Deontray Vershon Tate, petitioner, Appellant,

This opinion will be unpublished and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
A18-0909

Deontray Vershon Tate, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 4, 2019
Reversed and remanded; motion granted
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-13-22120

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heig hts, Minnesota (for
appellant)

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

Michael O. Freeman, Hennepin Coun ty Attorney, Jean Burdorf, Ass istant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Cleary, Chie f Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Deontray Vershon Ta te petitioned for postconviction relief, asserting that
appellate counsel was ineffective for failing to raise an ineff ective-assistance-of-trial-

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counsel claim. The postconviction court, without an evidentiar y hearing, denied the
petition. Tate now argues that because the record does not conclusively show that he was
entitled to no relief, he should be granted an evidentiary hear ing. We agree and reverse
and remand.
FACTS
In June 2013, D.R. was sitting in the driver’s seat of a vehicle while A.D. and D.H.
stood outside the vehicle talking. A.D.’s two children, includ ing four-year-old J.B., were
seated in the back of the vehicle. A.D. spotted Tate approaching the vehicle, gun in hand.
She ran toward the vehicle to tell D.R. to drive away, but stop ped and took cover when a
second man appeared and began shooting. When Tate reached the vehicle, D.R. grappled
with him, attempting to take the gun away. D.R. then heard sho ts coming from another
location, and he turned back toward the children in the vehicle. Tate then shot D.R. twice
and J.B. once.
Shortly after the incident, Tate was charged with three counts of assault. The parties
engaged in plea negotiations, but those negotiations were unsuccessful, and the matter was
set for trial. On the morning of trial, the state gave oral no tice of its intent to amend the
complaint and seek an aggravated sentence based on the vulnerab ility of J.B. and the
presence of a second child in the vehicle. Although the state failed to give written notice
of its intent to seek an aggravat ed sentence, as required by Mi nn. R. Crim. P. 7.03, it
claimed that it had provided oral notice to trial counsel that it would be seeking an
aggravated sentence based on thes e factors. The court then ask ed trial counsel if he had
been verbally notified of the state’s intent to seek an aggrava ted sentence. Trial counsel

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responded that the state mentioned it was going to file amendments and seek an aggravated
sentence “orally and probably in an email or so,” but counsel did not receive formal written
notice. In discussing how to proceed, the district court instr ucted the attorneys to look at
the rules of procedure and make sure the proper procedures were being followed.
After jury selection, the court returned to the issue of amendi ng the complaint to
seek an aggravated sentence.
Court: My reading of the rules – the defense concedes that she
– that the State gave adequate notice of [the grounds for
departure].

Trial Counsel: I think we concede that we didn’t get the formal
notice, but we were certainly put on notice that that was
something that they were intending to do if it wasn’t resolved.

Court: I mean, are you contesting that somehow your client’s
prejudiced by the way notice was given or –

Trial Counsel: No, Your Honor.

A jury convicted Tate of two co unts of first-degree assault and acquitted him of
second-degree assault. The jury also specifically found the aggravating factors requested
by the state: J.B. was four years old at the time of the offens e; J.B. was in the backseat of
a vehicle with the doors closed when Tate shot him; and Tate shot D.R. in the presence of
children. The court adjudicated Tate guilty and sentenced him on both counts. For the
assault on J.B., Tate was sentenced to 206 months, an upward de parture from the
presumptive range of 74-103 months. The court based this departure on the vulnerability
of J.B., as found by the jury. T he district court declined to depart upward for the assault

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o n D . R . a n d s e n t e n c e d T a t e t o 1 0 3 m o n t h s . T h e c o u r t i m p o s e d t he sentences to run
consecutively, for a total of 309 months.
Through new counsel, Tate filed a direct appeal. On Tate’s request, that appeal was
stayed and remanded for postconviction proceedings. Tate argue d on remand that the
district court denied his right to present a complete defense i n excluding alternative-
perpetrator evidence, and that h e received ineffective assistan ce of counsel when trial
counsel did not properly introdu ce the alternative-perpetrator evidence. The
postconviction court denied Tate’s petition without an evidentiary hearing, and the appeal
was reinstated.
In the appeal, Tate argued that he was denied the right to present a complete defense
by the exclusion of relevant evidence and trial counsel was ine ffective for failing to
properly introduce that evidence; the evidence was insufficient to prove “great bodily
harm”; the district court erre d by permitting a doctor to testi fy that a gunshot wound is a
serious injury; the prosecuto r committed misconduct during clos ing argument; and the
district court abused its discret ion by imposing an upward depa rture and consecutive
sentences. In an unpublished opinion, this court affirmed. State v. Tate, A14-1339, 2016
WL 952444 (Minn. App. Mar. 14, 2016), review denied (Minn. May 31, 2016).
Throughout the direct appeal and postconviction proceeding, Tate was represented by the
same appellate counsel.
After both the Minnesota and United States Supreme Courts denie d review, Tate
filed a second postconviction petition with the assistance of n ew counsel. He argued that
appellate counsel was ineffective for failing to “raise any claims related to the prosecution

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failing to give timely notice of its intent to seek an aggravated sentence and trial counsel’s
failure to object to the lack of proper notice”; trial counsel was ineffective for failing to
object to the lack of proper notice of the state’s intent to seek an aggravated sentence; and
Tate’s due process rights were violated when he was not given proper notice of the state’s
intent to seek an aggravated sentence. Although written as separate grounds for relief, Tate
presented his claims as one argument—Tate’s appellate counsel was ineffective for failing
to make an ineffective-assistance-of-trial-counsel claim when trial counsel did not object
to the lack of proper notice by the state of its intent to seek an upward departure. Tate
argued that the lack of objection was unreasonable because the state could not show good
cause for the late notice. He also argued that he was prejudic ed because had counsel
objected, the state would have been unable to seek an upward departure. He asserted that
because his ineffective-assistance-of-trial-counsel claim would be successful, it was
ineffective for appellate counsel to neglect to raise the issue. In his accompanying affidavit,
Tate claimed that he was never told what aggravating factors were or how they could affect
the length of his sentence. He also claimed that if he had known that his potential sentence
could be upward of 400 months, he would have taken the state’s plea deal.
The postconviction court denied Tate’s motions for an evidentia ry hearing and
postconviction relief. In doing so, the postconviction court f ound that although the state
provided notice outside the requirement of Minn. R. Crim. P. 7.03, trial counsel agreed that
there was no prejudice to the defense in allowing the state to seek an aggravated sentence.
Further, the postconviction court found that because Tate has c ontinued to maintain his
innocence, it would be unreasonable to expect that Tate would h ave pleaded guilty if he

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had received written notice rather than oral notice of the state’s intent to seek an aggravated
sentence. The postconviction court concluded that because trial counsel admitted that the
defense was not prejudiced and Tate was unlikely to change his plea, he was not prejudiced
by any error. For the same reasons, the postconviction court c oncluded that Tate did not
rebut the presumption that trial counsel’s performance fell outside the range of reasonable
assistance. The postconviction court concluded that, because Tate’s ineffective-assistance-
of-trial-counsel claim failed, s o did his ineffective-assistanc e-of-appellate-counsel claim.
The postconviction court also fou nd that Tate’s ineffective-ass istance-of-trial-counsel
claim is Knaffla-barred because Tate knew or should have known of the claim at the time
of his direct appeal. The postco nviction court determined that Tate’s appellate-counsel
claim was merely his trial-counsel claim re-characterized, and it too was Knaffla-barred.
D E C I S I O N
As a preliminary matter, we address the state’s motion to strike a portion of Tate’s
reply brief. The state moves to strike the portion of Tate’s r e p l y b r i e f i n w h i c h h e
references a letter “Received Apr il 24, 2015.” This letter was not filed with the
postconviction court and is outside the record. See Minn. R. Crim. P. 28.02, subd. 8 (“The
record on appeal consists of the documents filed in the distric t court, the offered exhibits,
and the transcripts of the proceeding, if any.”). We grant the state’s motion and decline to
consider the letter in our decision. State v. Breaux , 620 N.W.2d 326, 334 (Minn. App.
2001) (“A reviewing court cannot base its decision on matters outside the record on appeal
and any matters not part of the record must be stricken.” (quotation omitted)).

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Turning to the issues raised by Tate, a petitioner is entitled to an evidentiary hearing
“unless the petition and the files and records of the proceeding conclusively show that the
petitioner is entitled to no relief.” Minn. Stat. § 590.04, su bd. 1 (2018). We review the
denial of a request for an evidentiary hearing for an abuse of discretion. Henderson v.
State, 906 N.W.2d 501, 505 (Minn. 2018). A postconviction court abuses its discretion if
it “exercised its discretion in a n arbitrary or capricious mann er, based its ruling on an
erroneous view of the law, or made clearly erroneous factual fi ndings.” Id. (quotation
omitted). When deciding whether t o grant an evidentiary hearing, a postconviction court
must take the facts alleged in t he petition as true and constru e them in the light most
favorable to the petitioner. Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018). If
the petitioner’s alleged facts, taken as true, are legally insu fficient to grant relief, then an
evidentiary hearing is not required. Henderson, 906 N.W.2d at 505. But doubts as to the
necessity of an evidentiary hearing “should be resolved in favor of the party requesting the
hearing.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001).
Tate argues that the district c ourt abused its discretion in finding that his claim was
procedurally barred. Under the Knaffla rule, “once a direct appeal has been taken, all
claims raised in the direct appeal and all claims that were kno wn or should have been
known but were not raised in the direct appeal are procedurally barred.” Colbert v. State,
870 N.W.2d 616, 626 (Minn. 2015) (emphasis omitted). Claims that were raised, or could
have been raised, in a previous postconviction petition are als o procedurally barred. Id.
When an ineffective-assistance-of-counsel claim can be determined on the basis of the trial
record, it must be brought on direct appeal or it is Knaffla-barred. Andersen v. State, 830

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N.W.2d 1, 10 (Minn. 2013). But when the claim requires the cou rt to consider evidence
outside the trial record, it is not Knaffla-barred. Id.
We agree with the postconviction court that, to the extent tha t T a t e m a k e s a n
ineffective-assistance-of-trial-counsel claim, his claim is Knaffla-barred. At the time of
the direct appeal, he knew trial counsel did not object to the state seeking an upward
departure based on aggravating f actors. He also knew that his sentence contained an
upward departure. Even if his c laim required the court to cons ider evidence outside the
record, Tate had the opportunity to develop that record when hi s appeal was stayed and
remanded for postconviction proceedings.
However, we conclude that the po stconviction court abused its discretion when it
found—without holding an evidentiary hearing—that Tate’s claim for ineffective
assistance of appellate counsel was Knaffla-barred. The record is silent as to what Tate
knew regarding his appellate-counsel-ineffectiveness claim. And it does not appear from
the record that Tate could have known that his appellate counsel was ineffective at the time
of his direct appeal. See Schneider v. State , 725 N.W.2d 516, 521 (Minn. 2007) (“This
claim is not barred by Knaffla because Schneider could not have known of ineffective
assistance of his appellate counsel at the time of his direct appeal.”).
The postconviction court cites to Doppler v. State to support its finding that Tate’s
ineffective-assistance-of-appellate-counsel claim is Knaffla-barred. 660 N.W.2d 797
(Minn. 2003). But Doppler is distinguishable. In that case, Doppler claimed appellate
counsel was ineffective for fai ling to raise trial counsel’s de cision to not call three
witnesses as a basis for ineffective assistance of counsel. Id. at 800. The postconviction

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court held an evidentiary hearing in which Doppler testified th at he often spoke with
appellate counsel about trial c ounsel’s failure to call the wit nesses, he reviewed the
postconviction memorandum submitte d by his appellate counsel, a nd, during the
evidentiary hearing, he had the opportunity to discuss trial co unsel’s failure to call the
witnesses. Id. The supreme court concluded that this testimony supported a f inding that
Doppler knew of the basis of the ineffective-assistance-of-appellate-counsel claim at the
time of his direct appeal. Id. at 802. Here, the record does not indicate what Tate discussed
with appellate counsel, whether he was aware counsel failed to bring the claim, or if he had
the opportunity to discuss the claim. Accordingly, the record does not conclusively show
that Tate’s claim is Knaffla-barred.
This, however, does not end our inquiry because the postconvic tion court also
declined to grant an evidentiary hearing on the basis that Tate’s petition lacks substantive
merit. To receive an evidentiary hearing on a postconviction claim of ineffective assistance
of counsel, a petitioner is required to allege facts that would show that counsel’s
representation fell below an objective standard of reasonablene ss and there was a
reasonable probability that, but for counsel’s errors, the resu lt of the proceeding would
have been different. State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013). Ultimately, we
review the denial of an evidenti ary hearing on postconviction r elief for an abuse of
discretion. Id. at 503. But because claims of i neffective assistance of counsel are mixed
questions of law and fact, the pos tconviction court’s legal conclusions on these questions
are reviewed de novo. Id.

