Esteban Trevino, 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This opinion will be unpublished and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
A17-1911

Esteban Trevino, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 9, 2018
Reversed and remanded
Reilly, Judge

Kandiyohi County District Court
File No. 34-CR-16-982

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Considered and decided by Schellhas, Pr esiding Judge; Reilly, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the summary denial of his petition for pos tconviction relief,
arguing he alleged sufficient facts to receive an evidentiary heari ng on his ineffective-

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assistance-of-counsel claim. Because appella nt alleged facts that, if proved by a fair
preponderance of the eviden ce, would satisfy the two-pr ong test articulated in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), we reverse and remand.
FACTS
The state charged appellant Esteban Trevin o with two counts of first-degree driving
while intoxicated and one count of driving after cancellation after an officer stopped his
vehicle for speeding and he prov ided a breath sample with an alcohol concentration of
0.15.
Two days later, on November 8, 2016, the district court appointed a public defender
to appellant’s case. A probation officer appeared at appellant’s first hearing and explained
to the district court that he was assigned to oversee appellant’s supervised release from a
2012 test-refusal conviction. The probatio n officer explained that appellant had been
released from prison the previous fall and he “went right to a commitment at Anoka
Regional Treatment Center,” before the pr obation officer was as signed to his case in
August 2016.
Six weeks later, appellant petitioned to enter a plea of guilty with assistance from
his appointed counsel. On th e plea petition, appellant ackno wledged that he had been a
patient in a mental hospital “for an evaluation,” but claimed he had “not talked with or been
treated by a psychiatrist or ot her person for a nervous or me ntal condition,” he had “not
been ill recently,” and he had “not recently been taking pills or other medicines.”
Appellant’s attorney and the district cour t independently questioned appellant about
whether he understood the plea petition and the rights he was waiving; appellant

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acknowledged he understood both. Neither th e district court nor appellant’s attorney
questioned appellant on the record about whether he was under the influence of any drugs,
had a mental disability, or had been in psychiatric treatment. After a plea colloquy, the
district court accepted appellant’s guilty plea to one count of first-degree driving while
intoxicated, and adjudicated his guilt.
The district court ordered a limited presentence investigation. Appellant’s probation
officer filed a report, but did not include any of appellant’s background or medical history.
Appellant was sentenced in accordance with the plea agreement to 65 months’
imprisonment with a five-year conditional release term.
Appellant subsequently petitioned for postconviction relief, arguing that his plea
was not valid because he was not competent at the time of the plea hearing, and that he was
deprived of effective assistance of counsel because his attorney did not investigate his
competency or request a competency evaluation prior to his plea. Appellant alleged the
following facts in his petition: he was civilly committed in 2011, 2014, and from August
2015 to July 2016; one month before the plea was entered, the probation officer informed
appellant’s attorney that appella nt “is very mentally ill, and has a long record due to his
mental illness”; the probation officer also made appellant’s mental health records available
to appellant’s attorney, and told the attorn ey that appellant was previously civilly
committed, had been placed in a group home, and would benefi t from adult foster care.
Finally, appellant’s petition alle ged that he exhibited sympto ms consistent with mental
illness in his communications with his attorney.

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Appellant requested an evid entiary hearing and, along with his petition, filed
records from the 2015 civil co mmitment; a February 2017 deci sion by the department of
corrections staying a hearing because appellant exhibited si gns of mental illness; and a
June 2017 administrative revo cation of conditional release wherein appellant was unable
to sign a waiver of his rights to a full revocation hearing because of “extreme mental health
concerns.” The record from the 2015 civil commitment indi cates that appellant suffered
from a “major mental illness” manifesting in “severe and persistent delusions” and that he
“lack[ed] the capacity to make decisions re garding the administration of neuroleptic
medications as demonstrated by his refusal to acknowledge his mental illness.” The record
from the February 2017 revocation hearing indicates that appellant continued to suffer from
delusions, and therefore a 90-day stay of the proceedings was necessary to assess
appellant’s mental competency. In June 2017, the department of corrections
administratively revoked appellant’s cond itional release without a hearing because
appellant suffered from extreme mental health issues and was unstable. The department of
corrections determined that was the best course of action for appellant to get services.
The postconviction court deni ed the petition with out an evidentiary hearing. The
postconviction court concluded that appella nt’s plea was accurate, voluntary, and
intelligent, and that the attorn ey’s representation did not fall below an objective standard
of reasonableness.
This appeal followed.

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D E C I S I O N
Appellant argues the postconviction court committed reversible error when it failed
to hold an evidentiary hearing on his ineff ective-assistance-of-counsel claim after he
alleged that his attorney knew that he had a history of civil commitments and mental illness
and failed to further investigate his competen cy, inform the court of his mental-health
history, or request a competency evaluation.
A postconviction court must hold an evidentiary hearing on a petition “[u]nless the
petition and the files and records of the proceeding conclusively show that the petitioner is
entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2016).
To determine whether petitioner is entitled to an evidentiary
hearing, the postconviction court must determine whether the
competent evidence presented by petitioner considered in the
light most favorable to the petition, together with the
arguments presented by the parties, conclusively show that the
petitioner is not entitled to relief. If so, the court may deny the
request for an evidentiary hearing. If the court concludes that
material facts are in dispute an d that the allegations in the
petition, if true, would entitle th e petitioner to relief, then the
court must schedule an evidentiary hearing.

