State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1220

State of Minnesota,
Respondent,

vs.

Matt Monoleetio Vogel,
Appellant.

Filed April 12, 2021
Affirmed
Cleary, Judge*
Beltrami County District Court
File No. 04-CR-18-3567

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

David L. Hanson, Beltrami County Attorney, David P. Frank, Chief Assistant County
Attorney Bemidji, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Pr esiding Judge; Segal, Chief Judge; and
Cleary, Judge.

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

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NONPRECEDENTIAL OPINION
CLEARY, Judge
In this reinstated direct appeal of a conviction for domestic assault, following denial
of a postconviction petition seek ing withdrawal of his guilty plea, appellant argues that
(1) his guilty plea was not intelligently made because he did not know that by pleading
guilty, he waived his right to appellate review of a pretrial ruling, and (2) the district court
abused its discretion when it determined that appellant did not suffer prejudice from his
trial counsel’s ineffective assistance. Because we determine that appellant’s guilty plea was
intelligent, and the district court did not abuse its discretion, we affirm.
FACTS
Background
In October 2018, appellant Matt Monoleetio Vogel “grabbed [his girlfriend’s] arm”
with enough force to “cause[] a bruise on her ar m.” The state also alleged that he “placed
his hand over her mouth and nose, preventing her from breathing,” and “burned some of
her belongings.” Sheriff’s deputies arrested Vogel, and the state charged him with domestic
assault under Minn. Stat. § 609.2242, subd. 4 (2018); domestic assault by strangulation
under Minn. Stat. § 609.2247, subd. 2 (2018); and fifth-degree arson under Minn. Stat.
§ 609.5632 (2018).
On November 19, 2018, Vogel pleaded not guilty and demanded a speedy trial. The
district court scheduled trial to begin on Ja nuary 3, 2019; however, on that date, the state
could not locate Vogel’s girlfriend for trial. Ba sed on the state’s efforts in attempting to
locate the girlfriend and “Vogel’s apparent pa rticipation in discussions regarding these

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people being—making themselves scarce,” the district court found good cause to continue
the trial to February 19.
Before the new trial date, Vogel moved to dismiss the charges against him, alleging
a violation of his right to a speedy trial. At the February 19 hearing, the district court orally
denied Vogel’s motion to dismiss and continue d the case to February 22 to address the
state’s argument that Vogel’s right to confront his girlfriend should be forfeited as a result
of his own wrongdoing.
Guilty plea
At the February 22 hearing, before the district court ruled on the
forfeiture-by-wrongdoing matter, the parties informed the di strict court that they had
reached a plea agreement. Vogel agreed to plead guilty to domestic assault, and in exchange
the state agreed to dismiss the arson and domestic-assault-by-strangulation charges. Vogel
would then be sentenced to the guideline 21-month stayed prison sentence.
After Vogel agreed that it wa s his “decision to give up th e right to a trial and take
care of it today,” the district court asked Voge l if he had “any questions you want to ask
me or [trial counsel] before we go forward?” Vogel respond ed, “No. [Trial counsel] was
very detailed about explaining everything.” After that questioning, Vogel pleaded guilty to
felony domestic assault.
Before entering a factual basis for the plea, the prosecutor reviewed the charges with
Vogel, noted that Vogel had an attorney, and asked if Vogel was “satisfied with his [trial
counsel’s] services?” Vogel resp onded, “Yes, I am very satisfi ed with his services.” The
prosecutor then review ed the trial rights that Vogel would waive by pleading guilty,

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however there was no mention that Vogel woul d also waive his right to appellate review
of his speedy-trial claim. Vogel then admitte d to a factual basis for the domestic assault
charge, and the district court continued th e case for sentencing following a presentence
investigation. Later, in May 2019, the dist rict court accepted Vogel’s guilty plea and
entered a judgment of conviction, sentencing Vogel to 21 months in prison, stayed for five
years.
Postconviction proceedings
Vogel directly appealed his conviction, but later moved to stay the appeal pending
postconviction proceedings. We stayed the appeal, and Vogel argued in his postconviction
petition that his plea was not intelligent and th at he received ineffective assistance of
counsel.
The district court held an evidentiary hearing where both Vogel and his trial counsel
testified. Trial counsel testified that he consulted with Vogel about the rights that he would
be waiving by pleading guilty, but did not offer a plea petiti on in the case because “in
Beltrami County . . . it was not the general practice to do a felony plea petition.” Trial
counsel testified that he discussed with Voge l “the possibility that by pleading guilty, he
would not be able to appeal the denial of the speedy trial motion.” Trial counsel told Vogel
he was “not sure at that point, but that there was a . . . distinct possibility that by pleading
guilty, he would waive that right.”
Trial counsel testified that he did not conduct further research into the question, but
did consult with another attorney about the issue before speaking with Vogel, though “she
wasn’t sure about the issue yet, either, at that point.” Vogel did not request that trial counsel

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conduct further research or consult with a nother attorney. Vogel al so testified at the
hearing, though the district court found his testimony “inconsistent and not credible.”
The district court denied postconviction relief in a written order and memorandum.
First, in addressing Vogel’s ineffective-assi stance-of-counsel claim, the district court
agreed that trial counsel’s failure to “advise [Vogel] with certainty that by pleading guilty
he would be waiving his right to appeal [the district] [c] ourt’s denial of his motion to
dismiss” fell below an objective standard of reasonable representation. While trial counsel
“did not provide [Vogel] with incorrect advice, his advice was not as certain as it should
and would have been had he conducted relevant legal research.” However, the district court
found that Vogel failed to show that, but fo r trial counsel’s advice, he would not have
pleaded guilty, and therefore failed to show prejudice.
On Vogel’s motion, we dissolved the stay and reinstated this appeal.
DECISION
I. Vogel’s guilty plea was intelligent, and therefore valid.

“To be constitutionally valid, a guilty plea must be accura te, voluntary, and
intelligent.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010) (citing North Carolina v.
Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970)). A defect in any of these three
components invalidates a guilty plea. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007).
Here, Vogel argues only that his plea was unintelligent, thus we focus our analysis on that
factor.
“The intelligence requiremen t ensures that a defendant understands the charges
against him, the rights he is waiving, and the consequences of his plea.” Raleigh,

6
778 N.W.2d at 96 (citing State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983)). “A defendant
bears the burden of showing his plea was invalid.” Id. at 94. “Assessing the validity of a
plea presents a question of law that we review de novo.” Id.
Vogel’s argument rests on the expansive pr otections of the Minnesota constitution
and Minnesota state law. He points out that, unlike in the federal system, in Minnesota
criminal defendants are entitled to one state appellate or postconvic tion review as “an
example where the State law affords greater rights than the U.S. Constitution. Because
Minnesota defendants are afforded the right to appellate review, Minnesota law affords
criminal defendants greater appellat e rights than under federal law.” See, e.g., Deegan v.
State, 711 N.W.2d 89, 95-96 (Minn. 2006) (commenting that rights to appellate review are
broader under the Minnesota Constitution than under the U.S. Cons titution). Therefore,
Vogel argues, “Minnesota law on the validity of a guilty plea affords greater protections
than minimum requirements under the United States Constitution.”
We agree with Vogel, to a point. Minneso ta Rule of Criminal Procedure 15.01
requires that the district court “ensure defe nse counsel has told the defendant and the
defendant understands,” among other things, (1 ) his right to a unanimous verdict by jury
or by the district court; (2) his presumption of innocence; (3) his right to confront witnesses
against him; (4) his right to subpoena and cal l witnesses; (5) his right to testify or not
testify; and (6) the maximum and minimum pe nalty. While this is a more expansive list
than the federal requirements that a de fendant understand (1) his right against
self-incrimination, (2) his right to jury tr ial, and (3) his right to confrontation, see Boykin
v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969), the Minnesota rules do not

7
reference a defendant’s right to appeal nonjurisdictional pretrial rulings or the waiver of
that right. See Minn. R. Crim. P. 15. Nowhere in ru le 15 is there a requirement that a
criminal defendant be told that by pleadi ng guilty, he waives his right to appeal
nonjurisdictional pretrial rulings. Indeed, th e language of the mode l plea petition rather
closely resembles the advice tr ial counsel gave to Vogel. See Minn. R. Crim. P. 15,
Appendix A (“[A]ny appeal or other cour t action I may take claiming error in the
proceedings probably would be useless and a waste of my time and the court’s time.”
(emphasis added)).1
Vogel makes three additional arguments; and we address each in turn. First, Vogel
argues that “the record of [his] guilty plea di d not establish his understanding that he was
also waiving his right to appeal pre-trial is sues.” Vogel concedes that “the prosecutor
examined [him] on his understanding of the trial rights he waived by pleading guilty,” but
argues that “the absence of any confirmation of [Vogel’s] understanding that his guilty plea
waived the right to appeal the speedy-trial issue was insufficient to satisfy the intelligence
prong.”
However, as discussed above, rule 15.01 does not require that a defendant be told
that he waives his right to appeal pretrial is sues for a plea to be intelligent. Trial counsel

1 While not required by rule or relevant to our review here, we are concerned that as a
“general practice” the district courts of Be ltrami County do not require the use of felony
plea petitions. This “general practice” runs contrary to the advisory committee’s suggestion
“that the defendant sign a Petition to Plead Guilty in the form appearing in the Appendices
to these rules (which contain in an even more detailed form the information showing the
defendant’s understanding of defense rights a nd the consequences of pleading [guilty]).”
Minn. R. Crim. P. 15 cmt.

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“is not required to advise the defendant of every consequence for the defendant’s plea to
be intelligent,” Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016), but the defendant must
know of the direct consequences of a plea, which are “definite, immediate, and automatic
and are punitive and a part of a defendant’s sentence.” State v. Brown, 896 N.W.2d 557,
561 (Minn. App. 2017) (quotation omitted), review denied (Minn. July 18, 2017). Direct
consequences of a guilty plea primarily include “the maximum sentence and fine.” Raleigh,
778 N.W.2d at 96. Here, Vogel was advised of the trial rights he was waiving and the
possible sentences, but still pleaded guilty. As the state argues, and trial counsel’s
testimony shows, