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This opinion will be unpublished and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
A18-0019

State of Minnesota,
Respondent,

vs.

Wayne Joseph Bosto,
Appellant.

Filed September 4, 2018
Affirmed
Cleary, Chief Judge

Carlton County District Court
File No. 09-CR-16-2533

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

Thomas Pertler, Carlton County Attorney, Jeffrey LH Boucher, Assistant County Attorney,
Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella t e Publ i c De f e nde r , J e s s i ca Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Kirk, Judge; an d Smith, Tracy M.,
Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this direct appeal from a judgment of conviction, appellant argues that the district
court: (1) abused its discretion in denying his presentence mo tion to withdraw his guilty
plea; and (2) failed to address his counsel’s potential conflict of interest. We affirm.
FACTS
In December 2016, appellant Wayne Joseph Bosto was charged with second-degree
intentional murder and felon in possession of a firearm arising out of an incident that
occurred earlier that month. Per a plea agreement, appellant p leaded guilty to second-
degree intentional murder and the state dismissed the firearm-p ossession charge. Before
sentencing, appellant moved to wit hdraw his guilty plea, arguin g t h a t h e f e l t “ e x t r e m e
emotional distress” at the time of his plea because he was faci ng a potential life sentence
in prison. The district court denied the motion, concluding: “Defendant’s guilty plea was
voluntary. . . . [He] has failed to satisfy his burden of proving that it is fair and just to allow
him to withdraw his guilty plea.”
After the district court ruled on the motion but before sentenc ing, the district court
received a letter from appellant asking it to consider additionally a “conflict of interest” in
which appellant’s attorney “pushed for [him] to take the plea.” The district court sentenced
appellant a few days after receiving his letter. The district court did not address appellant’s
letter at the sentencing hearing and sentenced him to the guidelines sentence of 426 months
in prison. This appeal follows.

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D E C I S I O N
I. The district court did not abuse its discretion in denying a ppellant’s
presentence motion to withdraw his guilty plea.

Appellant argues that the district court applied the incorrect standard in ruling on
his withdrawal motion. We disagree.
A district court has discretion to allow a defendant to withdraw a guilty plea before
sentencing and its decision will only be reversed if an appellate court “can fairly conclude
that the [district] court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn.
1989). We consider “the entire context in which [a defendant]’ s plea of guilty occurred,
as demonstrated by the record” to determine whether sufficient reasons exist to support the
motion. State v. Abdisalan , 661 N.W.2d 691, 695 (Minn. App. 2003), review denied
(Minn. Aug. 19, 2003).
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). A guilty plea “may be withdrawn only if one
of two standards is met. First a plea may be withdrawn if ‘wit hdrawal is necessary to
correct a manifest injustice.’” State v. Lopez , 794 N.W.2d 379, 382 (Minn. App. 2011)
(quoting Minn. R. Crim. P. 15.05, subd. 1). “Second, before a defendant is sentenced, a
plea can be withdrawn ‘if it is fair and just to do so.’” Id. (quoting Minn. R. Crim. P. 15.05,
subd. 2). “The fair-and-just standard is less demanding than t he manifest-injustice
standard.” Id.
“The ‘fair and just’ standard re quires district courts to give ‘due consideration’ to
two factors: (1) the reasons a defendant advances to support withdrawal and (2) prejudice

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granting the motion would cause the State given reliance on the plea.” Raleigh, 778
N.W.2d at 97 (quoting Minn. R. Crim. P. 15.05, subd. 2). “Even when there is no prejudice
to the state, a district court may deny plea withdrawal . . . if the defendant fails to advance
valid reasons why withdrawal is fair and just.” State v. Cubas , 838 N.W.2d 220, 224
(Minn. App. 2013), review denied (Minn. Dec. 31, 2013).
“Although a decision to allow plea withdrawal is discretionary . . . , a district court
must apply the standard mandated by the rule when exercising it s discretion.” Id.
Accordingly, a district court abuses its discretion if it applies the incorrect standard for plea
withdrawal. See id. at 225. But a district court does not abuse its discretion in denying a
presentence motion to withdraw a guilty plea if “[n]othing obje ctively in the record
suggests that [a defendant] failed to comprehend the nature, purpose, and consequences of
[the] plea.” Abdisalan, 661 N.W.2d at 694.
Appellant claims that the district court analyzed his motion un der the manifest-
injustice standard, but the district court’s order does not support this assertion. The district
court analyzed appellant’s claim under the voluntary-plea standard articulated in Raleigh,
which in that case was analyzed under both the manifest-injusti ce and fair-and-just
standards. 778 N.W.2d at 96-97. The district court reviewed the facts of appellant’s case
and the circumstances surrounding his plea, and cited the fair- and-just standard in
concluding that appellant failed to satisfy his burden. The di strict court also noted that
appellant did not provide any furt her explanation of how extrem e emotional distress
affected his decision to plead guilty.

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The record supports the district court’s conclusion that appellant did not have a fair-
and-just reason to withdraw his guilty plea: after completing a plea petition, appellant
acknowledged his plea at the plea hearing, did not ask any questions, and stated that he was
of sound mind and ready to proceed. Appellant then admitted to each element of the crime
and stated that he was making no claim of innocence. Nothing else in the record suggests
that appellant’s plea was not voluntary, or that he had any oth er fair-and-just reason to
withdraw his guilty plea. The district court applied the correct standard and did not abuse
its discretion in denying appellant’s motion.
II. There was no conflict of int erest between appellant and his counsel at the time
of appellant’s motion.

Appellant next argues that this court must remand his case for a renewed motion
hearing because his counsel had a conflict of interest at the t ime of the original hearing.
Due to the timing of the letter in relation to the hearing and the order, it is unclear whether
the district court considered this claim when it ruled on appel lant’s motion. Regardless,
appellant’s claim is without merit.
Appellant appears to argue that the conflict at the center of his claim is his attorney’s
advice regarding the potential consequences of his plea, which he characterizes as coercion.
However, appellant likely confla tes a conflict-of-interest clai m with an ineffective-
assistance-of-counsel claim. An appellant may bring an ineffective-assistance-of-counsel
claim if his attorney coerced him to plead guilty. State v. Ecker, 524 N.W.2d 712, 718-19
(Minn. 1994). Plea agreements must not be the product of coerc ion, but a pleading

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defendant’s “motivation to a void a more serious penalty . . . w ill not invalidate a guilty
plea.” Id. at 719.
Appellate courts apply a two-part test to claims of ineffective assistance of counsel
arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369-70
(1985). An appellant must first show that “counsel’s performan ce was deficient.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To meet thi s
standard, the appellant “must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Id. at 690, 104 S. Ct. at 2066.
Second, the appellant must show that counsel’s deficient perfor mance prejudiced
him. Id. at 687, 104 S. Ct. at 2064. We need not address both prongs of the Strickland test
if one is dispositive. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
The record shows that appellant’s counsel informed him of the p otential
consequences of not pleading gu ilty. Indeed, appellant acknowl edges receipt of this
information in his letter. Appellant does not provide any additional arguments or citations
to legal authority showing that his attorney coerced him to ple ad guilty. Because counsel
properly advised appellant of his options, counsel’s performance was not deficient.
Appellant argues in his reply brief that his counsel also had a conflict of interest
because he was the subject of an ineffective-assistance-of-counsel claim. A lawyer cannot
represent a client if the representation involves a conflict of interest. Minn. R. Prof.
Conduct 1.7(a). A concurrent conflict of interest exists if: ( 1) the representation of one
client will be directly adverse to another client; or (2) there is a significant risk that the
representation of one or more clients will be materially limite d by the lawyer’s

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responsibilities to another client, a former client or a third person, or by a personal interest
of the lawyer. Id. (a)(2).
If an appellant claims that he received ineffective assistance of counsel arising out
of a perceived conflict of interest, the appellant must show that an actual conflict of interest
adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100
S. Ct. 1708, 1718 (1980). “[T]he possibility of conflict is insufficient to impugn a criminal
conviction.” Id. at 350, 100 S. Ct. at 1719 (emphasis added). “Prejudice is presumed only
if the [appellant] demonstrates that counsel ‘actively represented conflicting interests’ and
that ‘an actual conflict of interest adversely affected his law yer’s performance.’”
Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (quoting Cuyler, 446 U.S. at 350, 100 S. Ct.
at 1719). “But until a[n appellant] shows that his counsel actively represented conflicting
interests, he has not established the constitutional predicate for his claim of ineffective
assistance.” Cuyler, 466 U.S. at 350, 100 S. Ct. at 1719.
To the extent appellant’s counsel had a conflict because he was the subject of
appellant’s ineffective-assistance-of-counsel claim, such a cla im did not exist at the time
of the original motion hearing. The hearing occurred on Septem ber 22, and appellant’s
letter arguing his claim is dated September 26 and was stamped by the district court with a
date of October 3. At the time of the hearing, appellant was n ot claiming ineffective
assistance of counsel, so appellant’s counsel did not have a conflict of interest.
For these same reasons, appella nt was not entitled to substitut e counsel at the
original motion hearing. Appellant relies on State v. Paige, 765 N.W.2d 134 (Minn. App.
2009), to support his argument that the district court erred by failing to appoint substitute

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counsel. In Paige, this court held that a district court was required to “take adequate steps
to ascertain whether an impermis sible conflict existed” where s ufficient information
brought such a conflict to the district court’s attention at th e time of the motion hearing.
765 N.W.2d at 141. But here, because the district court did no t receive appellant’s letter
until several days after the motion hearing, the district court was not aware of any potential
conflict. Paige therefore does not require us to remand for reconsideration of appellant’s
motion.
Affirmed.