Michael David Larson, 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This opinion will be unpublished and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
A19-1177

Michael David Larson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 8, 2020
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CR-16-601

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

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

James C. Backstrom, Dakota County Attorney, Heather Pi penhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Rodenberg, Judge;
and Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Michael David La rson appeals from the district court’s order denying him
postconviction relief. Appellant argues that his Alford plea was induced by his counsel’s
inaccurate assurance that he would likely re ceive probation if he pleaded guilty to an
amended charge and that he should therefore be allowed to withdraw the guilty plea. We
affirm.
FACTS
On February 17, 2016, respondent State of Minnesota charged appellant with one
count of first-degree criminal sexual conduc t under Minn. Stat. § 6 09.342, subd. 1(a)
(2014). The complaint alleged that appellant had sexually assaulted A.P., the four-year-
old child of J.P., with whom appellant previous ly had a relationship. A.P. lived with J.P.
during the relationship.
Trial was scheduled for August 22, 2016. On that day, the state proposed to amend
the complaint to ad d multiple counts of criminal sexual conduct. From 9:00 a.m. until
2:00 p.m., the parties negotiated, with atto rney Kloster representing appellant. By the
lunch hour, appellant’s counsel felt as though appellant wanted to resolve the charges
against him without a trial. The state eventually made two alternative plea offers to
appellant: (1) plead guilty to second-degree criminal sexual conduct and support the plea
with a full factual basis with the possibility of a 90-month prison sent ence or (2) plead

3
guilty by way of an Alford plea to first-degree criminal sexual conduct with a sentencing
cap of 144 months.1
By 2:00 p.m., the parties had reached an agreement. The ag reement called for
amendment of the complaint to add an additi onal charge of first-degree criminal sexual
conduct under Minn. Stat. § 6 09.342, subd. 1(g) (2014), to which appellant would plead
guilty. Conditioned on appellant pleading guilty to that charge by way of an Alford plea,
the state agreed to di smiss the other count of first-degree criminal sexual conduct.
Appellant entered an Alford plea to a charge of first-degree criminal sexual conduct under
Minn. Stat. § 609.342, subd. 1(g), because it allowed him to move fo r a stayed sentence
under Minn. Stat. § 609.342, subd. 3 (2014), if, among other conditions, such a sentence
would be in the best interests of the victim or the victim’s family unit. The state agreed
that it would seek only a 144-month prison sentence.
During the plea colloquy, the district court asked appellant if he had any questions
and whether he was sure of hi s decision to plead guilty. Appe llant said that he had no
questions and that he wanted to plead guilty. Ms. Kloste r also questioned appellant.
Ms. Kloster asked appellant if he understood “that [the state] still thinks [he] should go to
prison” and that she was “going to make an argument at sentencing that [appellant] should
not go to prison.” Appellant answered, “Yes.” Ms. Kloster also asked appellant if he
understood that it would be difficult to later change his decision to plead guilty, to which

1 In limited circumstances, a criminal defenda nt may be allowed to plead guilty despite
denying the facts alleged by the state in the criminal charge, so long as the record contains
sufficient evidence of the defendant’s guilt and the plea is entered “voluntarily, knowingly,
and understandingly.” North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970).

4
appellant answered, “Correct.” Ms. Kloster asked appellant if he was “telling the Court
today that no one’s made any threats or prom ises to [him], [his] family, anybody [he]
know[s] to force [him] to plead guilty?” Appellant answer ed, “Yes.” Ms. Kloster also
asked appellant if he was pleading guilty “based upon [his] own decisions, information that
[he] ha[s] from [Ms. Kloster] , and this agreement for the Alford plea.” Appellant again
answered, “Yes.”
Appellant then admitted that the state had sufficient evidence to convict him at trial.
He specifically acknowledged that the state would present at trial testimony from J.P. and
A.P. and a recording of appella nt confessing to having sexual contact or penetration with
A.P. Appellant testified that J.P. was his ex-girlfriend and that he lived with both J.P. and
A.P. for a short period of time. The district court accepted appellant’s guilty plea.
On August 26, 2016, appellant moved fo r a dispositional departure under Minn. R.
Crim. P. 27.03 and Minn. Stat. § 609.342, subd. 3. At the sentencing hearing on
November 18, 2016, Ms. Kloster argued that a st ayed sentence was in th e best interest of
the complainant and the comp lainant’s family unit becaus e the guilty plea avoided the
prospect of J.P. and A.P. ha ving to go through a trial. Ms. Kloster also argued that
appellant’s ability to pay restitution would be enhanced if he we re not in prison.
Ms. Kloster argued that appellant’s criminal history was limited to a single misdemeanor
DWI and that appellant was “amazingly fort hcoming in the personal details that he
provided” during his presentence investigation and psychosexual evaluation. She argued
that appellant has family a nd community support, has em ployment, would respond to
treatment, and has complied with previous court orders.

