Esteban Trevino, petitioner, Appellant,

This opinion will be unpublished and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
A19-0901

Esteban Trevino, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 10, 2020
Reversed and remanded
Florey, Judge

Kandiyohi County District Court
File No. 34-CR-16-982

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Cochran, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
This is an appeal from a postconviction court’ s order denyi ng appellant’s petition
to withdraw his guilty plea. Appellant argues that he had ineffective assistance of trial

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counsel because his public defender did not conduct a mental -health evaluation pursuant
to rule 20 when she should have and that because he was actually incompetent at the time
of pleading, his plea is invalid. We reverse and remand.
FACTS
The facts of this case, as found by the postconviction court, are not in dispute.
Esteban Trevino was stopped and arrested for DW I i n Novembe r 2016. A breath test
indicated that Trevino had a blood -alcohol concentration of 0.15. Trevino was cha rged
with one count of felony DW I and one count of gross misdemeanor DW I. After meeting
with the public defender two or three times, he pleaded guilty at what began as an omnibus
hearing—waiving his right to trial and accepting an offer for a “bottom-of-the-box”
sentence. Thereafter, Trevino filed a petition for postconviction relief seeking withdrawal
of his guilty plea on a theory of ineffective assistance of counsel.
Trevino has a not-insignificant history of severe mental illness, and he argued in his
postconviction petition that his guilty plea should be withdrawn bec ause (1) his counsel’s
failure to move for a r ule 20 evaluation fell below “an obje ctive standard of
reasonableness” and (2) he was thereby prejudiced because he was permitted to enter the
plea while incompetent —a fact which also renders the plea invalid, he argues. The
postconviction court summarily denied Trevino’s petition , and he appealed. This court
reversed and remanded for an evidentiary hearing.1 Trevino v. State, A17-1911, 2018 WL

1 This court concluded that the facts alleged in the petition did not conclusively show that
Trevino was not entitled to the relief h e sought under the two -prong Strickland test.
Trevino, A17-1911 at *3 -4. Specifically, the facts alleged in the petition, viewed in the
light most favorable to Trevino, did not (1) conclusively show that his attorney exercised

3
3340077 (Minn. App. July 9, 2019). After the evidentiary hearing, the postconviction court
again denied the relief Trevino sought, and Trevino appealed again. That appeal is the
matter presently before us.
Trevino has five prior DWI convictions going back to 1996, as well as a criminal-
vehicular-operation-injury conv iction from 2001. At least three of these convictions
resulted in civil commitment after findings of incompetency—the most recent one being a
12-month commitment starting on July 29, 2015. This means that there was less than 13
weeks between his release from commitment and the arrest in this case. Supporting the
2015 civil commitment was an evaluation of Trevino’s legal and psych iatric history
conducted by Dr. Robin Ballina, in which she lists Trevino’s long history of troubles with
the law and severe ps ychiatric disorders. As for the latter, sometime between 2004 and
2005, Trevino began exhibiting symptoms of “bizarre beliefs and disorganized speech,”
for which he was diagnosed with schizophrenia after his delusions became more prominent.
The schizophrenia diagnosis has remained to date, and despite some periodic success in
managing the symptoms with treatment, Trevino has remained delusional.
Around the time of her first meeting with Trevino, R.L., the public defender
assigned to his case, met with Kandiyohi County Community Corrections agent Bob
Tepfer, who was supervising Trevino following his recent release from commitment. R.L.
testified that Tepfer advised her that Trevino was “very mentally ill” and “had a long

the customary diligence that a reasonably competent attorney would nor (2) conclusively
show that he was not incompetent at the time he entered his plea and that he was therefore
not prejudiced by his attorney’s alleged misconduct. Id.

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history of mental illness.” Tep fer offered to pro vide R.L. with Trevino’s mental -health
records, but she declined. R.L. also testified that she did not recall noticing “any particular
manifestation” of Trevino’s mental illness, or “anything particularly dramatic until quite
late [in th e case].” Specifically, according to R.L., it was not until the day of the plea
hearing that Trevino “told [her] that there was a chip planted in his brain and that law
enforcement knew where he would be.” But when asked whether this delusion gave her
reason to consider prior opinions with respect to Trevino’s mental health, R.L. testified that
she “did not feel that it impacted his ability to understand that he was facing criminal
charges, what his options were, or the roles of the parties involved .” However, R.L. also
testified that, on the day of sentencing, she told Tepfer about Trevino’s abnormal
statements. When asked why she disclosed a potentially privileged conversation, she
testified that it was because she “was concerned about his mental health.”
When filling out the plea petition on Trevino’s behalf, R.L. checked a box that
indicated that Trevino had “not talked with or been treated by a psychiatrist or other person
for a nervous or mental condition.” She admitted at the postconviction hearing that this
was inaccurate, and she could not recall whether Trevino had misinformed her or she had
mistakenly checked the wrong box. However, she testified shortly thereafter that she was
aware, at that time, that Trevino had previou sly been commit ted following a r ule 20
evaluation.
After the evidentiary hearing, the postconviction court found that in spite of
Trevino’s reference to a chip in his brain and other abnormal statements involving kings,
messiahs, and “many knowing his truth; ” Trevino “interacted appropriately with

5
Ms. [R.L.].” It further found that R.L. “did believe his mental health had deteriorated since
the plea hearing, but she did not believe [he] was incompetent,” and “[s]he noted that
[Trevino] asked appropriate questions and r ationally consulted her during the time she
represented him.” Ultimately, the court determined that R.L.’s decision not to inquire
further into Trevino’s mental health “was reasonable under the circumstances at the time
of her representation,” in part because she had spent enough time with him to believe that
he understood the charges against him, his options, the roles of the different parties, and
her communications with him. The postconviction court also concluded that Trevino had
not shown that, even if he did receive ineffective assistance of counsel, his defense was
prejudiced thereby. Trevino appealed.
D E C I S I O N
This court reviews the denial of a postconviction petition for an abuse of discretion.
Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2 015). “We review legal issues de novo, but
on factual issues our review is limited to whether there is sufficient evidence in the record
to sustain the postconviction court’s findings.” Id. (quotation omitted). However,
ineffective-assistance appeals pr esent mixed questions of law and fact and are therefore
reviewed de novo. State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012). Finally, when
considering ineffective -assistance claims, “there is a strong presumption that counsel’s
performance was reasonable.” Id. at 358.
This court applies the two-prong Strickland test to ineffective assistance of counsel
claims, which asks whether the defendant has shown (1) that his coun sel’s performance
was deficient and (2) that such deficient performance prejudiced his defense. Strickland v.

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Washington, 466 U.S. 668, 687 (1984); State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).
To meet the first prong, the defendant must show “that counsel’s representation fell below
an objective standard of reasonableness.” Ecker, 524 N.W.2d at 718. As for the second—
the prejudice prong—the defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. (quotation omitted). The burden of proof on such claims is a preponderance
of the evidence. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012).
I.

Trevino alleges that R.L.’s represen tation fell below the objective -reasonableness
standard in this case because she failed to conduct a reasonable investigation into his
mental health in contravention of the duty imposed by Minn. R. Crim. P. 20.01, subd. 3.
While this argument —that failing to investigate a client’s menta l health when there is
evidence of mental illness constitutes unreasonable a ttorney conduct for ineffective -
assistance purposes—has previously been raised on appeal, most of those cases were either
dismissed on procedural grounds or relied on substantially distinct facts. However, when
this court reversed this matter for an evidentiary hearing in July, we certainly did not
preclude the possibility that an attorney’s failure to investigate a client’s mental health
could fall below the standard of objective reasonableness:
If appellant’s attorney was aware of the prior civil commitment
from communications with the probation of ficer, as alleged,
then counsel’ s inclusion of contradictory information in the
plea petition and failure to further in vestigate or que stion
appellant’s mental health and history may have fallen below
the objective standard of reasonableness.

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Trevino v. State, A17-1911, 2018 WL 3340077, at *3 (Minn. App. July 9, 2019).
There seems to be no controlling authority for this issue in this situation. Trevino
makes several arguments as to why R.L.’s conduct was unreasonable, but all of the
authority he cites is of persuasive value only and not controlling . First, he points to the
ABA standards as a guide to what is and is not reasonable. The cited sections, however,
do not add anything of substance to the already-existing duty imposed by rule 20. Trevino
also cites several cases brought in federal courts of varying jurisdictions that found attorney
performances to be unreasonable in ostensibly analogous circumstances.
While most of the relevant cases from this jurisdiction find the attorney’s conduct
reasonable, they are all factually distinguishable . Nevertheless, despite there being no
precedent to guide our analysis of what a reasonable attorney in R.L.’s position might have
done, the facts of this case compel us to conclude that “nothing” is not the answer. This
court remanded for a hearing because “[i]f appellant’s attorney was aware of the prior civil
commitment from communications with the probation officer, as alleged, then counsel’s
inclusion of contradictory information in the plea petition and failure to further investigate
or question appellant’s mental health and history may have fallen below the objective
standard of reasonableness.” Id. And the hearing clearly revealed that R.L. (1) was aware
of Trevino’s very recent civil commitment following a finding of incompetence; (2) was
advised from the outset that Trevino was not just ambiguously mentally ill, but “very”
mentally ill; and (3) provided erroneous information on the plea petition when she had
plenty of information to reveal its erroneousness. Any one of these considerations might
well be insufficient to support a finding of unreasonable performance, but it is the

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combination of them —in tandem with the fact that R.L. not only elected to refrain from
even a cursory investigation of Trevino’s competency, but affirmatively declined Tepfer’s
offer to hand-deliver everything she would need to conduct a thorough one —that leads us
to conclude that a reasonable attorney in R.L.’s position would have acted more prudently.
Our de novo review of the record and proceedings in this case reveals conduct that
we believe overcome s the “strong presumption that counsel’s performance was
reasonable,” so we reverse the postconviction court’s contrary holding on the first
Strickland prong. Hokanson, 821 N.W.2d at 358.
II.

The remaining issue under the Strickland analysis is whether Trevino has shown by
a preponderance of the evidence that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Ecker, 524 N.W.2d at 718. We have li ttle trouble concluding that Trevino has met his
burden on this prong.
An attorney’s unreasonably deficient conduct under these circumstances would
almost necessarily alter the outcome and prejudice the defendant. If an attorney was
required to request an evaluation of her client under r ule 20, then there is reason to doubt
that client’s competence; which means there is a reasonable probability that the defendant
was legally incompetent and yet permitted to enter a plea or otherwise detrimentally
participate in his own defense. See Godinez v. Moran , 509 U.S. 389, 398-99 (1993)
(holding that a defendant cannot constitutionally enter a guilty plea or stand trial while
incompetent). Our prior opinion in this matter suggests as much: “We also conclude that

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appellant alleged sufficient facts under the second prong of the Strickland test . . . appellant
alleged sufficient facts to demonstrate that he may have been incompetent at the time of
his guilty plea.” Trevino, A17 -1911 at *4. The fact that Trevino migh t have been
incompetent at the time he entered the plea is itself prejudicial to his defense and leads us
to conclude that there is a reasonable probability that, but for R.L.’s unprofessional errors,
the outcome for Trevino would have been different.
Reversed and remanded.