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This opinion will be unpublished and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
A19-0670

State of Minnesota,
Respondent,

vs.

William Cleveland Alan Boykin,
Appellant.

Filed March 16, 2020
Reversed in part and remanded
Larkin, Judge

Lyon County District Court
File No. 42-CR-18-668

Keith Ellison, Attorney Gen eral, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Richard R. Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y . Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Florey,
Judge.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his convictions of attempted first- and second-degree murder
of an unborn child, first -degree burglary, first -degree assault, threats of violence , and
violation of an order for protec tion (OFP), arguing that his trial counsel inappropriately
conceded his guilt at trial. He also challenges his sentence for first-degree assault, arguing
that the district court erred by imposing a greater-than-double upward departure from the
presumptive sentence. Because the record is inadequately developed regarding appellant’s
concession-of-guilt claim, we remand for an evidentiary hearing and additional findings to
facilitate further appellate review of that claim. And because it is not clear that the district
court applied the rule of State v. Evans , 311 N.W.2d 481 (Minn. 1981), which generally
limits an upward durational departure to double the presumptive -sentence length , we
reverse appellant’s sentence for first-degree assault and remand for resentencing.
FACTS
Respondent State of Minnesota charged appellant William Cleveland Alan Boykin
with several offenses after he attacked T.D. in her mother’s home. At trial, T.D. testified
that she began dating Boykin in January 2018, that she later lived with him, and that she
moved out of their apartment after he became physically abusive. T.D. obtained an OFP
prohibiting Boykin from contacting her, and she and her two children moved in with her
mother, K.D. T.D. was pregnant at that time.
In the early mornin g hours of June 10, 2018, T.D. woke and saw Boykin standing
outside the window of her mother’s home. Boykin entered the home through the window

3
and attacked T.D. Boykin knew that T.D. was pregnant and that she had received a cornea
transplant, yet he punched and kicked her in the stomach and eyes. All the while, Boykin
yelled that he would “kill [T.D.] and [the] baby.” T.D. sustained injuries during Boykin’s
attack, including the permanent loss of one of her eyes.
K.D. testified that she heard Boykin “screaming” at T.D., telling her that he would
kill T.D. and the baby . She testified that as Boykin yelled, he continued “hitting [T.D.]
between the eye and her stomach.” K.D. explained that there “was just no stopping him,”
that she tried to pull Boykin off T.D., and that one of T.D.’s children threw toys at him.
Marshall Police Department Officers Martin Jensen and Alicia Popowski responded
to the scene . Officer Jensen testified that Boykin told him that “he had to” assault T.D.
because of “miscommunication, a lack of respect, and because of the OF P that she had
placed on him” but that “he hoped he didn’t hurt the baby or kill the baby.” Officer
Popowski testified that Boykin told her that he would cooperate with jail staff because he
“did what [he] needed to do.”
Boykin’s counsel did not give an ope ning statement at trial, and he did not cross-
examine T.D. Boykin’s counsel asked K.D. only one question during cross-examination,
which regarded the length of Boykin’s attack . Boykin’s counsel cross -examined the
responding officers, primarily focusing on what the officers had observed at K.D.’s home.
Boykin’s counsel did not call any witnesses in his defense.
During closing argument, Boykin’s counsel stated:
I’m not going to insult your intelligence and tell you noth ing
happened on June 10 , 2018 . . . . Obviously something
happened. There’s testimony and evidence during the course

4
of this trial. Hard testimony. Graphic evidence. It’s hard not
to be moved by the testimony of [T.D. ] about what happened.
[K.D.’s] testimony was compelling. I acknowledge that. . . .

. . . .

The Judge will give you Instructions on how to interpret
what you saw and what you heard. Your primary question, I
think, is you’re going to have to answer hi s intent. Not
necessarily what happened, because I think that’s fairly clear.
But, what was the intent? What was Mr. Boykin’s intent? The
State is submitting, primarily, that he intended to cause harm
to [T.D.], and that he intended to kill the unborn child. People
say and do things in the heat of passion, heat of the moment,
when they’re upset. In certain situations, people say and do
things. It doesn’t make them right. Doesn’t make them good.
But do what people say and what people do in the heat of
passion accurately portray their intent at the time, or is [it] just
that; passion, emotion; saying things and doing things people
don’t mean. Did Mr. Boykin say and —say and do things?
That’s a decision you need to make. Were his actions —his
primary actions towards [T.D.], did they —did they convey an
intent to murder an unborn child? I don’t think the State has
proven that.

. . . If you make that determination, that Mr. Boykin
took certain steps towards the completion of a crime, you still
have to answer that question, what was his intent in doing that?
I think it’s clear that his intent was not to harm—not to murder
an unborn child.

To the extent there is evidence —exculpatory evidence
on Mr. Boykin’s behalf, there’s a statement from Officer
Jensen indicating that Mr. Boykin was concerned about the
unborn child; asked if —he made the statement that he hoped
the child would be okay. It’s not dismissing other actions by
no means. Not dismissing other actions.

(Emphasis added.)
Defense counsel did not specifically address any charge other than the attempted -
murder offenses.

5
The jury found Boykin guilty of attempted first - and second-degree murder of an
unborn child, first-degree burglary, first-degree assault, threats of violence, and violatio n
of an OFP. Because the state sought a n upward durational departure , the jury was
instructed to determine whether there were aggravating factors to support a departure. The
jury returned a special verdict finding the existence of certain aggravating factors.
The district court sentenced Boykin to serve 365 days in jail for the OFP violation
and concurrent terms of imprisonment of 88 months for first -degree burglary and 220
months for first-degree attempted murder of an unborn child. The district court sentenced
Boykin to a term of imprisonment of 240 months for first -degree assault, an upward
durational departure, consecutive to Boyki n’s attempted -murder sentence. The district
court explained that it departed based on the presence of aggravating factors “as contained
in the Special Jury Verdict,” specifically, the crime was committed in a place where T.D.
had an expectation of privacy, was committed with particular cruelty, and was committed
in the presence of a child. The district court’s senten ces resulted in a total term of
imprisonment of 460 months.
Boykin appeals.
D E C I S I O N
I.

Boykin contends that he “is entitled to a new trial because his trial counsel conceded
guilt on several elements of the two attempted murder charges as well as the other four
charges in their entirety and the record does not reflect [ that he] either consented to or
acquiesced in the concessions.”

6
Generally, “[t]o succeed on an ineffective assistance of counsel claim, a defendant
must show that (1) his attorney’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that the outcome would have been
different, but for counsel’s errors.” State v. Luby , 904 N.W.2d 453, 457 ( Minn. 2017)
(quotation omitted) ( citing Strickland v. Washington , 466 U.S. 668, 687 -88, 692, 104 S.
Ct. 2052, 2064, 2067 (1984)). But when defense counsel concedes the defendant’s guilt
without his consent, “counsel’s performance is deficient and prejudice is presumed.” State
v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010) (Prtine I). “[T]he decision to admit guilt
is the defendant’s decision to make” and “if that decision is taken from the defendant, the
defendant is entitled to a new trial, regardless of whether he would have been convicted
without the admission.” Luby, 904 N.W.2d at 457 (quotations omitted).1
Appellate courts apply a two-step analysis to ineffective-assistance claims based on
an alleged unau thorized concession of guilt. Luby, 904 N.W.2d at 457. First, this court
reviews the record de novo “to determine whether defense counsel made a concession of

1 The state acknowledge s the relevant Minnesota Supreme Court precedent and that this
court is bound by that precedent. Nonetheless, the state argues that Minnesota appellate
courts should “reconsider the application of the automatic new trial rule” because
“applying the automa tic new trial rule in cases where a defendant did not object to his
attorney’s concession is inconsistent with precedent from the Supreme Court of the United
States.” The state notes that it has asked the Minnesota Supreme Court to reconsider the
application of the automatic -new-trial rule based on Florida v. Nixon , 543 U.S. 175, 125
S. Ct. 551 (2004), and McCoy v. Louisiana, 138 S. Ct. 1500 (2018). See State v. Huisman,
No. A18-1710 (Minn. App. Sept. 23, 2019), review granted (Minn. Nov. 19, 2019). This
court cannot “reconsider” binding precedent from the Minnesota Supreme Court. See
Minn. Const. art. VI, § 2 (identifying this court’s appellate jurisdiction over “all courts,
except the supreme court, and other appellate jurisdiction as prescribed by law”); State v.
Curtis, 921 N.W.2d 342, 346 ( Minn. 2018) (“The court of appeals is bound by supreme
court precedent, as it has repeatedly acknowledged.”).

