State of Minnesota, Respondent,

This opinion will be unpublished and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
A19-0202

State of Minnesota,
Respondent,

vs.

Tony Ray Walker,
Appellant.

Filed February 10, 2020
Remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-21798

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Hooten, Pres iding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Tony Ray Walker appeals his conviction for third-degree sexual assault
following a guilty plea, arguing that he received ineffective assistance of counsel. Because
we conclude that Walker’s attorney actively represented a personal conflict of interest that
adversely affected his performance, we remand the case for an opport unity for Walker to
move for plea withdrawal.
FACTS
On August 27, 2018, Walker pleaded gu ilty to third-degree sexual assault under
Minn. Stat. § 609.344, subd. 1( g)(i) (2016), for forced sexua l penetration of his 16-year-
old daughter. Walker conceded the relevant facts at his plea hearing. He also stated that he
understood the charge, was satisfied with his private counsel, and knew that he would not
be able to withdraw the plea if he later changed his mind. The district court ordered Walker
to participate in a psychosexual evaluation before sentencing.
At the psychosexual evaluation, the eval uator asked Walker about the charged
offense. The evaluator’s report stated:
Mr. Walker denied ever having touched his daughter in a
sexual manner and said he never had sex with her. He indicated
he is pleading guilty because he is “in fear of [his] life,”
explaining his attorney “scare d” him by telling him he could
have to register as a sex offender and go to prison for 15 years
should he be found guilty at tria l. The defendant also said he
had taken ibuprofen and Percocet for injuries prior to going to
court and pleading guilty.

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Walker did not make a motion to withdraw his guilty plea. But, at the sentencing hearing,
his lawyer addressed Walker’s statements in the evaluator’s report. Defense counsel first
addressed the drug concern by stating, “I’d just note that I’m very thorough in covering the
issues of, you know, drug use/intoxication be fore a plea.” The lawyer continued, “I
routinely ask if my clients are under the influence of alcohol or drugs, and I also ask if they
are on any medication, if it affects their ability to know what they’re doing in court.”1
Defense counsel then addre ssed Walker’s general statem ent about the basis of his
plea by stating, “And I agree with counsel [i.e., the prosecutor]. My client made a knowing
and voluntary waiver of his rights . . . .” Defense counsel then discussed how strong the
state’s case is, emphasizing how powerful and believable the victim’s testimony was and
how there was DNA evidence against his client. Defense counsel then stated:
I’m not trying to justify the fact that he took a plea as he
did that freely and voluntarily, and it was my advice to resolve
the matter with a plea because I do not think this was a case I
could have won based on the evidence that I knew from the
facts, so to speak, and I say the facts so to speak because they
have been presented in open c ourt. But the in formation that
would have come in open cour t from the police reports that
were delivered to me made me think that this was a good
resolution.

So, I’m going to ask that the Court sentence to the 48
months as we agreed to. It’s a reasonable sentence, and my
client said I scared him into taking this plea, but I will say this.
I always have to warn clients that when the State files a Blakely
notice for an upward departure, that the sentence out of the
book doesn’t really count anymore because you, as the judicial
officer, has a right if you think the evidence supports an upward
departure after a separate Blakely hearing to upward depart and

1 Drug use relating to the validity of the plea is not at issue on this appeal.

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give him more, significantly mu ch more than the 48 months
that we negotiated.

So, if he thinks that scared him, I have to be realistic in
these cases. He had gotten advice from [his public defender].
He had gotten advice from me, and I don’t sugarcoat my cases.
I don’t come into my cases telling people I’m Johnny Cochran
and I can promise them some kind of grandiose victory because
that’s just going to cause me problems later if I lie to my client.

So, I told him the truth about it, but at the end of the day,
there was a Y chromosome test done.

He concluded by stating, “So, at the end of the day, I think it’s a proper and just sentence
under the circumstances.”
On allocution, Walker stated th e following about his attorney:
[W]e never sat down and went over any evidence or anything.
We never watched any videos or anything. I just feel that he
didn’t do his job properly with , you know, and according to
that, he wasn’t even prepared to go to trial. That’s what I truly
believe cause had he been prepar ed for trial, he’d know that
[was] what I was going after instead of taking a plea. He did
make me feel like there was no other option for me. I was under
the influence, not because I took them because I knew I was
coming to court. I took them because my knee was in very
much pain.

The judge then stated:

Mr. Walker, often when people plead in front of me and
they’re set for sentencing, in your case two and a half months
later, the reality of the case sets in and the fact that you pled
guilty. Nothing that you have to ld me today makes me think
that what happened here should not have happened. You pled
guilty in front of me. I took that plea. You admitted guilt.
Specifically, you were asked if anybody was forcing you to
plead guilty, to which you said no.

I hear the frustration in you r voice. However, I do not
believe that it is valid for cont esting where we are. You pled

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guilty to third-degree criminal sexual conduct. I will accept
that plea and find you guilty of that charge.

The court sentenced Walk er to 48 months in prison. Walker appeals.
D E C I S I O N
Walker argues that he received ineffective assistance of counsel at his sentencing
hearing. He frames this argument according to the two-prong test laid out in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, a defendant has been
deprived of the constitutional right to counsel if the defendant demonstrates (1) objectively
unreasonable performance by defense counsel and (2) resulting prejudice. See State v.
Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). But, while Strickland outlines the standard
test for an ineffective-assist ance-of-counsel claim, the stat e correctly points out that a
different test applies when the claim is based on a conflict of interest on the part of defense
counsel. In that situation, when the defendant raised no objection at trial, the defendant
“must demonstrate that defense counsel actively represented conflicting interests and this
conflict adversely affected [the] lawyer’s performance.” Cooper v. State, 565 N.W.2d 27,
32 (Minn. App. 1997) (quotation omitted), review denied (Minn. Aug. 5, 1997). “[A]
defendant who shows that a conflict of intere st actually affected the adequacy of his
representation need not demonstrate prejudice in order to obtain relief.” Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719 (1980).
Ineffective-assistance-of-counsel claims involve mixed questions of law and fact
that appellate courts review de novo. Rhodes, 657 N.W.2d at 842.

