State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1714

State of Minnesota,
Respondent,

vs.

John Willard Greywind, Jr.,
Appellant.

Filed March 4, 2019
Reversed and remanded
Reyes, Judge

Becker County District Court
File No. 03-CR-17-335

Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Rose A. Hanson, Assistant County
Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chan g Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the postconviction court’s summary denial of his petition for
postconviction rel ief requesting to withdraw his plea due to ineffective assistance of

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counsel, arguing that his counsel failed to advise him of the defense of voluntary
intoxication. In the alternative, appellant argues that he is entitled to withdraw his plea
because he did not enter it intelligently. Appellant also requests that this court remand the
case for an evidentiary hearing to develop facts related to his claim of ineffective assistance
of counsel. We reverse and remand.
FACTS
In February 2017, law enforcement responded to a report of a robbery at a gas station
in Audubon, Minnesota. The officers interviewed the gas-station clerk, who reported that
two men entered the store wearing bandana s over their faces and displaying knives. The
men took cigarettes and m oney from the cash register. The clerk provided officers a
physical description of the robbers, as well as a description of their clothing and the vehicle
in which they drove away.
Later that day, another officer stopped a vehicle matching that description, w ith
appellant John Willard Greywind as one of the occupants. The officer observed two knives
in plain view on the rear seat of the vehicle, and a pat -down of appellant revealed two
bandanas. A search of the vehicle pursuant to a search warrant led to the stolen cigarettes
and money from the gas station.
The state charged appellant with first -degree aggravated robbery in violation of
Minn. Stat. § 609.245, subd. 1 (2016). At the plea hearing, appellant entered a Norgaard
guilty plea.1 Appellant agreed that, if all the evidence came into trial, he would likely be

1 A Norgaard plea is a guilty plea where the defendant asserts an absence of memory of
the essential elements of the offense and reasonably believes that the state has sufficient

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convicted of the charged offense. He testified that in the days leading up to the robbery,
he had been u sing a lot of alcohol and drugs and that at the time of the robbery he was
intoxicated to the point that he could not remember what had occurred. The district court
accepted appellant’s plea and sentenced him to 58 months in prison.
Appellant filed a direct appeal, followed by a motion asking this court to stay his
appeal and remand so that he could file a petition for postconviction relief in district court.
We granted appellant’s motion. Appellant filed a petition for postconviction relief in the
form of a plea withdrawal based on ineffective assistance of counsel. The petition alleged
that he did not intelligently enter a Norgaard plea because his counsel failed to advise him
that he could present the defen se of voluntary intoxication at trial. Appellant’s petition
requested an evidentiary hearing “for the purpose of supplementing the record with
additional evidence in support of his request for relief.”
The postconviction court denied appellant’s petition in a n order without an
evidentiary hearing , holding that failing to inform appellant of th e availability of the
voluntary-intoxication defense did not constitute ineffective assistance of counsel . This
court granted appellant’s motion to dissolve the stay and reinstate his appeal.
D E C I S I O N
Appellant argues that (1) the postconviction court abused its discretion by de nying
his petition to withdraw his Norgaard plea because his trial counsel failed to advise him
about the defense of voluntary intoxication ; (2) because counsel failed to advise him that

evidence to obtain a conviction. State ex rel. Norgaard v. Tahash, 110 N.W.2d 867 (Minn.
1961).

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he could present the defense at trial, he did not intelligently enter his Norgaard plea; and
(3) if we determine that the postconviction court failed to reach or decide the factual issue
of whether appellant’s counsel did not advise him of the voluntary -intoxication defense,
this court should remand the matter for an eviden tiary hearing to develop the facts
necessary for that analysis. Appellant’s last argument has merit.
We review a denial of a peti tion for postconviction relief without an evidentiary
hearing for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013). A
postconviction court abuses its discretion if its decision relies upon an erroneous view of
the law or is contrary to logic and the facts in the record. Id.
Under Minn. Stat. § 590.04, subd. 1 (2018), a postconviction court must hold an
evidentiary hearing for a petition for postconviction relief, unless the petition, the files, and
the records of the proceedings resulting in conviction conclusively show that petitioner is
not entitled to relief. Therefore, postconviction courts have limited discretion to determine
whether an evidentiary hearing is necessary. See Brown v. State , 895 N.W.2d 612, 618
(Minn. 2017) (stating postconviction courts determine whether evidentiary hearing is
required by considering facts alleged in petition as true and construing them in light most
favorable to petitioner). Any doubts as to whether to hold an evidentiary hearing should
be resolved in favor of the petitioner. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012).
Petitions for postconviction relief based on ineffective assistance of counsel must
allege facts that, if true, would satisfy, by a preponderance of the evidence, the two -prong
test announced in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). Nicks, 831 N.W.2d at 504. Under Strickland’s first prong, petitioner must show