7
guilt.” Id. “A concession may be ex press or implied.” Id. This court exercises “great
caution when defining an implied concession” and “will find an implied concession only
where a reasonable person viewing the totality of the circumstances would conclude that
counsel conceded the [ defendant’s] guilt.” Torres v. State, 688 N.W.2d 569, 573 (Minn.
2004) (quotation omitted).
Second, if counsel conceded guilt, we determine “whether the defendant acquiesced
in that concession.” Prtine I, 784 N.W.2d at 318. “The absence of a personal, on -the-
record consent to counsel’s strategy of admitting guilt to a lesser charge is not dispositive.”
Id. When there is no evidence of express consent, appellate courts “look at the entire record
to determine if the defendant acq uiesced in his counsel’s strategy.” Luby, 904 N.W.2d at
459 (quotation omitted). “[T]he defendant is entitled to a new trial unless he a cquiesced
in that concession.” Id. at 457 (quotation omitted).
Boykin argues that defense counsel “impliedly conced ed [his] guilt [on] the four
charges not related to attempted murder as well as the elements of first- and second-degree
attempted murder other than intent ” by “telling the jury that ‘what happened’ on June 10
was ‘fairly clear’ and that [defense counsel] was not dismissing [Boykin’s] other actions.”
The state responds that Boykin’s counsel “did not concede guilt to any offense or any
element of the charged offenses” because “the full context of the argument indicates
counsel sought to hold the state to its burden of proof on all the charged offenses.” For the
reasons that follow, Boykin has the better argument.

8
The only defense theory that Boykin’s counsel presented at trial w as that Boykin’s
conduct did not demonstrate intent to kill T.D.’s unborn chil d.2 Counsel did not make an
opening statement, much less one suggesting any flaws in the state’s case or any potentially
viable defense theory. On cross-examination, counsel did not challenge the credibility of
the state’s witnesses . Counsel did not cal l any witnesses in Boykin’s defense. During
closing argument, counsel did not argue that the state’s witnesses were not credible or that
the state’s evidence was insufficient to prove any element other than the intent element of
the attempted -murder charges, and c ounsel did not argue for an acquittal on the other
charges
Instead, counsel told the jury that he was “not going to insult [their] intelligence and
tell [them] noth ing happened.” Counsel acknowledged that there was “compelling ,”
“[h]ard test imony” and “ [g]raphic evidence.” Counsel explained that the “primary
question” the jury needed to answer was “[n]ot necessarily what happened, because . . .
that’s fairly clear. But, what was the intent?” Counsel argued that “it’s clear that
[Boykin’s] intent was not to harm—not to murder an unborn child.”
Boykin argues that by telling the jury that it only needed to decide intent, defense
counsel vocally accepted “the facts as presented by the state” and by doing so, “impliedly
conceded [ his] guilt of the four charges not related to attempted murder as well as the

2 See Minn. Stat. § 609.2661(3) (2016) (providing that whoever “causes the death of an
unborn child with intent to effect the death of the unborn child” is guilty of murder of an
unborn child in the first degree); Minn. Stat. § 609.2662(1) (2016) (providing that whoever
“causes the death of an unborn child with intent to effect the death of that unbo rn child or
another, but without premeditation” is guilty of murder of an unborn child in the second
degree).

