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STATE OF MINNESOTA

IN SUPREME COURT

A19-0686

Ramsey County Anderson, J.
Took no part, Gildea, C.J.
Ryan David Petersen,

Appellant,

vs. Filed: December 26, 2019
Office of Appellate Courts
State of Minnesota,

Respondent.
________________________

Ryan David Petersen, Oak Park Heights, Minnesota, pro se appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, Saint
Paul, Minnesota, for respondent.
________________________

S Y L L A B U S

The district court did not ab use its discretion by denying appellant’s claim of
ineffective assistance of appellate counsel on the merits.
Affirmed.
Considered and decided by the court without oral argument.

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O P I N I O N
ANDERSON, Justice.
Appellant Ryan David Petersen was convicted of the first-degree premeditated
murder of Chase Passauer. On direct appeal, we affirmed his conviction. State v. Petersen,
910 N.W.2d 1 (Minn. 2018). Petersen then sought postconviction relief, asserting a claim
of ineffective assistance of appellate counsel. The district court denied his petition without
a hearing. Because we conclude that Petersen’s claim fails on the merits , we affirm the
district court.
FACTS

The murder of Chase Passauer arose from a dispute between Petersen and his
criminal defense attorney.1 On the day of the murder, Petersen exchanged a series of text
messages with his attorney concerning a parking ticket. When the attorney informed
Petersen that he was unable to talk by phone because he was preparing for court , and he
would not handle Petersen’s parking ticket, Petersen fired the attorney and demanded a
refund of the $7,000 retainer he had previously paid. Petersen told his girlfriend that he
intended to get his money back from , and shoot, the attorney. Petersen then drove five
miles to the attorney’s office and, with a hidden .40-caliber semiautomatic handgun in his
waistband, entered the building, ascended the stairs, and entered the law office through
unlocked doors.

1 The facts of this opinion are taken from our opinion in Petersen’s direct appeal. See
Petersen, 910 N.W.2d at 4–5. In this postconviction appeal, the facts are undisputed.

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Petersen confronted Passauer, a law clerk who was seated at the recep tion desk in
the law office, demanding to know whe re the attorney was located. Angry that Passauer
did not know where the attorney was , Petersen shot Passauer in th e chest five times. As
Petersen left the office, he shot Passauer three more times through a glass window
separating the reception area from the entryway. Petersen fled, leaving Passauer to die
from the eight gunshot wounds to his chest.
The State charged Petersen by complaint with second -degree intentional m urder.
Just before his second court appearance,2 Petersen informed the State that he intended to
enter a straight plea to the charge of second-degree intentional murder. The State filed an
amended complaint charging Petersen with first -degree premeditated murder, second -
degree intentional murder, and possession of a firearm by an i neligible person. The State
also informed the district court that a grand jury proceeding would be convened to consider
the first-degree murder charge.
Petersen still attempted to plead guilty to the second-degree murder charge, but the
district court did not accept his plea. Five days later, a grand jury indicted Petersen on all
three charges . The district court denied Petersen’s motion to dismiss the grand jury
indictment.
After a bench trial, the district court found Petersen guilty of all three charges. The
district court sentenced Petersen to life in prison without the possibility of release for first-

2 The parties disagree as to whether this was a second-appearance hearing, see Minn.
R. Crim. P. 8, or an omnibus hearing, see Minn. R. Crim. P. 11.

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degree premeditated murder and a concurrent 60 -month sentence for possession of a
firearm by an ineligible person ; it did not sentence Petersen on the second -degree
intentional murder count.
Petersen filed a direct appeal. See Petersen, 910 N.W.2d 1. We determined that
(1) the district court did not abuse its discretion b y declining to accept Petersen’s guilty
plea to second-degree intentional murder, and (2) sufficient evidence supported the district
court’s finding of premeditation. Id. at 6, 8. Accordingly, we affirmed Petersen’s
convictions. Id. at 9.
Petersen filed a petition for postconviction relief. He argued that his conviction for
first-degree premeditated murder must be set aside and that, based on a claim of ineffective
assistance of appellate counsel, he should receive a new sentencing hearing for his
conviction of possession of a firearm by an ineligible person. The district court denied
Petersen’s petition without a hearing, and Peterson now appeals.
ANALYSIS
A person convict ed of a crime may petition for postconviction relief under Minn.
Stat. § 590.01, subd. 1 (201 8). A district court is required to hold an evidentiary hearing
and make findings of fact and conclusions of law “[u]nless the petition and the files and
records of the proceeding conclusively show that the petitioner is entitled to no relief.”
Minn. Stat. § 590.04, subd. 1 (201 8). We review a district court’s denial of a
postconviction petition for an abuse of discretion, and we review any embedded issues of
law de novo. Reed v. State, 793 N.W.2d 725, 729 (Minn. 2010). An abuse of discretion
occurs when the district court has “exercised its discretion in an arbitrary or capricious

