A18-2039

This opinion will be unpublished and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
A18-2038
A18-2039

Brittany Ann Vacko, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent (A18-2038),

Eric Joseph Vacko, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent (A18-2039).

Filed August 12, 2019
Affirmed
Johnson, Judge

Ramsey County District Court
File Nos. 62-CR-15-2233, 62-CR-15-2230

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellants)

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In February 2016, Brittany Ann Vacko and Eric Joseph Vacko plea ded guilty to
numerous charges of wrongfully obtaining public assistance, theft by swindle, forgery, and
perjury. At sentencing, the district court ordered the m to pay approximately $150,000 in
restitution. In March 2018, the Vackos jointly petitioned for post-conviction relief on the
ground that they received ineffective assistance of counsel because their attorney did not
challenge the amounts of the restitution awards after the ir sentencing hearings by
requesting additional hearings on the issue of restitution . The post-conviction court held
an evidentiar y hearing and found that neither Brittany nor Eric asked the ir attorney to
challenge the restitution order s after the sentencing hearings . Accordingly, the post -
conviction court determined that the attorney’s representation did not fall below an
objective standard of reasonableness , and the post -conviction court denied their joint
petition. We conclude that the post -conviction court did not err in its findings of fact or
conclusions of law and, therefore, affirm.
FACTS
In March 2015, the state charged the Vackos in separate complaints with multiple
offenses, alleging that, between May 2011 and March 2015, the y wrongfully sought and
obtained more than $100,000 in public-assistance benefits for themselves and their child
by misrepresenting their income, assets, and place of residence and by forging signatures.
In June 2015, the state filed amended complaints with additional charges. The complaint
in Brittany’s case alleged six offenses: two counts of wrongfully obtaining assistance , in

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violation of Minn . Stat. § 256.98, subd. 1(1) (2010); two counts of theft by swindle, in
violation of Minn. Stat. § 609.52, subd. 2(4) (2010); one count of perjury , in violation of
Minn. Stat. § 256.984, subd. 2 (2010); and one count of forgery, in violation of Minn. Stat.
§ 609.63, subd. 1 (2010). The complaint in Eric’s case alleged eleven offenses: two counts
of wrongfully obtaining assistance , in violation of Minn. Stat. § 256.98, subd. 1(1); one
count of theft by swindle , in violation of Minn. Stat. § 609.52, subd. 2( 4); one count of
perjury, in violation of Minn. Stat. § 256.984, subd. 2; and seven counts of forgery , in
violation of Minn. Stat. § 609.63, subd. 1.
The Vackos retained a private attorney to represent both of them and waived any
conflicts of interest. In February 2016, Brittany and the state entered into a plea agreement
in which she agreed to plead guilty to all charges and the parties agreed on a sentence of
180 days in jail and an unspecified amount of restitution. Brittany pleaded guilty pursuant
to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). Three days later, Eric and
the state entered into an identical plea agreement . Eric also pleaded guilty pursuant to
Alford. At their respective plea hearings, Brittany and Eric expressed their disagreement
with the state’s evidence of the amount of overpaid benefits.
In March 2016, the district court held sentencing hearings for Brittany and Eric on
the same day. The district court imposed stayed prison sentences on each of them, ordered
each of them to serve 180 days in jail, placed them on probation, and ordered them to pay
restitution of $125,301 to the Ramsey County Community Human Services Department
and $11,965 to the United States Social Security Administration, for which they would be
jointly and severally liable. The district court also ordered Brittany to pay an additional

4
$9,419 in restitution to the Minnesota Office of Higher Education, for which she would be
solely responsible, and ordered Eric to pay an additional $4,294 in restitution to the same
office, for which he would be solely responsible. Neither party thereafter challenged the
district court’s restitution orders by requesting additional hearings on restitution within the
30-day period permitted by statute. See Minn. Stat. § 611A.045, subd. 3(b) (2010). Both
Brittany and Eric filed notices of appeal in June 2016, but both voluntarily dismissed their
appeals three months later.
In March 2018, with the assistance of a different attorney, the Vackos joint ly
petitioned for post-conviction relief. They alleged that they received ineffective assistance
of counsel because their former attorney did not challenge the restitution order s after the
sentencing hearings. Both Brittany and Eric submitted affidavits in which they stated that
they asked their former attorney to challenge the restitution orders after the sentencing
hearings because they believed that the amount of restitution was incorrect . The state
opposed the post-conviction petition and asked the pos t-conviction court to conduct an
evidentiary hearing on the question whether the performance of the Vackos’ former
attorney fell below an objective standard of reasonableness.
The post-conviction court held such a hearing in July 2018. Both Brittany and Eric
testified in support of their joint petition, and t heir former attorney testified for the state .
In October 2018, the post -conviction court filed an order in which it found that neither
Brittany nor Eric asked their former attorney to challenge the restitution orders after the
sentencing hearings . Accordingly, the post-conviction court denied the petition. Both
Brittany and Eric appeal. This court consolidated the appeals.

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D E C I S I O N
Brittany and Eric argue that the post -conviction court erred by denying their joint
petition for post-conviction 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. This right is the “right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984) (quotation omitted). The
Sixth Amendment right to counsel applies throughout the sen tencing phase of a case,
including proceedings related to restitution. See Gardner v. Florida , 430 U.S. 349, 358,
97 S. Ct. 1197, 1205 (1977); State v. Maddox, 825 N.W.2d 140, 144-46 (Minn. App. 2013).
To prevail on an ineffective -assistance-of-counsel claim, a defendant must satisfy
two requirements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 ; see also State v. Cram, 718 N.W.2d 898,
906-07 (Minn. 2006). If one of the Strickland requirements is not satisfied, a court need
not consider the other requirement. State v. Mosley, 895 N.W.2d 585, 591 (Min n. 2017).
In reviewing a post-conviction court’s denial of a claim of ineffective assistance of counsel,
this court applies a clear -error standard of review to the post-conviction court’s factual

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findings, a de novo standard of review to the post-conviction court’s legal conclusions, and
an abuse-of-discretion standard of review to the post-conviction court’s ultimate decision
to deny relief. Sanchez v. State, 890 N.W.2d 716, 719-20 (Minn. 2017).
In this case, the post -conviction court considered only the first requirement of the
two-part Strickland test. The first requirement of Strickland is concerned with whether an
attorney’s performance fell below an objective standard of reasonableness. Strickland, 466
U.S. at 687-88, 104 S. Ct. at 2064; State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014).
The objective standard is defined as “‘representation by an attorney exercising the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances. ’” Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004) (quoting
State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993)).
The post-conviction court determined that the performance of the Vackos’ former
attorney was not deficient because neither Brittany nor Eric asked the attorney to challenge
the restitution orders after the sentencing hearings . The post-conviction court found that
the Vackos were aware of their right to request a restitution hearing. The post-conviction
court noted the Vackos’ evidence that they asked their former attorney to challenge the
restitution orders. But the post-conviction court found the Vackos’ evidence to be not
credible. Accordingly, the post-conviction court found that the Vackos did not “establish
by a preponderance of the evidence that they directed or retained [their former attorney] to
request a restitution hearing and challenge restitution.” The post -conviction court
concluded, “Because the Defendants did not ask [their former attorney] to challenge
restitution, their pe titions for post -conviction relief fail under the first prong of the

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Strickland analysis: [their former attorney’s] representation did not fall below an objective
standard of reasonableness.”
On appeal, t he Vackos challenge the post-conviction court ’s factual finding that
they did not ask their former attorney to challenge the restitution orders after the sentencing
hearings. They rely on their own evidence, such as their affidavits, which state that they
spoke with the attorney after the ir sentencing hearings and asked the attorney to request a
restitution hearing and, furthermore, state that Eric later sent text messages to the attorney
inquiring about a restitution hearing . They argue that their evidence is credible and that
their former attorney’s testimony is not credible. But the post-conviction court found the
Vackos’ evidence to be not credible. It is well -established that appellate courts almost
always defer to a post-conviction court’s credibility determination. See, e.g., Miles v. State,
840 N.W.2d 195, 201 (Minn. 2013); Hooper v. State, 838 N.W.2d 775, 784 (Minn. 2013);
Opsahl v. State , 710 N.W.2d 776, 782 (Minn. 2006) . The Vackos do not contend with
particularity why the post -conviction court erred in its credibility determinations in this
particular case. We see no reason to second -guess the post-conviction court’s credibility
determinations, which are, as a practical matter, determinative in light of the issues
presented.
Thus, the post -conviction court did not cl early err by finding that the Vackos did
not ask their former attorney to request a restitution hearing or to otherwise challenge the
restitution orders after the sentencing hearings. Accordingly, the post-conviction court did
not err by denying the Vackos’ joint petition for post-conviction relief.
Affirmed.