9
elements of first- and second-degree attempted murder other than intent.” Given counsel’s
failure to comment on the state’s case during open ing statements, his failure to challenge
the state’s evidence during cross -examination, and his singular focus on Boykin’s intent
during closing argument, a reasonable person viewing the totality of the circumstances
would conclude that counsel impliedly conceded Boykin’s guilt.
Having determined that c ounsel conceded guilt, we must next determine whether
Boykin consented to the concession, either expressly or through acquiescence . See
Prtine I, 784 N.W.2d at 318 . The record lacks any indication that Boykin expressly
consented to his trial counsel’s concession. “When, as here, there is no evidence of express
consent, [appellate courts] look at the entire record to determine if the defendant acquiesced
in his counsel’s strategy.” Luby, 904 N.W.2d at 459 (quotation omitted). “Acquiescence
may be imp lied in certain circumstances, such as (1) when defense counsel uses the
concession strategy throughout trial without objection from the defendant, or (2) when the
concession was an understandable strategy and the defendant was present, understood a
concession was being made, but failed to object.” Id. (quotation omitted).
The Minnesota Supreme Court has found acquiescence based on a trial-long strategy
where “ [f]rom his opening statement through his closing argument, defense counsel
consistently took the position that [the] defendant had caused the victim’s death.” State v.
Provost, 490 N.W.2d 93, 97 (Minn. 1992). The state asserts that Boykin acquiesced to the
concession here because it was “part of a trial-long strategy that sought to direct all of t he
jury’s attention on the intent-to-kill element, without specially challenging any of the other
allegations.” The record does not reveal a trial-long concession strategy similar to the one

10
in Provost. Again, Boykin’s counsel did not give an opening sta tement. And he did not
consistently take the position that Boykin lacked the intent necessary to commit attempted
murder. Indeed, Boykin’s trial counsel did not refer to the intent element until closing
argument. The circumstances here are more like those in Luby, where defense counsel did
not concede an element of the charged offense until closing argument. 904 N.W.2d at 459.
In Luby, the supreme court reasoned that it was difficult to conclude that the defendant had
“somehow acquiesced in a strategy that manifested itself only at the end of trial.” Id.
Because Boykin’s counsel did not use the concession strategy throughout trial, we
consider whether “the concession was an understandable strategy and the defendant was
present, understood a concession was being made, but failed to object.” See id. (quotation
omitted). Whether a concession of guilt was an understandable trial strategy is a legal
determination that an ap pellate court reviews de novo. State v. Prtine, 799 N.W.2d 594,
599 (Minn. 2011) (Prtine II). In doing so, the appellate court considers “whether it would
be objectively reasonable to do so, given the facts and circumstances of the particular case.”
Id.
A concession of guilt is an understandable strategy when
the defense attorney desires to admit that [the] defendant is
guilty of one of two charges in the hope of increasing his
credibility with the jury and increasing the chance that the jury
will acquit [the] defendant on the other charge. [It is also an
understandable strategy when] defense counsel admits that
[the] defendant is guilty of some lesser-included offense in the
hope of persuading the jury to acquit [the] defendant of the
greater charged offense.

11
Id. (quoting State v. Wiplinger, 343 N.W.2d 858, 861 ( Minn. 1984)). The strength of the
state’s case is relevant when determining whether a concession of guilt was an
understandable trial strategy. Id.
Given the strength of the state’s case , it was objectively reasonable to focus on the
intent element of first- and second-degree attempted murder, which were the most serious
charges, and to impliedly concede guilt on the lesser offenses in the hope of obtaining an
acquittal on the most serious charges. See State v. Moore, 458 N.W.2d 90, 96 (Minn. 1990)
(recognizing that conceding guilt on a lesser-included offense to persuade the jury to acquit
on the most -severe offense is a reasonable strategy ). Thus, the record establishes that
defense counsel’s concession was an understandable trial strategy.
The record also establishes that Boykin was present during the implied concession
and that he did not object. The remaining consideration is whether Boykin understood the
concession was being made . As to that factor, Prtine II is instructive. In Prtine II, trial
counsel argued in closing, “The lesser charges are . . . murder in the second degree. There
are two different counts of murder in the second degree. And here [the medical examiner]
has furnished one of the key elements. He said that there was definitely an intent to cause
the death . . . .” 799 N.W.2d at 597. Counsel further argued, “We understand that in order
to raise the defense of self -defense, you have to, first of all, admit that you intentionally
caused the death of someone. That’s never been missing.” Id. (emphasis added).
The Minnesota Supreme Court concluded that the Prtine defendant understood that
a concession was being made, reasoning:

12
The record establishes that trial counsel talked to Prtine about
how his defense of self-defense applied to intentional killings.
Thus the concession related to an issue with which Prtine was
familiar. In addition, Prtine provided testimony relevant to his
intent when he essentially testified that he had to kill [the
victim] because he thought [the victim] would have killed him
if he got the knife back.

Id. at 601. The supreme court explained that “[those] facts suppo rt the reasonable
conclusion [that] Prtine heard and understood his attorney’s concession in closing
argument that the killing was intentional.” Id.
The facts here are unlike those in Prtine II. The record does not indicate that defense
counsel talked to Boykin about the significance of the intent element such that the
concession related to an issue with which Boykin was familiar. And Boykin did not
provide testimony regarding his intent or otherwise indicate that he understood the
significance of the intent element . The record is entirely silent regarding Boykin’s
understanding of the intent element and the concession strategy.
“When the record is unclear as to whether the defendant acquiesced in his counsel’s
concession, [the supreme court has] found a remand to the district court for fact-finding is
the appropriate resolution.” Prtine I, 784 N.W.2d at 318 ; see also Luby , 904 N.W.2d at
459 ( same). Boykin and the state agree that a remand for additional fact -finding is
necessary if the existing record does not clearly show whether Boykin acquiesced.3

3 The state argues that if a new trial is ultimately ordered, that remedy sh ould not apply to
the attempted-murder convictions because defense c ounsel allegedly conceded some, and
not all, of the elements of those offenses. The state argues that the law “treats [such]
complete and partial concessions differen tly” and that the automatic -new-trial rule does
not apply to partial concessions. The state cites two dissenting Minnesota Supreme Court
opinions as support. See Luby , 904 N.W.2d at 460 (Chutich, J., dissenting)

13
Because it is unclear whether Boykin understood that a concession of guilt was being made
at trial, a remand to district court for fact-finding on this issue is appropriate. 4 See Dukes,
621 N.W.2d at 255 (“The claim of whether [the defendant] consented to his counsel’s
admission of [his] guilt to aggravated robbery is exactly the type of claim that needs
additional factfinding before it can be resolved.”); see also Prtine I , 784 N.W.2d at 318
(“Because the record is unclear, a remand to the district court is necessary to determine
whether Prtine acquiesced.”).
II.
Boykin contends that his 240-month sentence for first -degree assault constitutes a
greater-than-double upward departure and that the sentence must be vacated because it is
not supported by severe aggravating circumstances.

(“Consequently, we have applied the per se rule when defense counsel has conceded every
element of the charged offense and left nothing in dispute.”); Prtine I, 784 N.W.2d at 320
(Gildea, J., dissenting) (arguing that additional proceedings were unwarranted because the
attorney conceded intent to kill while pursuing a self -defense theory and did not concede
his client’s “guilt”). The state notes that “[t]he state’s petition for review in Huisman asks
the [Minnesota] Supreme Court to consider distinguishing between partial and complete
concessions.” On this record, we cannot determine whether Boykin is entitled to any relief.
It is therefore premature to decide the appropriate scope of relief.
4 We note that “claims that require a court to explore conversations between attorney and
client are best handled on a petition for postconviction relief.” Dukes v. State, 621 N.W.2d
246, 255 (Minn. 2001); see State v. Christian, 657 N.W.2d 186, 194 ( Minn. 2003) (“The
preferred procedure is to raise the issue of ineffective assistance in a petition for
postconviction relief in the district court.”); see also Minn. R. Crim. P. 28.02, subd. 4(4)
(providing that if “after filing a notice of appeal, a defendant determines that a petition for
postconviction relief is appropriate, the defendant may file a motion to stay the appeal for
postconviction proceedings”). Consistent with Minnesota Supre me Court precedent, we
will remand this case for an evidentiary hearing to develop the necessary factual record.
But in the future, we encourage defense counsel to develop the necessary factual record in
a postconviction proceeding.

