State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0031

State of Minnesota,
Respondent,

vs.

Cedric Antonio Erby,
Appellant.

Filed January 11, 2021
Affirmed
Larkin, Judge

Hennepin County District Court
File Nos. 27-CR-18-5880, 27-CR-18-12984

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Larkin,
Judge.

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NONPRECEDENTIAL OPINION
LARKIN, Judge
In this reinstated direct appeal, appellant challenges the denial of his postconviction
petition, which sought plea withdrawal based, in part, on a claim of ineffective assistance
of counsel. We affirm.
FACTS
The state charged appellant Cedric Antonio Erby with numerous controlled -
substance crimes, including second-degree sale. In a separate case, the state charged Erby
with third -degree sale, third -degree burglary, and other crimes. After Erby’s private
counsel withdrew, he was represented by a public defender (trial counsel).
At several hearings, Erby demonstrated the ability to make his thoughts known to
trial counsel and the district court. At two hearings in May 2018, Erby personall y
interjected on the record, at one point offering information regarding the terms of bail. At
a June 2018 hearing, trial counsel told the district court, “in light of some discussions we’ve
had off the record,” Erby is “demand[ing] a speedy trial” and a “Rasmussen” hearing1 to
address “the plain-view argument made by police.” See State ex rel. Rasmussen v. Tahash,
141 N.W.2d 3, 13 -14 (Minn. 1965) (establishing procedure for addressing certain

1 The parties refer to the hearing as a Rasmussen hearing, and that term appears throughout
the record. We therefore use that term in this opinion. However, we note that the
Minnesota Rules of Criminal Procedure refer to the hearing as an omnibus hearing. See
Minn. R. Crim. P. 11.02 (stating that an omnibus hearing is the proper forum for a district
court to hear “all motions” relating to evidentiary issues).

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evidentiary issues). But trial counsel then told the court, “Erby is telling me he does not
want to demand a speedy trial.”
The state extended an offer for Erby to plead guilty to second -degree sale, third -
degree sale, and third-degree burglary in exchange for concurrent sentences of 75, 57, and
30 months respectively. Erby moved to suppress evidence, and on July 13, 2018, he
appeared for a Rasmussen hearing. The state’s plea offer was to expire that day, but the
state indicated, on the record, that it would keep the offer open if Erby would waive his
right to a Rasmussen hearing and “avoid at least that litigation.” Trial counsel requested a
continuance, but he stated it was “Erby’s preference” to have the Rasmussen hearing that
day if the court would not grant a continuance. The district court denied the continuance
and held the Rasmussen hearing. Erby did not object at any point during the hearing. The
court ultimately denied Erby’s suppression motion.
The state extended a new offer, which called for a plea of guilty to second -degree
sale, third-degree sale, and third -degree burglary in exchange for concurrent senten ces of
84, 57, and 30 months respectively. The state also agreed to Erby’s release pending
sentencing. The plea agreement required Erby to appear for sentencing and prohibited him
from committing any new offenses. Erby accepted the state’s offer and pleaded guilty. He
acknowledged that if he failed to satisfy the requirements of the plea agreement, he could
receive a 117 -month sentence on the second -degree sale conviction. The district court
agreed to release Erby pending sentencing, but it ordered him to abstain from the use of
alcohol and controlled substances and to submit to random drug testing. Erby did not
object to those conditions.

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Erby failed to appear for sentencing as scheduled. Instead, he was arrested for a
new narcotics case and was brought before the district court for sentencing in custody. The
state therefore requested a 117-month sentence. Trial counsel argued that Erby had “ not
been charged with any new offenses” but acknowledged that Erby had failed to appear for
sentencing. The district court sentenced Erby to serve concurrent sentences of 117 months
in prison for second-degree sale, 57 months for third-degree sale, and 30 months for third-
degree burglary.
Erby appealed his convictions and later moved to stay the appeal to develop the
record in a postconviction proceeding. This court granted Erby’s motion and stayed the
appeal.
Erby petitioned for postconviction relief, seeking to withdraw his guilty plea. He
argued that his guilty plea was the result of ineffective as sistance of trial counsel and
therefore involuntary. Erby also argued that his plea admissions did not establish the
elements of third-degree burglary and that his plea to that offense was therefore inaccurate.
The postconviction court held an evidentiary hearing on Erby’s petition and granted relief
in part, vacating Erby’s third-degree burglary conviction because his plea admissions did
not establish the elements of that offense. The postconviction court otherwise denied relief.
This court reinstated Erby’s appeal.
DECISION
Erby contends that he is entitled to plea withdrawal or sentence modification
because his guilty pleas were involuntary and therefore invalid.