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that counsel’s performance “fell below an objective standard of reasonableness.” Sames v.
State, 805 N.W.2d 565, 567 (Minn. App. 2011) (quoting Staunton v. State , 784 N.W.2d
289, 300 (Minn. 2010)) (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 206 4). An
“objective standard of reasonableness” is defined as the level of customary skill and
diligence that a reasonably competent attorney would employ in represent ation under
similar circumstances. Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009). On review, w e
presume that counsel provided reasonable performance. Id. Under Strickland’s second
prong, petitioner must demonstrate prejudice as a result of counsel’s deficient performance
by establishing that “a reasonable probability exists that, but for counsel’s errors, the
outcome would have been different.” Sames, 805 N.W.2d at 567 (quoting Staunton, 784
N.W.2d at 300).
Here, t he postconviction court denied appellant’s petition , without holding an
evidentiary hearing, because (1) any answer as to whether or why appellant’s counsel failed
to inform him of an available defense constitutes trial strategy which courts are hesitant to
review; (2) the facts appellant admitted to at the plea hearing for the purpose of entering
his Norgaard plea demonstrated the specific intent necessary to support his conviction; and
(3) a jury would have likely rejected the voluntary-intoxication defense as negating specific
intent.
The standard for evidentiary hearings set out in Minn. Stat. § 590.04, subd. 1,
supports the conclusion that the postconviction court should have held an evidentiary
hearing because the record does not conclusively show that appellant is not entitled to relief
under the Strickland test. The record establishes that the state charged appellant with first-

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degree aggravated robbery , a specific -intent crime ; at the time of the robbery he was
intoxicated to the point that he could not remember what had occurred; he proffered a
Norgaard plea, under Minn. Stat. § 609.075 (2016); there exists the defense of voluntary
intoxication for specific -intent crimes ; and appellant alleged that his counsel failed to
advise him of this defense before proffering his Norgaard plea. In appellant’s affidavit in
support of his petition, he state d that, if counsel had advised him about the voluntary-
intoxication defense, “[he] would not have told the judge at [his] plea hearing that [he]
believed the state had enough evidence to prove [his guilt],” and that, had counsel advised
him of the defense, “[he] would not have agreed to the plea bargain or to enter a Norgaard
plea . . . [he] would have instead decided to go to trial.”
A Norgaard plea is closely related to a voluntary-intoxication defense as they both
rely on a defendant’s intoxication. Norgaard pleas offer intoxication as a reason for a
defendant’s inability to recall the events of a crime . A voluntary -intoxication defense
offers intoxication as an explanation for a defendant’s actions. A voluntary-intoxication
defense might affect a jury’s determination of whether a defendant possessed the necessary
specific-intent for a particular crime . Both appl ied to appellant’s offense. Even if
appellant’s counsel started and then later abandoned his investigation into potential
defenses, such a decision may constitute adequate assistance if it was reasonable under the
circumstances. Swaney v. State , 882 N.W.2d 207, 218 (Minn. 2016). However, if
appellant’s counsel failed to investigate potential defenses due to inattention or neglect,
rather than a considered choice, this may constitute ineffective assistance. Id.

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A postconviction court may den y an evidentiary hear ing only if the record
conclusively shows that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd.1.
Here, the record is substantially less developed than most postconviction cases claiming
ineffective assistance of counsel. Therefore, the postconviction court did not have
sufficient facts to determine whether appellant’s allegations of ineffective counsel, if true,
would have satisfied the Strickland test by a preponderance of the evidence.
Absent a plea record that definitively shows whether or why appellant’s counsel
failed to advise him of the availability of a voluntary-intoxication defense, any decision by
this court regarding appellant’s first and second arguments would be pure speculation. The
postconviction court should have held an evidentiary hearing to obtain additional facts to
explain appellant’s counsel’s decisions before ruling on appellant’s postconviction claim .
Therefore, because the record is not sufficiently developed, we decline to address
appellant’s first and second arguments, and we reverse and remand for an evidentiary
hearing.
Reversed and remanded.