14
“Although the Sentencing Guidelines are advis ory to the district court, the court
shall follow the procedures of the guidelines when it pronounces sentence in a proceeding
to which the guidelines apply . . . .” Minn. Stat. § 244.09, subd. 5 (2016). “Departures are
warranted only when substantial an d compelling circumstances are present,” which are
circumstances “demonstrating that the defendant’s conduct in the offense of conviction
was significantly more or less serious than that typically involved in the commission of the
crime in question.” State v. Jones, 745 N.W.2d 845, 848 (Minn. 2008) (quotation omitted);
see also Minn. Sent. Guidelines 2.D.1 (Supp. 2017) (stating that the district court may only
depart from a presumptive sentence if “there exist identifiable, substantial, and compelling
circumstances to support a departure”).
“Despite having general discretion to make departure decisions, the district court
has less discretion to decide the length of the upward departure than it does to decide
whether to depart . . . .” Dillon v. State, 781 N.W.2d 588, 596 (Minn. App. 2010), review
denied (Minn. July 20, 2010). “W hen a sentencing court departs from the presumptive
sentence, it must still strive to determine a sentence that is proportional to the severity of
the offense.” State v. Spain , 590 N.W.2d 85, 89 (Minn. 1999). Generally, “in a case in
which an upward departure in sentence length is justified, the upper limit will be double
the presumptive sentence length.” Evans, 311 N.W.2d at 483 . A greater than double
upward departure is warranted only in the rare case where severe aggravating
circumstances exist. Dillon, 781 N.W.2d at 596.
After submission of this case, the Minnesota Supreme Court decided State v.
Barthman, in which it declined to “overturn or modify the Evans rule.” ___ N.W.2d ___,

15
___ , 2020 WL 563360, at *8 (Minn. Feb. 5, 2020) . The supreme court reiterated that
under Evans, “generally in a case in which an upward departure in sentence length is
justified, the upper limit will be double the presumptive sentence length, ” that is, “ twice
the upper end of the presumptive sentencing range. ” Id. (quoting Evans, 311 N.W.2d at
483). The supreme court explained:
Double the presumptive sentence length is generally the
upper limit for an upward durational de parture. Out of the
small number of cases in which a sentencing departure is
appropriate, ther e are rare cases in which the facts ar e so
unusually compelling that a greater -than-double dur ational
departure is justified. Similarly, we have stated that cas es
when a greater -than-double departure is justified are
extraordinary cases. A district court may impose a greater -
than-double duration al departure only if there are severe
aggravating factors.

Id. at *10 (citations and quotations omitted).
In Barthman, the jury found the defendant guilty of six counts of criminal sexual
conduct and answered “yes” to the following questions on a special verdict form:
(1) “[d]id [C.B.] have a chromosomal defect;” (2) “[d]id [C.B.]
have a cognitive developmental d elay;” (3) “[d]id the
Defendant know about these vulnerabilities;” (4) “[w]as [C.B.]
subjected to multi ple forms of sexual penetration ;” and
(5) “[w]as [C.B.] subjected to mu ltiple forms of sexual
contact.”

Id. at *3 . The district court imposed sentences on two of the criminal-sexual-conduct
offenses. Id. Based on the jury’s factual findings, the district court concluded that the
victim, C.B., was particularly vulnerable and had been treated with particular cruelty , and
it imposed a greater-than-double upward departure on each of the offenses. Id. at *3-4.

16
In affirming the greater -than-double upward departure for one of the offenses, the
supreme court reasoned:
The facts of this case demonstrate that C.B.’s vulnerability was
substantial. As we prev iously explained, because of her
chromosomal defect and cognitive delays, C.B. was several
grade levels below her peers an d had difficulty
communicating. She also scored in the lowest percentile for
independent living skills, such as managing her time, caring for
herself without assistance, and managing a routine. As the
district court found, C.B.’s “significant cognitive delays
greatly compounded her already limited ability, as a young girl,
to escape or seek help.” And Barthman treated C.B. with
particular cruelty when he committed this offense. We have
affirmed greater -than-double durational departures when
multiple aggravating factors are present, including a
particularly vulnerable victim and treating the victim with
particular cruelty. Based on th e facts of this case and these
prior cases, we hold that the district court did not abuse its
discretion when it imposed a greater -than-double durational
departure on Barthman’s sentence for count one.

Id. at *11 (citations omitted).
In this case, Boykin asserts, and the state agrees , that the presumpti ve term of
imprisonment for his first-degree assault offense was 86 months and that the district court’s
sentence of 240 months was a greater-than-double upward departure. Boykin also asserts,
and the state agrees, that the district court did not say that severe aggravating factors existed
to justify the greater-than-double upward departure. As Boykin notes, the district court did
not even acknowledge that the 240 -month sentence constituted a greate r-than-double
upward departure. Boykin states that the district court and the parties appear to have
disregarded the Evans rule, possibly because they “overlooked the fact that pursuant to the

17
sentencing guidelines, [Boykin’s] sentence for first -degree assau lt . . . needed to be
calculated based on a zero criminal history score.”
To be clear, Boykin does not assert that the record does not support an upward
durational departure. He acknowledges that “the district court justifiably concluded that
the circu mstances provi ded adequate bases to depart fro m the presumptive guidelines
sentence.” He challenges only the length of the departure, arguing that it may not exceed
twice the presumptive sentence length, that is, 172 months , because this case does not
involve severe aggravating factors . Boykin argues that this court should reverse his
sentence for first-degree assault, remand for proper application of the Evans rule, and direct
that his sentence be no longer than 172 months.
The state counters that this court should affirm the 240-month sentence based on the
severe and unusually compelling aggravating circumstances that were described at trial .
Alternatively, the state asks this court to remand for resentencing on the first-degree assault
conviction, “so that the district court can make findings on the severity of those factors in
the first instance, and then impose the appropriate sentence.”
Our review of the sentencing record does not indicate that the district court, or the
parties, were guided by the Evans rule at sentencing. Indeed, neither the district court nor
the parties mentioned that rule or discussed its application to this case. Because we must
remand for further proceedings to determine the validity of Boykin’s convictions, we agree
with the state that the district court should apply the Evans rule in the first instance on
remand. We therefore reverse the sentence for Boykin’s first-degree assault and remand
for resentencing consistent with the Evans rule.

18
On remand, the parties and the district court should be mindful of the method that
the supreme court used when reviewing the greater -than-double upward departures in
Barthman. Compare id. (affirming greater -than-double upward departure based on
evidence in the trial record and the existe nce of two aggravating factors), with State v.
Stanke, 764 N.W.2d 824, 828 (Minn. 2009) (“After Blakely, we no longer independently
review the record for evidence to justify a departure because the issue of whether additional
facts exist to support the departure is a question of fact for a Blakely jury, unless the
defendant has waived his or her right to a Blakely jury.”), and State v. Ayala -Leyva, 848
N.W.2d 546, 549 (Minn. App. 2014) (“A greater -than-double durational sentenci ng
departure must be supported by severe aggravating factors, and factual findings to support
those factors must be found by a sentencing jury absent waiver of Blakely proceedings by
a defendant.”), review granted (Minn. Aug. 5, 2014 ) and order granting re view vacated
(Minn. Aug. 11, 2015).
In conclusion, because the record lacks factual findings regarding whether Boykin
understood that his attorney was making a concession of guilt at trial, we cannot determine
whether Boykin is entitled to a new trial base d on that concession. We therefore remand
for an evidentiary hearing and findings on that issue to facilitate further appellate review .
And because the record does not indicate that the district court applied the Evans rule when
sentencing Boykin’s first -degree assault, we reverse his sentence for that offense and
remand for resentencing pursuant to the Evans rule, as recently applied in Barthman.
Reversed in part and remanded.