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“When a defendant initially files a direct appeal and then moves for a stay to pursue
postconviction relief, we review the postconviction court ’s decisions using the same
standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn.
2012). The validity of a guilty plea is a question of law and is reviewed de novo. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “A postconviction court’s decision regarding
a claim of ineffective assistance of counsel involves mixed questions of fact and law and
is reviewed de novo.” Carter v. State, 787 N.W.2d 675, 678 (Minn. App. 2010).
Once a defendant pleads guilty, there is no absolute right to plea withdrawal.
Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). But “the court must allow a defendant
to withdraw a guilty plea upon a timely motion and proof to the s atisfaction of the court
that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05 ,
subd. 1.
A manifest injustice exists if a guilty plea is invalid. State v. Theis , 742 N.W.2d
643, 646 (Minn. 2007). To be valid, a guilty plea must be voluntary. Id. The voluntariness
requirement protects a defendant from pleading guilty “due to improper pressure or
coercion.” Nelson v. State , 880 N.W.2d 852, 861 (Minn. 2016) (quotation omitted) .
“Whether a plea is voluntary is determined by considering all relevant circumstances.” Id.
(quotation omitted). “A defendant bears the burden o f showing his plea was invalid.”
Raleigh, 778 N.W.2d at 94.
The United States and Minnesota Constitutions guarantee criminal defendants the
right to effective assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I , § 6.
“[A] guilty plea based on ineffective assistance of counsel creates a manifest injustice as a

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matter of law. ” State v. Ellis -Strong, 899 N.W.2d 531, 541 (Minn. App. 2017). To
demonstrate ineffective assistance of counsel , a defendant must satisfy a two -prong test
based on the standard from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) . First, the defendant must show “that
counsel’s representation fell below an objective standard of reasonableness.” Id. (quotation
omitted). Second, the defendant must show that “there is a reasonable probability that, but
for counsel’ s unprofessional errors, the result of the proceed ing would have been
different.” Id. (quotation omitted). When one prong of the Strickland test is determinative,
an appellate court need not address the other prong. State v. Rhodes, 657 N.W.2d 823, 842
(Minn. 2003).
Erby challenges the voluntariness of his plea , arguing that it was the result of
ineffective assistance of counsel. He asserts that he “never told counsel that he wanted the
Rasmussen [hearing] to happen that day and counsel did not have [his] permission to say
that.” Erby argues that by proceeding with that hearing, trial counsel misrepresented his
wishes and effectively forced him to reject the state’s initial plea offer, which proved more
favorable than the offer he ultimately accepted. As further evidence that trial counsel acted
ineffectively, Erby points to the fact that trial counsel had earlier requested a speedy trial
against his wishes.
At the evidentiary hearing on Erby’ s petition for postconviction relief, Erby’s trial
counsel testified that he spoke to Erby prior to the Rasmussen hearing, but that he “didn’t
feel at the time that it was enough time to speak.” However, trial counsel testified that he
explained the state’s offer to Erby, that he explained the offer would expire if Erby went