5
The district court’s sentencing comments be gan with the court stating that it “had
the opportunity to review . . . the defense motions for a departure.” The district court had
received approximately 40 letters of support for appellant and observed that the courtroom
was full of people supporting appellant. Howe ver, the district court stated that it was
“unable to find substantial and compelling reasons to depart from the guidelines” and was
unable to conclude “that a dispositional departure under Minnesota Statute 609.342 would
be warranted.” Appellant was sentenced to the mandatory minimum of 144 months in
prison with ten years of conditional release.
On November 2, 2018, appellant petitione d for postconviction relief, arguing that
he had received ineffective assistance of co unsel. Appellant ar gued that Ms. Kloster
“misinformed him that he could receive a st ayed sentence and a downward dispositional
departure” under Minn. Stat. § 609.342, subd. 3, and that appellant “would not have
pleaded guilty if his attorney had informed him about the actual sentencing consequences
of his plea.”
The district court held an evidentiary hearing on appellant’s postconviction petition
at which appellant and Ms. Kloster testified.
Appellant testified that he would have gone to tr ial instead of entering the Alford
plea if he had known that probation was not possible under the statute. Appellant testified
that Ms. Kloster told him that he had a “ver y good chance” of getting probation and that
“there was only a slim chance that they might send [appellant] to prison.” Appellant agreed
that he knew “the prosecutor was going to be asking for prison,” and that it was “made
very clear that it was . . . the judge’s decision whether or not to send [him to prison].”

6
Ms. Kloster testified that she has e xperience defending people charged with
criminal-sexual-conduct crimes, has been practicing in Dakota County since 1990, appears
regularly in front of the sentencing judge in this case, and had previously appeared in front
of this sentencing judge on cases involving se x crimes. She testified that she was hired
“[a]mazingly early” in appellant’s case and th at she was prepared for trial. Ms. Kloster
testified that, after the state came forward with an amended complaint that added multiple
counts of first-degree criminal sexual con duct, plea negotiations began in earnest.
Ms. Kloster testified that she was focused on making sure that appellant would be able to
enter an Alford plea, because she knew that doing so was important to appellant. She also
testified that she “just wanted to make sure that [she] would have an opportunity to argue
for departure, because [she] felt like [they] had a great departure case.” Ms. Kloster
testified that she believed, based on her experience, that appellant was “a perfect candidate
to be treated in the community” and that the sentencing judge was one who would “find a
way to depart when [the judge] feels it’s appropriate.”
In response to the court’s questioning, Ms. Kloster explained that her decision to
argue for a dispositional departure under Minn. Stat. § 609.342, subd. 3, was based on her
feeling “that with the prior significant rela tionship, the allegati on of the significant
relationship issue, with everything that [s he] had done to set [a ppellant] up before going
into sentencing with his own treatment, his own doctors, his examinations, everything he
was doing in the community, [she] thought it would be a slam dunk departure argument.”
Ms. Kloster agreed that her plan was to argue for departure bo th under Minn. Stat.
§ 609.342, subd. 3, and based on appellant ’s particular amenability to probation.