Martin v. State, 825 N.W.2d 734, 740 (Minn. 2013) (citations omitted). “Any doubts about
whether to conduct an evidentiary hearing shou ld be resolved in favor of the defendant
seeking relief.” State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013).
To receive an evidentiary hearing on an ineffective-assistance-of-counsel claim, the
petitioner “is required to allege facts that, if proven by a fair preponderance of the evidence,
would satisfy the two-prong test announced in Strickland v. Washington.” Bobo v. State,
820 N.W.2d 511, 516 (Minn. 2012). The Strickland test requires the petitioner to show

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(1) that “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 ha ve been different.’” Nissalke v. State , 861 N.W.2d 88, 94
(Minn. 2015) (quoting Strickland, 466 U.S. at 688, 694, 10 4 S. Ct. at 2064, 2068).
“Because claims of ineffective assistance of counsel are mixed questions of law and fact,
we review the postconviction court’s legal conclusions on such questions de novo.” Nicks,
831 N.W.2d at 503. We “consider the court’s factual findings that are supported in the
record, conduct a de novo review of the legal implications of those facts on the ineffective
assistance claim, and [will] either affirm the [district] court’s decision or conclude that the
[district] court abused its discretion because postconviction relief is warranted.” Id. at 504.
Appellant argues that his attorney’s failure, in the face of evidence of appellant’s
mental illness, to inform the district court of appellant’s mental-health history, investigate
appellant’s competency, or move for a comp etency evaluation under Minn. R. Crim. P.
20.01 fell below an objective standard of reasonableness. He argues he was prejudiced by
his attorney’s failure to ensure his competency because he may have pleaded guilty while
incompetent, thus depriving him of his right to a fair trial once he regained competency.
“The objective standard of reasonablene ss is defined as representation by an
attorney exercising the customary skills and diligence that a reasonably competent attorney
would perform under simi lar circumstances.” State v. Vang , 847 N.W.2d 248, 266-67
(Minn. 2014) (quotations omitted). Trial coun sel’s performance is presumed reasonable.
Schneider v. State, 725 N.W.2d 516, 521 (Minn. 2007).

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“A defendant has a due process right not to be tried or convicted of a criminal charge
if he or she is legally incompetent.” Bonga v. State, 797 N.W.2d 712, 718 (Minn. 2011).
“A defendant is incompetent and must not plead, be tried, or be sentenced if the defendant
lacks ability to: (a) rationally c onsult with counsel; or (b) understand the proceedings or
participate in the defense due to mental illne ss or deficiency.” Minn. R. Crim. P. 20.01,
subd. 2. “If the prosecutor, defense counsel, or the court, at any time, doubts the
defendant’s competency, th e prosecutor or defense co unsel must make a motion
challenging competency, or the court on its initiative must raise the issue.” Id., subd. 3.
“Evidence of the defendant’s irrational behavior, demeanor at trial, and any prior medical
opinion on competence to stand trial are relevant in determining whether there is reason to
doubt the defendant’ s competence.” State v. Camacho , 561 N.W.2d 160, 172 (Minn.
1997). “The failure of trial counsel to re quest a competency hearing where there was
evidence raising a substantial doubt about a petitioner’s competence to stand trial may
constitute ineffective assistance of counsel.” Speedy v. Wyrick, 702 F.2d 723, 726 (8th Cir.
1983).
In denying relief, the postconviction court stated,
After reviewing the Petitioner’s representation at the
Plea Hearing and Sentencing, th e Court finds that Petitioner
received effective assistance of counsel. The Petitioner’s
counsel questioned the Petitioner about his guilty plea and
informed the Petitioner of his right s. The record is devoid of
any conduct that would amount to ineffective assistance of
counsel.

Appellant’s postconviction petition alleges that his attorney was aware, prior to the
plea hearing, that appellant had been recently civilly committed and that he had a history

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of mental illness. He supported his assertions with evidence of his prior civil commitments,
as well as evidence of delusions and incompetence shortly before and after his sentencing
hearing in 2017. If appellant’s attorney was aware of the prio r civil commitment from
communications with the probation officer, as alleged, then counsel’s inclusion of
contradictory information in the plea petition and failure to further investigate or question
appellant’s mental health and history may have fallen below the objective standard of
reasonableness. To be entitled to an evidentiary hearing, appellant is not required to show
that his counsel’s assistance actually fell below an objective standard of reasonableness—
he is entitled to an evidentiary hearing if the allegations and the record, viewed in the light
most favorable to him, fail to conclusively show that appellant is not entitled to relief. See
Nicks, 831 N.W.2d at 508. Whethe r the allegations in the petition are actually true is the
subject of the evidentiary hearing. Id. Here, appellant has alleged sufficient facts to entitle
him to an evidentiary heari ng under the first prong of Strickland because, viewed in the
light most favorable to him, the record does not conclusively demonstrate that appellant’s
attorney exercised the customary diligence that a reasonably competent attorney would if
presented with similar circumstances.
We also conclude that appellant alleged sufficient facts under the second prong of
the Strickland test. In order to prevail under the second prong of Strickland, appellant must
demonstrate a reasonable probability that the outcome of the proceedings would have been
different but for the attorney’s error. Nissalke, 861 N.W.2d at 94. In light of the evidence
that appellant’s competency was called into question al most immediately after the
sentencing hearing in this case, coupled with the evidence that appellant had been civilly

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committed only months before th e plea hearing, we conclu de that appellant alleged
sufficient facts to demonstrate that he may have been incompetent at the time of his guilty
plea.
Because appellant alleged sufficient facts to support a claim of ineffective assistance
of counsel, the postconviction court erred in denying the petition w ithout an ev identiary
hearing.
Reversed and remanded.