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A. Walker demonstrated that defe nse counsel actively represented
conflicting interests.

Appellant must first demonstrate that a conflict existed. State v. Miller, 666 N.W.2d
703, 717-18 (Minn. 2003). “[U]ntil a defendant shows that his counsel actively represented
conflicting interests, he has not established the constitutional predicate for his claim of
ineffective assistance.” Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quotation
omitted). Minnesota courts use the Minnesota Rules of Professional Conduct to determine
whether there is a conflict. Pearson v. State , 891 N.W.2d 590, 601 (Minn. 2017).
According to the rules, “[a] concurrent conflict of interest exists if . . . there is a significant
risk that the representation of one or more c lients will be materia lly limited by . . . a
personal interest of the lawyer.” Minn. R. Prof. Conduct 1.7.
Walker argues that his lawyer had a pers onal conflict of interest because, at
sentencing, the lawyer was interested in defending the effectiveness of his own
representation. Nothing in the record suggests that Walker asked his lawyer to seek to
withdraw his guilty plea. But, at sentencing, defense counsel, on his own, raised the issue
of the plea and defended his representation rela ting to the plea, apparently in response to
the statements that Walker had made to hi s psychosexual evaluator that he was on drugs
and that his attorney scared him into taking the plea.2 This alone shows a conflict. Much of

2 While there is no mention in the record abou t whether Walker asked his lawyer to bring
a motion to withdraw his guilty plea, the sentencing transcript shows that, as the state says
in its brief, “the parties appeared before the Court as if each understood that Appellant’s
statements to the psychosexual evaluator amounted to a possible challenge to the validity
of Appellant’s guilty plea provided on August 27, 2018.” Therefore, our analysis assumes
that defense counsel understood that his client wanted to withdraw his plea.

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what defense counsel said at the sentencing hearing was defensive of his own performance,
and his entire argument was how the plea he advised his client to take was proper and just.
Nothing defense counsel said s upported his client’s evident de sire to withdraw his plea.
Therefore, after reviewing the transcript of the sentencing hearing, we conclude Walker
sufficiently established that defense counsel actively represented a conflicting personal
interest.
B. The conflict adversely affected defense counsel’s performance.
The second part of the analysis is whet her the “conflict adversely affected [the]
lawyer’s performance.” Cooper, 565 N.W.2d at 32 (quotati on omitted). Walker does not
address this element because it is not part of the Strickland test that he followed. The state,
on the other hand, applying the correct test, argues that any conflict of interest did not
adversely affect defense counsel’s performance.
The state relies on Butala v. State , 664 N.W.2d 333 (Minn. 2003). In Butala, the
petitioner filed a pro se motion to withdraw his plea, arguing in part that his attorneys were
ineffective because the prosecutor made deal s with them “behind th e judge’s back.” 664
N.W.2d at 337. At the sentencing hearing, petitioner’s lawyers declined to speak in support
of the motion due to the conflict of interest, so the defendant made his own arguments. Id.
The district court denied plea withdrawal, and petitioner filed a petition for postconviction
relief. Id. The postconviction court denied his re quest, and he asserted two challenges on
appeal, both of which the supreme court rejected. Id. at 338. He argued that the failure of
the district court to appoint substitute co unsel to argue his pl ea-withdrawal motion
provided a “fair and just” basis for withdrawal of his plea. Id. at 340-41 (referencing Minn.

8
R. Crim. P. 15.01). The supreme court disagree d, writing that, while it would have been
better to substitute counsel, “the record refl ects the trial court gave the motion serious
consideration, taking care to review appellant’s stated reasons and factual support as well
as all of the relevant materi als before making his ruling.” Id. at 341. Butala also argued
ineffective assistance of counsel under Strickland based on his defense counsels’
negotiation of “off-the-record terms.” Id. at 341. The supreme court rejected that argument
too, reasoning “[Butala] has failed to show with ‘reasonable probability’ that he would not
have pleaded guilty but for the claimed errors of counsel.” Id. at 342.
This case is distinguishable from Butala. First, Butala argued that the district court
erred by not appointing him new counsel, not that his lawyer s acted in conflict with his
interests. Second, in Butala, defense counsel recused themselves from the hearing and did
not represent their personal interests, wher eas, here, Walker’s lawyer actively argued
against Walker’s interest in obtaining withdrawal of his guilty plea. This case is governed
by the principles governing atto rney conflict of interest, see Cuyler, 446 U.S. 335, 100
S. Ct. 1708, not by Butala.
Defense counsel’s performance at the hearing was affected by his personal interest.
Many of his statements were defensive of his own performance, supporting his interest in
showing that he appropriately advised Walker to take the plea deal . The second prong of
the conflict-of-interest analysis is met. Walker was therefore denied effective assistance of
counsel.
Walker asks that we reverse the district court’s conviction. But the remedy for the
conflict-of-interest error is the opportunity for Walker to be represented at a plea-

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withdrawal hearing by a lawyer without a conflict of interest. See State v. Kaiser , 469
N.W.2d 316, 320 (Minn. 1991) (reversing this court, reinstating the defendant’s conviction,
and remanding for another plea-withdrawal hearing because the district court erred by not
letting the defendant testify about his lawyer’s ineffectiveness at the initial plea-withdrawal
hearing). We therefore leave the conviction intact and remand for the district court to
permit Walker to bring a plea-withdrawal motion.
Remanded.