7
Ms. Kloster explained that she discussed with appellant what would happen if the judge
did not depart, and discussed possibilities of county jail time, regi stration, treatment,
conditional release, and restitution. Ms. Klos ter testified that she was “sure [she] didn’t
make a guarantee” that the district court would depart from the sentencing guidelines, but
explained that she “was probably very supportive of the fact that . . . [appellant was] a good
candidate for departure.” Ms. Kloster testif ied that she does not “normally say to [her]
clients that they have to take offers or that they should take offers,” but instead tells them
to weigh their risks. Ms. Kloster testified th at the decision to accept the state’s plea offer
was “[appellant]’s decision with the support of his family and friends.”
Ms. Kloster testified that Dakota Coun ty is “a little loose about motion filing,”
meaning that “generally it was understood that [she] wasn’t only making a departure
motion under [Minn. Stat. § 609.342, subd. 3(g)], but also just that there [were] substantial
and compelling factors to justify a departure.”
On May 30, 2019, the district court denied appellant’s request to vacate his guilty
plea because he received ineffective assistance of counsel. In doing so, the district court
stated that “[b]ased on the plea record and te stimony at the evidentiary hearing, it is clear
that Ms. Kloster was not relying exclusively upon Minn. Stat. § 609.342, subd. 3 in moving
for a dispositional departure and advising [appe llant] that he had a ‘very good chance’ of
probation.” The district court further explained that “Ms. Kloster’s analysis was sound and
her advice to [appellant] was competent.” The district court ultimately found that appellant
“failed to demonstrate that counsel perf ormed below an objective standard of
reasonableness.”

8
This appeal followed.
D E C I S I O N
The postconviction court did not err in concluding that appellant was not denied
effective assistance of counsel.

Appellant argues that he was denied e ffective assistance of counsel because he
entered an Alford plea “based on defense counsel’s misl eading advice that the plea made
probation ‘very likely,’” only to later find out that Ms. Kloster “moved for a dispositional
departure on an impossible basis.” Therefore, he argues, he should be allowed to withdraw
his guilty plea.
“We review the denial of postconvic tion relief for abuse of discretion.” Reed v.
State, 793 N.W.2d 725, 729 (Minn. 2010). “We review issues of law de novo and findings
of fact for sufficiency of the evidence.” Uselman v. State, 831 N.W.2d 690, 693 (Minn.
App. 2013). “A postconviction court’s decision regarding a claim of ineffective assistance
of counsel involves mixed questions of fa ct and law and is reviewed de novo.” Carter v.
State, 787 N.W.2d 675, 678 (Minn. App. 2010).
A criminal defendant is guaranteed the right to effective assistance of counsel under
both the United States and Minnesota Constitutions. See U.S. Const. amend. VI; Minn.
Const. art. I, § 6. To prevail on a claim of ineffective assistance of counsel, appellant must
show that (1) “counsel’s perfo rmance was deficient” and (2 ) “the deficient performance
prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). Appellant asserts that he wanted a trial, but agreed to enter the Alford plea
under Minn. Stat. § 609.342, subd. 1(g), “onl y because [defense] counsel claimed that a

9
plea under this subdivision would make probation probable under Section 609.342,
subd. 3.”
“A defense counsel’s performance is deficient if it falls below an objective standard
of reasonableness.” State v. Gustafson, 610 N.W.2d 314, 320 (Mi nn. 2000). “There is a
strong presumption that a counsel’s performance falls within the wide range of reasonable
professional assistance.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Under Minn. Stat. § 609.342, subd. 1(g), the district court had the option of staying
imposition or execution of appellant’s sentence if it found both that “(a) a stay is in the best
interest of the complainant or the family unit; and (b) a professional assessment indicates
that the offender has been accepted by and can respond to a treatment program.” Minn.
Stat. § 609.342, subd. 3. Appellant contends that such a benefit was “factually impossible”
in this case because a stayed sentence could never have been shown to be in the best interest
of the complainant or the family unit. This impossibility , he argues, is because “[t]he
complainant’s mother stated that she and the complain ant wanted [appellant] to go to
prison.” Appellant also argues that he could not prove that a stay was in the best interest
of the family unit because “[appellant] a nd the complainant’s mother ended their
relationship before the charges were filed.”
At the sentencing hearing, Ms. Kloster argue d that a stayed sentence was in the best
interest of the complainant and family unit because it would allow J.P. and A.P. to avoid
testifying at, or otherwise participating in, the trial. At the evidentiary hearing, Ms. Kloster
testified that appellant preferred to enter an Alford plea and she wished to retain the
opportunity to argue for a dispositional departur e. Ms. Kloster also testified that because

