Charles Winston, petitioner, Appellant,

This opinion will be unpublished and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
A17-1777

Charles Winston, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 1, 2018
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-15-9534

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Rodenberg, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 201 6, C harles Winston pleaded guilty to second -degree controlled-substance
crime. Before sentencing, he moved to withdraw his guilty plea, but the district court

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denied the motion. In 2017, he petitioned for post-conviction relief on the ground that the
attorney who represented him in 2016 provided him with ineffective assistance of counsel
during the period of time between his plea hearing and his sentencing hearing. The post-
conviction court denied the petition. We affirm.
FACTS
In April 2015, the state charged Winston with second-degree controlled-substance
crime, in violation of Minn. Stat. § 152.022, subd. 1(1) (2014). The complaint alleged that
Winston sold crack cocaine to an undercover police officer on thr ee occasions. Winston
and the s tate entered into a plea agreement in which the state agreed to recommend a
sentence of 60 months of imprisonment, which was a downward durational departure from
the applicable presumptive guidelines range. See Minn. Sent. Guidelines 4.A. (2014). In
addition, the state agreed to dismiss four other pending criminal charges against Winston.
At a plea hearing on January 7, 2016, the district court accepted Winston’s plea and
placed him on conditional release pending sentencing. At the conclusion of the plea
hearing, the district court cautioned Winston that he was required to abide by the terms of
the plea agreement and to appear for his sentencing hearing:
I know you understand I ’m willing to go along with the plea
agreement, including this conditional rele ase that was agreed
upon by you and the State. However, if you don’t show up for
sentencing, if you don ’t remain law abiding, and if you don ’t
cooperate, you are facing a very long prison sentence. And
that’s the sentence you ’ll receive. All right. So I’ll see you
then on February 24th at 1:30.

After the plea hearing and while on conditional release, Winston initiated an
exchange of e-mail messages with his attorney. On January 14, 2016, he wrote to say that

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he was “not feeling good at all” about his guilty plea, that he felt “like [he] did the wrong
thing,” and that “the time does not add up for the crime.” His attorney responded the next
day, saying that “60 months is a lot” but that Winston would be “in a much worse position”
if there were no agreement on a sentence. On January 20, Winston wrote again, saying, in
part, “I’ll turn myself in right now . . . the deal is off . . . way too much time.” His attorney
responded one minute later , saying: “I understand that 60 [months] is a lot, but you wil l
get something much, much worse from the judge. He told you that, and I believe him. It’s
the least -bad alternative. ” Winston re plied a few minutes later, saying: “I’ll take my
chances how do we proceed.” His attorney responded again six minutes later, explaining
that because Winston had five pending cases, the plea agreement was “the best deal
possible” and that, if Winston were to withdraw his guilty plea, he might receive a sentence
of 100 months or more, which she described as “not a good outcome. ” Winston and his
attorney exchanged three more e-mail messages that day, and she agreed to look into
whether Winston would be “eligible for boot camp.”
Winston sent his attorney a follow-up e-mail message on January 25. His attorney
responded the next day, saying, “I am working on it,” and describing her efforts. Winston
replied the following day and also sent a follow -up e-mail message on February 4 . His
attorney responded the next day, saying that she had been in trial all week and was “playing
phone tag” with an employee of the department of corrections. Winston sent two more e -
mail messages on February 6 and February 8, in which he reiterated th at he was “not
happy” about “this situation.” He sent another f ollow-up message on February 12 . His
attorney responded that day with a three-paragraph message concerning the possibility of

4
boot camp and the benefits of not seeking to withdraw his guilty plea. On February 15,
Winston sent two more e-mail messages. In the first, he wrote, “I don’t want this deal no
more we need to get back in court today . . . I’m ready to turn myself in now. ” In the
second, he wrote, “Email who you need to . . . I’ll be waiting to turn myself in asap.” No
further responses from Winston’s attorney are in the record.
On February 24 , Winston did not appear for his sentencing hearing. A bench
warrant was issued, and Winston was arrested on March 22. The district court rescheduled
his sentencing hearing for April 5 . One day before the rescheduled sentencing hearing,
Winston’s attorney filed a written motion to withdraw Winston’s guilty plea . In the
accompanying memorandum of law, Winston’s attorney argued that it would be “fair and
just” to permit Winston to withdraw his guilty plea because “he was pressured into taking
a plea offer he did not fully understand” and because “he was rushed into making a decision
about pleading guilty.”
At the beginning of the sentencing h earing on April 5 , counsel for the parties
presented their oral arguments on Winston’s motion. After stating that it had reviewed the
motion filed by Winston’s attorney , t he district court orally denied the motion on the
ground that Winston “fully understood the plea agreement, which was a very favorable
agreement to him. ” The district court also noted that the agreement gave Winston an
opportunity to be released for a period of time before being sentenced.
The district court then proceeded to the issue of sentencing. The prosecutor
requested a presumptive sentence in light of Winston’s failure to appear for the originally
scheduled sentencing hearing . Winston’s attorney requested a 60 -month sentence, as

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agreed upon earlier, or, in the alternative, the shortest presumptive sentence. When the
district court gave Winston an opportunity for allocution, he stated that he had not wanted
to plead guilty and that, after he did so, he e -mailed his attorney to say t hat he instead
wanted to go to trial. His attorney interjected to say that she and Winston “were having
some email discussions back and forth” before the originally scheduled sentencing hearing
but had “not reached a final resolution on that. ” The district court imposed a sentence of
108 months of imprisonment, which is within the applicable presumptive guidelines range.
See Minn. Sent. Guidelines 4.A. (2014).
In March 2017, Winston filed a post-conviction petition. He claims that the attorney
who represented him at his plea hearing and his sentencing hearing provided him with
ineffective assistance of counsel when she “failed to respond to his email request about
turning himself in and withdrawing his guilty plea prior to sentencing.” He requested relief
in the form of leave to withdraw his guilty plea or, in the alternative, the 60-month sentence
that was part of the plea agreement. Winston submitted an affidavit in which he stated that
he did not appear at the sentencing hearing scheduled f or February 24, 2016, “because I
had not yet heard back from [my attorney] about my desire to turn myself in and withdraw
my plea.” The post-conviction court denied Winston’s petition in a 12-page order, without
an evidentiary hearing. Winston appeals.
D E C I S I O N

Winston argues that the post-conviction court erred by denying his post-conviction
petition.

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A criminal offender may file a post -conviction petition to challenge his criminal
conviction. Minn. Stat. § 590.01, subd. 1 (20 16). A post -conviction petition “shall
contain . . . a statement of the facts and the grounds upon which the petition is based and
the relief desired.” Minn. Stat. § 590.02, subd. 1(1) (2016). “All grounds for relief must
be stated in the petition or any amendment thereof unless they could not reasonably have
been set forth therein.” Id. “[T]he burden of proof of the facts alleged in the petition shall
be upon the petitioner to establish the facts by a fair preponderance of the evidence.” Minn.
Stat. § 590.04, subd. 3 (2016). A post-conviction court, in its discretion, “may receive
evidence in the form of affidavit, deposition, or oral testimony. ” Id. A district court may
deny a petition for post -conviction relief without an evidentiary hearing if “the files and
records of the proceeding conclusively show that the petitioner is entitled to no relief.” Id.,
subd. 1; see also Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018). As a general rule,
this court applies an abuse-of-discretion standard of review to a post -conviction court’s
denial of relief. Sanchez v. State, 890 N.W.2d 716, 719-20 (Minn. 2017). We apply a de
novo standard of review to a post-conviction court’s determination of a claim of ineffective
assistance of counsel if such a claim presents a mixed question of law and fact. See Pearson
v. State, 891 N.W.2d 590, 600 (Minn. 2017).
The underlying basis of Winston’s post -conviction petition is his claim of
ineffective assistance of counsel in violation of the Sixth Amendment to the United States
Constitution. Winston intersperses his argument with references to a defendant ’s right to
withdraw a guilty plea to correct a manifest injustice, see Minn. R. Crim. P. 15.05, subd.
1, which exists if a guilty plea is inaccurate, unintelligent, or involun tary, Dikken v. State,

7
896 N.W.2d 873, 876 (Minn. 2017) ; State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010) .
But Winston does not allege that his attorney provided him with ineffective assistance
before or at the time of his guilty plea, which, if true, would establish that his guilty plea is
invalid because it was involuntary. See, e.g., Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 369 (1985). Instead, Winston alleges that his attorney provided him with ineffective
assistance after his guilty plea, while he was awaiting sentencing. Specifically, he alleges
that his attorney was ineffective on the ground that she was not more responsive to his e -
mail messages, in which he expressed his desire to withdraw his guilty plea and go to trial,
and did not file a motion for leave to withdraw his guilty plea before his originally
scheduled sentencing hearing. His preferred remedy for the alleged ineffectiveness is the
withdrawal of his guilty plea. His alternative remedy is a 60 -month sentence. We will
apply the relevant legal principles to his particular factual allegations and requests for
relief.
“In all criminal prosecutions, the accused 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)). A defendant claiming a violation of his constitutional right to the effective
assistance of counsel must satisfy two requirements:
First, the defendant must show that counsel’s performance was
deficient. This req uires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”

8
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires show ing 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; see also State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).
A court need not analyze both requirements if a petitioner is unable to satisfy one of the
requirements. Staunton v. State, 784 N.W.2d 289, 300 (Minn. 2010).
To satisfy t he first requirement, Winston must prove that his attorney did not
“exercis[e] the customary skills and diligence that a reasonably competent attorney would
perform under similar circumstances.” State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993)
(quotation omitted). As described above, the record reveals that Winston ’s attorney
promptly and thoughtfully responded to most of Winston’s e-mail messages. Accordingly,
Winston’s ineffectiveness argument focuses on the latter part of the correspondence and
his allegation that his attorney did not respond to the last two e-mail messages he sent, both
of which were dated February 15, which was nine days before the scheduled sentencing
hearing.
Winston does not cite any caselaw that would support the conclusion that the
attorney’s non-responsiveness between February 15 and February 24 is deficient per se,
and we are not aware of any such caselaw. If we consider the factual record in light of our
understanding of the “customary skills and diligence that a reasonably competent attorney
would perform under similar circumstances,” id. at 70, we could identify possible reasons
why an attorney might not continue to engage in an exchange of e-mail messages during
that nine-day period. Among them is the possibility that the attorney decided to wait until

9
the day of the sentencing hearin g and then speak with Winston in person, which might
allow for a more productive conversation. See Minn. R. Prof. Conduct 1.2(a), 1.4. Based
on our review of the e-mail correspondence, there is no apparent reason why the attorney
would expect Winston not to appear at his sentencing hearing. In fact, Winston repeatedly
expressed his desire to “turn [him]self in.” We can only speculate about the actual reason
or reasons why Winston’s attorney did not respond to his February 15 e-mail messages or
did not file a motion to withdraw based on Winston’s expressed desire to repudiate the plea
agreement. The attorney did not testify or otherwise make a statement about the matter
because the post -conviction court did not con duct an evidentiary hearing and because
neither party submitted an affidavit of the attorney.
In any event, Winston cannot satisfy the second requirement of an ineffectiveness
claim, which requires a petitioner to “show that there is a reasonable probability that, but
for counsel ’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Dereje v. State , 837
N.W.2d 714, 721 (Minn. 2013). In the context of this case, Winston must show that there
would have been a different result if his attorney had either responded to his February 15
e-mail messages before the originally scheduled date of his sentencing hearing or filed a
motion to withdraw the guilty plea before the originally scheduled sentencing hearing.
Winston cannot demonstrate that the result of his case would have been different if
his attorney had filed a motion to withdraw his guilty plea before the February 24
sentencing hearing. Winston’s attorney actually filed a motion to withdraw the guilty plea
on April 4, and the district court denied the motion. Winston has not explained why the

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district court would have granted the motion if Winston’s attorney had filed it at an earlier
date. Also, Winston does not argue that the district court err ed by denying the motion at
the April 5 sentencing hearing . Accordingly, we must assume that, if Winston’s attorney
had filed the motion at an earlier date, the district court would have denied the motion for
the same reasons that it denied the motion at a later date.
Winston also cannot demonstrate that the result of his case would have been
different if his attorney had responded to his February 15 e-mail messages before the
February 24 sentencing hearing. Winston contends that he would have appeared for his
sentencing hearing on February 24 if his attorney had responded to his February 15 e-mail
messages. But that contention is illogical and unreasonable. Winston was required to
appear for his sentencing hearing regardless of whether his attorney responded to his e -
mail messages. As described above, the district court took pains to impress that obligation
on Winston at the conclusion of the plea hearing, telling him, “if you don ’t show up for
sentencing, . . . you are facing a very long prison sentence ,” and “I’ll see you then on
February 24th at 1:30 .” Winston acknowledged in writing his receipt of a notice stating
that he “must report to court” for sentencing on February 24, 2016, at 1:30 p.m. There is
no valid reason why his attorney’s alleged non-responsiveness should have caused Winston
to believe that he was not obligated to appear for sentencing or to believe that his failure to
appear would not have adverse consequences. Winston’s failure to appear f or his
sentencing hearing was the reason why he was sentenced to 108 months of impr isonment
instead of 60 months.

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Thus, Winston cannot satisfy the second requirement of an ineffectiveness claim,
which requires him to “show that there is a reasonable probab ility that, but for counsel ’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. Accordingly, “the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1.
Before concluding, we note that Winston has filed a pro se supplemental brief with
several additional arguments. In response, the state argues that Winston did not preserve
those arguments by including them in his post-conviction petition. We agree. Winston’s
post-conviction petition alleged only one claim: that his attorney provided him with
ineffective assistance of counsel. A post-conviction petitioner may not raise issues for the
first time on appeal. Taylor v. State, 910 N.W.2d 35, 38 (Minn. 2018). Thus, Winston’s
pro se arguments have been forfeited.
In sum, the post-conviction court did not err by denying Winston’s petition without
an evidentiary hearing.
Affirmed.