his guilty plea. State v. Jumping Eagle,
620 N.W.2d 42, 43 (Minn. 2000).

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Here, appellant agreed to plead guilty to assault and to threats of violence in
exchange for 33-month and 30-month executed sentences, respectively. At sentencing, the
district court sentenced appellant to 36 months on the assault charge and 24 months on the
terroristic threats charge, representing a devi ation from the plea agreement. Because the
promise that induced appellant’s guilty plea was not honored, we determine that the district
court’s sentencing decision wa s erroneous and appellant is entitled to resentencing. See
Jumping Eagle , 620 N.W.2d at 43 (noting that a ppellate court may require specific
performance of plea agreement in lieu of plea withdrawal). On remand, we direct the
district court to resentence appellant in conformity with his negotiated plea agreement.
III. Appellant received effective assistance of counsel.
Appellant argued in his pro se brief that he did not receive effective assistance of
counsel. A defendant is entitled to effective assistance of counsel. State v. Bobo , 770
N.W.2d 129, 137 (Minn. 2009 ). To prevail on such a claim, a defendant must show
“(1) that his counsel’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 proceeding 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)). 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).
Appellant failed to satisfy his burden he re. Appellant argues that his counsel’s
representation fell below an ob jective standard of reasonableness because he failed to

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investigate the possibility of a mental-illne ss defense and request a Rule 20 competency
evaluation. See Bonga v. State , 797 N.W.2d 712, 718 (Minn. 2011) (recognizing a
defendant’s due-process right not to be tried or convicted of a criminal charge if he is
legally incompetent). In Mi nnesota, a defendant seeking to establish a mental-illness
defense must meet the M’Naghten standard codified at Minn. Stat. § 611.026 (2016). See
State v. Finn , 257 Minn. 138, 140, 100 N.W.2d 508, 510-11 (1960) (recognizing
codification of M’Naghten rule). The defendant must prove that “at the time of committing
the alleged criminal act the person was laboring under such a defect of reason, from one of
these causes, as not to know the nature of the act, or that it was wrong.” Minn. Stat.
§ 611.026. A district court may order a defendant to undergo a mental examination if the
defense notifies the state of its intent to asse rt a mental-illness defense or if the defendant
offers evidence of mental illness or deficiency at trial. See Minn. R. Crim. P. 20.02,
subd. 1.
On appeal, appellant argues that “something was in fact not right with [him] at the
time of the alleged offense” and notes that he has been diagnosed “as having a 70%
disability due to his PTSD . . . and alcoholism.” However, appellant failed to identify any
evidence in the record suppor ting these contentions. During the plea colloquy, appellant
confirmed that he had sufficient time to disc uss any potential defenses with his attorney,
and agreed that counsel represented his interests “fully.” Although defense counsel briefly
references appellant’s mental capacity as pa rt of the plea colloquy, there are no other
references to appellant’s mental state. Th is solitary reference to appellant’s mental
capacity was the extent of the discussion surro unding his competency. Appellant has not

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presented evidence suggesting that the court or trial counsel had doubts concerning
appellant’s competency. Thus, the record does not support a determination that defense
counsel’s representation fell below an objectiv e standard of reasonableness by failing to
raise it as a defense. On this record, we determine that appellant failed to satisfy the first
prong of Strickland because he did not demonstrate that his trial counsel’s performance fell
below an objective standard of reasonableness. Because this prong is determinative, we
need not address the second Strickland prong. See Strickland, 466 U.S. at 697, 104 S. Ct.
2069.
In sum, we affirm appellant’s unlaw ful-possession-of-a-firearm conviction and
determine that appellant received effective assistance of trial counsel. However, we
remand to the district court to modify a ppellant’s sentence to conform to the plea
agreement.
Affirmed in part, reversed in part, and remanded.