10
of “everything that [she] had done to set [app ellant] up before going into sentencing with
his own treatment, his own doctors, his ex aminations, everything he was doing in the
community, [she] thought it would be a slam dunk departure argument.”
We agree with appellant that there is no reasonable argument that the district court
should have departed b ecause appellant’s plea saved A.P. from having to testify at trial.
Appellant had already pleaded guilty by the time the distri ct court considered the
sentencing-departure motion. Nevertheless, appellant did not demonstrate to the
postconviction court’s satisfaction that a dow nward dispositional de parture under Minn.
Stat. § 609.342, subd. 3, was “impossible.” The district court could have concluded, based
upon the constellation of arguments made by Ms. Kloster in support of the departure
motion, that the best-interests consideration under the statute would be met by appellant’s
ability to make restitution if not imprisoned, and could easily have found that appellant had
been accepted into and would ha ve responded to a treatment program. Ms. Kloster may
have been overly optimistic a bout appellant’s chances to receive a downward departure,
but the district court found, and the record supports, that she made no guarantee of a
sentencing departure.
Appellant also argues that Ms. Kloster pe rformed deficiently because she failed to
request a dispositional departure on any basis apart from Minn. Stat. § 609.342, subd. 3.
At the sentencing hearing, Ms. Kloster pr esented the district court with facts and
argument that tended to show that appellant was amenable to probation, including his
minimal criminal history, his cooperation a nd openness in the presentence investigation

11
and psychosexual evaluation, family a nd community support, employment, and
compliance with previous court orders.
At the evidentiary hearing, Ms. Kloster te stified, the district court found, and the
prosecutor agreed that motion filing is “a little loos e” in Dakota County. The
postconviction court accepted Ms. Kloster’s test imony as accurate, a nd we defer to the
district court on that factual finding.
Ms. Kloster contended that she put the di strict court on notice that she would be
arguing for a departure based on section 609.342 , subdivision 3, and on other grounds.
And the sentencing court appears to have c onsidered Ms. Kloster’s departure request as
not being limited to section 609.3 42, subdivision 3. The distri ct court’s statement that it
was “unable to find substantial and compe lling reasons to depart from the guidelines”
confirms Ms. Kloster’s testimony that her motion for a downward departure was also based
on appellant’s claimed particular amenability to probation.
The postconviction court found that Ms. Kl oster “was not relying exclusively upon
Minn. Stat. § 609.342, subd. 3 in moving for a dispositional departure and advising
[appellant] that he had a ‘very good chance ’ of probation.” The record supports the
postconviction court’s determination.
Ms. Kloster was retained early on and was ready for trial. She presented appellant
with plea offers from the state and let appellant decide what route he wanted to take.
Ms. Kloster testified that she tells her client s to weigh their risks and that the ultimate
decision to take the offer from the state was “[appellant]’s decision with the support of his
family and friends.” She also advised appe llant of the possible outcomes of his case.

12
Ms. Kloster guaranteed nothing. Instead, she discussed with appellant the possibility of a
sentencing departure. Appe llant acknowledged in his pl ea testimony that he was aware
that the state was asking for a prison sentence and that it was ultimately the judge’s decision
whether to depart from the sentencing guidelin es. That acknowledgment is inconsistent
with a belief that a departure was a foregone conclusion. Ms. Kloster has practiced in
Dakota County for many years, has appeared before the sentencing judge on criminal-
sexual-conduct cases in the past, and believed that the sentencing judge would likely grant
a departure. The district court found as a fact—and the record supports—that Ms. Kloster
told appellant that he had a “very good chan ce” of getting probation, but did not promise
him any particular outcome.
Ms. Kloster did not perform deficiently when representing appellant. “We need not
address both the performance and prejudice prongs [in the ineffective-assistance-of-
counsel analysis] if one is determinative.” Patterson v. State, 670 N.W.2d 439, 442 (Minn.
2003).
Affirmed.