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ahead with the Rasmussen hearing, and that he advised Erby he could face a significant
prison sentence. Trial counsel testified that Erby wanted to have the Rasmussen hearing.
Specifically, trial counsel explained that after the prosecutor stated that she would be
willing to keep the offer open only if Erby waived his Rasmussen rights, trial counsel
conferred with Erby, and Erby instructed him to conduct the Rasmussen hearing. Trial
counsel testified that he would not have conducted the hearing if Erby had instructed him
not to do so. Trial counsel testified that Erby’s ultimate goal was “ to get the drug case
dismissed.”
As to the conditions of release, trial counsel testified that he negotiated a deal with
the state wherein Erby would be released from jail pending sentencing, but if he did not
return for sentencing, Erby would face a more severe sentence. Trial counsel testified that
Erby was surprised when the district court impo sed drug -testing conditions, but trial
counsel did not object because he wanted Erby to be released and did not want to risk losing
the deal.
As to the speedy-trial demand, trial counsel testified that Erby had shifted back and
forth between wanting and not wanting a speedy trial. But trial counsel testified that “[t]he
moment he told me [he did not] want a speedy trial, we notified the [c]ourt.”
Erby testified that he never wanted to proceed with the Rasmussen hearing because
he intended to “take the deal at the end of the road.” However, Erby acknowledged that
when trial counsel notified the court that Erby wanted to proceed with the Rasmussen
hearing, Erby did not voice objection. As to the conditions of release, Erby understood the
plea negotiati on to merely require that he remain law abiding and come to court. He

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testified that he never agreed to drug-testing conditions. He also testified that he never told
trial counsel to request a speedy trial.
There is a strong presumption that counsel’s performance was reasonable. Swaney
v. State , 882 N.W.2d 207, 217 (Minn. 2016). We review a postconviction court’s
credibility determinations under a clearly -erroneous standard. State v. Ali , 855 N.W.2d
235, 245 (Minn. 2014). The postconviction court noted that the testimony from Erby and
trial counsel was conflicting regarding whether Erby instructed trial counsel to proceed
with the Rasmussen hearing. The postconviction court ultimately rejected Erby’s
testimony that he told trial counsel not to proceed with the Rasmussen hearing. The court
noted that proceeding with the Rasmussen hearing was consistent with Erby’s stated goals
of prolonging the litigation and beating the charges. Moreover, the court found that “the
testimony and transcripts on the record show[ed] that [Erby] was more than capable of
alerting [the] court or counsel when something was happening against his wishes.” For
example, the court noted that when trial counsel “mistakenly invoked [Erby’s] right to a
speedy trial, [Erby] promptly alerted [trial counsel] of the mistake so it could be corrected.”
Thus, the court found that Erby’s silence at the Rasmussen hearing was “telling.”
The postconviction court determined that when trial counsel conducted the
Rasmussen hearing, “he either did so on [Erby’s] express instruction, or at the very least
did not act contrary to any express instruction. ” The postconviction court therefore
concluded that Erby failed to show that trial counsel’s representation was unreasonable.
The record supports the postconviction court’s findings and rejection of Erby’s testimony.

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On this record, Erby has not established ineffective assistance of counsel stemming from
trial counsel’s representation at the Rasmussen hearing.
Erby also argues that trial counsel was ineffective because he did not object to the
release conditions imposed by the district court. He suggests that the addition al release
conditions “constituted a breach by [the state] of the negotiated terms of the plea
agreement.” But to succeed on a claim of ineffective assistance of counsel, Erby must
demonstrate a reasonable probability that, but for counsel ’s failure to object, the outcome
would have been different. Ecker, 524 N.W.2d at 718. Erby cannot make that showin g
here because there is no indication that he would have rejected the plea agreement if he
had known of the conditions to be imposed by the court.
Moreover, Erby’s suggestion that the additional conditions of release “constituted a
breach” of the plea agreement is unavailing. The state promised to agree to Erby’s release
pending sentencing. The state fulfilled that promise, and the district court agreed to release
Erby. The record does not suggest that Erby’s sentence was in any way based on his
violation of th e additional conditions regarding chemical use. We fail to discern why
Erby’s guilty plea was rendered invalid as a result of the district court’s imposition of
chemical-use and testing conditions that did not prevent h is promised release pending
sentencing or impact his sentence.
In conclusion, Erby fails to establish that his guilty pleas were invalid. We therefore
affirm.
Affirmed.