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manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Id. at 729.
To prevail on his claim of ineffective assistance of appellate counsel, Petersen must
show th at (1) his appellate counsel’s representation on direct appeal “fell below an
objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),
and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different ,” id. at 694; see also Duke s v. State,
621 N.W.2d 246, 252 (Minn. 2001). Courts “may analyze the Strickland requirements in
either order and may dispose of a claim on one prong without considering the other.”
Lussier v. State , 853 N.W.2d 149, 154 (Minn. 2014). In addition, when determining
whether an attorney’s performance fell below an objective standard of reasonableness,
courts do not second -guess the decision of appellate counsel not to raise a claim that
“counsel could have legitimately concluded would not prevail.” Reed, 793 N.W.2d at 733
(citation omitted) (internal quotation marks omitted).
On appeal, Petersen raises four c laims of error in the district court ’s summary
dismissal of his postconviction petition. We consider each claim in turn.
A.
Petersen first argues that the district court erred by determining that his appellate
counsel was not ineffective for failing to argue that his convictions for first-degree murder
and second-degree murder violated Minn. Stat. §§ 609.04 and 609.035 (2018).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 . In other

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words, “the State may not convict a person for both a crime and its lesser-included offense.”
State v. Johnson, 773 N.W.2d 81, 89 (Minn. 2009); see also State v. Wipper, 512 N.W.2d
92, 94 ( Minn. 1994) (explaining that the defendant could not be convi cted of both first -
degree murder and second -degree murder for the same conduct). “We have long
recognized that the ‘conviction’ prohibited by [Minn. Stat. § 609.04] is not a guilty verdict,
but is rather a formal adjudication of guilt.” Pierson v. State, 715 N.W.2d 923, 925 (Minn.
2006) (citation omitted) (internal quotation marks omitted) . “[A] conviction occurs only
after the district court judge accepts, records, and adjudicates” a finding of guilt. Id.
Accordingly, the procedure a district court should follow when a defendant is convicted of
a charged offense and a lesser -included offense is “to adjudicate fo rmally and impose
sentence on one count only.” State v. Ma rtinez, 725 N.W.2d 733, 739 (Minn. 2007)
(citation omitted) (internal quotation marks omitted).
Although similar to section 609.04, section 609.035 focuses on the issue of
sentences, as opposed to conviction. It states:
Except [for subdivisions and sections that do no t apply to this case], if a
person’s conduct constitutes more than one offense under the laws of this
state, the person may be punished for only one of the offenses and a
conviction or acquittal of any one of them is a bar to prosecution for any
other of them.

Minn. Stat. § 609.035, subd. 1 . “Section 609.035 contemplates that a defendant will be
punished for the most serious of the offense s arising out of a single behavioral incident
because imposing up to the maximum punishment for the most serious offense will include

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punishment for all offenses.” 3 State v. Ferguson , 808 N.W.2d 586, 589 (Minn. 2012)
(citation omitted) (internal quotations marks omitted). The purpose of section 609.035 is
“to limit punishment to a single sentence where a single behavioral incident result[s] in the
violation of more than one criminal statute.” State v. Bookwalter , 541 N.W.2d 290, 293
(Minn. 1995) (citation omitted) (internal quotation marks omitted). “Multiple punishment
refers not to multiple convictions but multiple sentences.” Id. (citation omitted) (internal
quotation marks omitted). When a defendant is found guilty of both first-degree and
second-degree murder, no violation of section 609.035 occurs when “the district court
convict[s] him of first-degree murder and sentence[s] him on that count” only. Rhodes v.
State, 735 N.W.2d 315, 320 n.7 (Minn. 2007).
In this case, the district court acknowle dged that the sentencing order arising from
the court trial erroneously states that Petersen was “convicted” of second-degree intentional
murder. More specifically, the district court acknowledged that “the sentencing order dated
October 7, 2016 contains a clerical error i n indicating [that Petersen] was convicted of ”
second-degree intentional murder ; thus, the court directed that the order “ be corrected to
reflect [that Petersen] was found guilty by the court but no conviction was entered by the
court.” The district court also observed that no punishment was imposed for the second -

3 There are exceptions to the prohibition in section 609.035 on multiple sentences for
a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). For
example, multiple sentences are allowed when a defendant commits a firearm offense as
part of the same behavioral incident with another crime. See State v. Williams, 771 N.W.2d
514, 520 (Minn. 2009).

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degree murder offense.4 In other words, the district court acknowledged the need to correct
a clerical error in the sentencing order and concluded that there was no section 609 .035
violation because no punishment was imposed for the second-degree murder offense.
On appeal, Petersen fails to acknowledge that the district court agreed that the
clerical error in the sentencing order required correction for consistency with section
609.04. Instead, he contends that the guilty verdicts for both first -degree murder and
second-degree murder violate sections 609.04 and 609.035. We disagree.
As a matter of law, the guilty verdicts for both first -degree murder and second -
degree murder do not violate section 609.04 or section 609.035. A guilty verdict is not a
conviction. Pierson, 715 N.W.2d at 925 (holding that “a conviction occurs only after the
district court judge accepts, records, and adjudicates” a finding of guilt). And, in
accordance with Bookwalter, 541 N.W.2d at 293, Petersen was not sentenced for second-
degree murder. Instead, like the defendant in Rhodes, 735 N.W.2d at 320 n.7, Petersen
was convicted of first -degree murder and sentenced on that count only. As explained in
Ferguson, 808 N.W.2d at 589, sentencing Petersen on the first-degree murder count—the
most serious offense —aligns with the purpose o f section 609.035. Thus, appellate
counsel’s performance did not fall below an objective standard of reasonableness when she
did not raise claims on direct appeal that the guilty verdicts violated sections 609.04 and
609.035.

4 The district court relied on th e following statement in the transcript: “With regard
to Count Two, murder in the second -degree with intent, I do find and adjudge you to be
guilty of that offense and I’m sorry, what would be the guideline sentence on that? Well,
I’m sorry. I’m not going to sentence you on that offense. I withdraw that.”

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B.
Petersen next argues that the district court erred by determining that his appellate
counsel was not ineffective when counsel failed to argue that the charging document was
defective.5 Petersen’s argument fails under both prongs of Strickland.
Under the first prong of Strickland, Petersen’s argument fails because he has not
shown that appellate counsel’s failure to challenge the charging document fell below an
objective level of reasonableness. 466 U.S. at 688. “An offense punishable by life
imprisonment must be prosecuted by indictment. The prosecutor may initially proceed by
a complaint after an arrest without a warrant or as the basis to issue an arrest warrant.” 6
Minn. R. Crim. P. 17.01, subd. 1 (emphasis added). In addition, the purpose of a charging
document is to “specify the charge and at the same time to prevent defendant from being
charged twice with the same crime.” State v. Hall , 176 N.W.2d 254, 260 (Minn. 1970)
(stating that an information under which a defendant was charged is sufficient when “it
adequately apprises the defendant of the charge on which he is being held and upon which
he will be tried”).

5 Petersen argues that the charging document was defective for several reasons. First,
he argues that the State was not permitted by the rules to amend the complaint to charge
first-degree murder. Second, Petersen argues that the district court inappropriately
analyzed his claim of ineffective assistance of appellate counsel. Finally, Petersen argues
that the grand jury indictment was faulty because the prosecution failed to convene a grand
jury within 14 days of the Rule 8 hearing.

6 The State may amend a complaint when “the evidence presented establishes
probable cause to believe that the defendant has committed a different offense from that
charged in the complaint, and the prosecutor intends to charge the defendant with that
offense.” Minn. R. Crim. P. 3.04, subd. 2(b).

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Here, Petersen argues that a complaint can never charge first-degree murder. This
is incorrect. Rule 17.01 explicitly states that the prosecution can “proceed by complaint”
for a first-degree murder charge while awaiting a grand jury indictment. Minn. R. Crim.
P. 17.01, subd. 1. Moreover, similar to the purpose of a charging document explained in
Hall, the amended complaint here, as the district court explained, notified “the district court
of the basis for a charge of first-degree murder and . . . served as a basis to hold [Petersen].”
Based on the cl ear language of Rule 17.01 , it was reasonable for appellate counsel to
believe that Peterson’s argument was not viable.
Under the second prong of Strickland, Petersen fails to show that, even if appellate
counsel had argued on direct appeal that the charging document was defective, the outcome
would have been different. Because Rule 17.01 allows a complaint to charge first -degree
murder while a grand jury is convened, and because the timing requirement in Minn. R.
Crim. P. 8.02 is no t triggered until notice is given by the prosecution that it intends to
convene a grand jury, 7 there is no basis for a claim that the charging document was
defective. Moreover, the district court had the discretion to reject Petersen’s plea. See
Petersen, 910 N.W.2d at 6 (explaining that the district did not abuse its discretion by
refusing to accept Petersen’s guilty plea and noting that a defendant does not have an

7 The State cites State v. Vang for the proposition that the timing requirement in Rule
8.02, subdivision 2, “is triggered only by the conditions of the first paragraph: a complaint
charging a homicide and notification by the prosecuting attorney that the case will be
presented to the grand jury, or the charging of an offense punishable by life imprisonment.”
881 N.W.2d 551, 556 (Minn. 2016) . Therefore, the timin g requirement in Rule 8.02 was
not triggered until Petersen’s second appearance in court. And because the grand jury
issued the indictment five days later, there was no violation of the timing requirement in
Rule 8.02.

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aboslute right to plead guilty). Therefore, Petersen has not shown a reasonable probability
that the outcome would have been any different, as required by the second prong of
Strickland. 466 U.S. at 694.
C.
Petersen also argues that his appellate counsel was ineffective by failing to assert
that the amended complaint was a defective charging document. Had that argument been
pursued, he asserts, the first -degree murder charge would have been dismissed, leaving
only the second-degree murder charge, for which the district court would have been
compelled to accept his plea . In support of t his argument, Petersen relies on State v.
Linehan, 150 N.W.2d 203 (Minn. 1967), which he contends holds that he has an absolute
right to plead guilty to the second-degree murder charge.
To appropriately analyze Petersen’s argument, the context of Linehan is important.
In Linehan, the defendant was charged by indictment with first-degree murder, third-degree
murder, and kidnapping. Id. at 205. The defendant attempted to plead guilty to the third -
degree murder charge, but the district court rejected that plea. Id. Subsequently, the
prosecution dismissed the indictment , charged only kidnapping, and the defendant was
convicted. Id. On appeal, we stated that “[t]here is nothing in the grand jury’s action
showing an intent to vary the rule that the defendant has no absolute right to plead guilty
to anything less than the entire indictment.” Id. at 207. Petersen interprets this language
to imply that if a defendant has no absolute right to plead to anything less than the entire
complaint, then the defendant necessarily has an absolute right to plead to the entire
complaint.

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But Linehan does not create an absolute right to plead guilty. Petersen ignores
contrary language in the Linehan opinion two paragraphs earlier that states: “It is clear to
us that [Minn. Stat. §§ 630.11 and 630.30] contemplate not an absolute right on the part of
a defendant to plead guilty, but a power on the part of the court, in its discretion, to allow
him to do so in p roper cases.” Id. at 206 (emphasis added). In short, accepting a plea is
within the district court’s discretion . See Petersen, 910 N.W.2d at 6; see also Minn. R.
Crim. P. 15.04, subd. 3(2) (“The judge may accept a plea agreement of the parties when
the interest[s] of justice would be served.” (emphasis added)).
Because appellate counsel reasonably could conclude that Peterson did not have an
absolute right to plead guilty under Linehan, Petersen has failed to establish the first prong
of Strickland.
D.
In addition, Petersen argues that the district court erred by failing to consider his
arguments that appellate counsel was ineffective when counsel failed to assert a violati on
of Minn. Stat. § 611.02, and instead asserted three frivolous arguments on direct appeal.8
Petersen contends that his first -degree murder conviction violates Minn. Stat.
§ 611.02, arguing that this statute allows a conviction only on the second-degree murder
count. We disagree.

8 Petersen does not e xplicitly a ssert that the district court abused its discretion by
summarily denying his postconviction petition without discussing his section 611.02
argument. But in his brief he states, “[The district court] makes no mention whatsoever of
611.02” and the “court di d not address this issue” in reference to Minn. Stat. § 611.02.

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Every defendant in a criminal action is presumed innocent until the contrary
is proved and, in case of a reasonable doubt, is entitled to acquittal; and when
an offense has been proved against the defendant, and there exists a
reasonable doubt as to which of two or more degrees the defendant is guilty,
the defendant shall be convicted only of the lowest.

Minn. Stat. § 611.02. The statute codifies the common -law burden -of-proof standard,
proof beyond a reasonable doubt, for criminal prosecutions. It also codifies the proposition
that when someone is charged with two or more degrees of an offense (i.e., first and second
degree), and reasonable doubt exists as to the higher degree (i.e. first degree), the defendant
can be convicted only of the lower degree (i.e. second degree).
We considered, and rejected, a similar argument in State v. Hallmark, stating that
“section 611.02 does not require a defendant found guilty of two crimes to be sentenced on
the less er of the two crimes.” 927 N.W.2d 281, 306 (Minn. 2019) .9 In Hallmark, the
defendant was found guilty of first -degree premeditated murder and second -degree

Because we liberally construe postconviction petitions, we will address this issue. See
Minn. Stat. § 590.03 (2018); see also Roby v. State, 787 N.W.2d 186, 191 (Minn. 2010).

9 Hallmark is not cited by either party, but it is the most relevant case on this issue.
Instead, Petersen dedicates a large portion of his brief to discussing the merits of Morrow
v. State, 886 N.W.2d 204 (Minn. 2016). In Morrow, we held that the appellant’s argument
under Minn. Stat. § 611.02 was “misplaced because the jury verdicts demonstrate beyond
a reasonable doubt that [defendant] was guilty of both charges.” 886 N.W.2d at 20 7 n.3.
In other words, when it is clear that a defendant is guilty beyond a reasonable doubt of the
more serious offense, then there is no violation of section 611.02.
Petersen also cites State v. Hernandez, No. C8-00-1482, 2001 WL 641526 (Minn.
App. June 12, 2001), in his brief to support his argument that section 611.02 requires a
second-degree murder sentence here. But Hernandez involves a case in which the court of
appeals held, based on the language of the jury instructions, that the jury’s verdicts were
legally inconsistent. Id. at *2. The instructions required the jury to find that the defendant
“knew or believed” that the substance she was selling was cocaine for one charge, while
simultaneously finding that the defendant “knew or believed” that the substance she was
selling was amphetamine for a different charge. Id. at *1. That is not this case.

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intentional murder. Id. at 287–88. On direct appeal, the defendant argued that the district
court violated section 611.02 when it sentenced him based on the first-degree murder
conviction “because the district court could have sentenced him on the second-degree
murder conviction.” Id. at 306. We explained that such an argument “misstates the nature
of Minn. Stat. § 611.02” and we “declined to reduce a first -degree murder conviction
supported by sufficient evidence to a second-degree murder conviction under [Minn. Stat.
§ 611.02].” Id.
Like the defendant in Hallmark, Petersen also misstates the meaning of
section 611.02. Petersen argues that, because he was found guilty of both first -degree
premeditated murder and second -degree intentional murder, “there is a doubt as to which
of the two the [judge] intended to find [him] ‘guilty ’ of.” But verdicts finding Peterson
guilty of both first-degree and second-degree murder do not, by definition, create “doubt”
as to his guilt for either crime. Rather, Petersen is guilty of both crimes; he was convicted
of, and sentenced for, first-degree premeditated murder and neither the conviction nor the
sentence are prohibited by section 611. 02. And on direct appeal, we concluded “that the
only reasonable inference to be drawn from the totality of the evidence is that Petersen’s
murder of Passauer was a premeditated act.” Petersen, 910 N.W.2d at 8. Thus,
section 611.02 is inapplicable here because there is no doubt about Petersen’s guilt of first-
degree premeditated murder.10

10 Petersen also contends that appellate counsel was ineffective because three frivolous
arguments were made on appeal: (1) there was insufficient evidence of premeditation ;
(2) transferred intent d oes not apply; and (3) the district court erred by not accepting hi s

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In sum, the district court did not abuse its discretion in concluding that the petition,
files, and records of the proceedings conclusively show that Petersen is entitled to no relief
on his postconviction claim of ineffective assistance of appellate counsel. The district court
therefore did not err by summarily dismissing that petition.
CONCLUSION

For the foregoing reasons, we affirm the decision of the district court.

Affirmed.

GILDEA, C.J., took no part in the consideration or decision of this case.

guilty plea on the ground that the second appearance was an Omnibus Hearing under Minn.
R. Crim. P. 11. Petersen does not cite, nor have we found, any legal precedent supporting
his claim that the assertion of unsuccessful arguments constitutes ineffective assistance of
appellate counsel; he also does not allege that he was harmed by the assertion of these
unsuccessful arguments. Thus, this argument fails under the second prong of Strickland
because there is not “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” 466 U.S. at 694.