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In order to establish that appellate counsel was ineffective, Tate must first show that
trial counsel was ineffective. Griffin v. State , 883 N.W.2d 282, 285 (Minn. 2016).
Consequently, we begin our analysis by examining whether Tate h as alleged facts that, if
proven, show (1) his trial counsel’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that th e outcome would have been
different but for counsel’s errors. Nicks, 831 N.W.2d at 504.
Tate argues that he has alleged sufficient facts to show that trial counsel’s
performance fell outside an objective standard of reasonableness when he failed to object
to the state’s attempt to seek an aggravated sentence. We agree.
If the state intends to seek an ag gravated sentence, it “must g ive written notice at
least 7 days before the Omnibus Hearing.” Minn. R. Crim. P. 7. 03. But if the state does
not provide timely written noti ce, the court may allow late not ice “on good cause and on
conditions that will not unfairly prejudice the defendant.” Id. It is uncontested that the
state failed to provide timely wr itten notice. Accordingly, in order to seek an aggravated
sentence the state had to show good cause and that Tate would not be prejudiced.
Tate alleges that when the stat e sought to seek an aggravated s entence, it did not
argue that it had good cause, and the district court did not fi nd good cause. Despite the
state’s lack of good cause, trial counsel failed to object. If , as Tate alleges, the state did
not argue and could not show go od cause, then it was outside th e objective standard of
reasonableness for counsel to fail to object. Trial counsel had an obligation to understand
the rules of procedure. See In re Welfare of M.P.Y. , 630 N.W.2d 411, 417 (Minn. 2001)
(“[A] defense attorney has an obligation to understand the basi c rules of discovery.”).

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Further, trial counsel was given the opportunity to review the rules of procedure and still
failed to make an objection. See State v. Ellis-Strong, 899 N.W.2d 531, 539 (Minn. App.
2017) (“An attorney’s ‘mistake of law’ because of a failure to look up a statute may amount
to an objectively unreasonable performance.”). It does not app ear from the record that
there was a strategic reason for failing to object to the state ’s failure to show good cause.
Taking Tate’s allegations as true, trial counsel’s performance fell outside the wide range
of reasonable assistance.
Tate must also sufficiently allege that, but for trial counsel ’s error, there is a
reasonable probability that the result would have been different. Nicks, 831 N.W.2d at 504.
Taking Tate’s allegations as true , the district court would hav e to sustain an objection
because the state could not meet the requirements for late notice. This would prevent the
state from seeking an aggravated sentence, and the maximum sent ence Tate could have
received would have been 206 months, with consecutive sentencin g on the two counts of
first-degree assault. Instead, Tate received a 309-month sentence with a 103 month upward
departure on the assault on J.B. Accordingly, Tate has sufficiently alleged that, but for trial
counsel’s unreasonable performance, there is a reasonable probability the result would be
different.
Having concluded that Tate has sufficiently alleged that trial counsel was
ineffective, we must now consider if appellate counsel was inef fective for failing to
challenge trial counsel’s lack of objection to the aggravated s entence. Appellate counsel
is not required to raise all possible claims on appeal, and “a claim need not be raised if
appellate counsel could have legi timately concluded that it wou ld not prevail.” Leake v.

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State, 737 N.W.2d 531, 536 (Minn. 2007) (quotations omitted). But there is nothing in the
record that suggests Tate’s ine ffective-assistance-of-trial-counsel claim would fail. As a
result, it cannot be said with any certainty that Tate’s appell ate counsel could have
legitimately concluded that the claim had no reasonable likelihood of succeeding. See id.
at 541. And because the ineffective-assistance-of-trial-counse l claim is viable, there is a
reasonable possibility that the result would be different had a ppellate counsel raised the
issue. Accordingly, the postconviction court erred in finding that the record conclusively
showed that Tate was entitled to no relief and denying an evidentiary hearing. We reverse
and remand for an evidentiary hearing.
Reversed and remanded; motion granted.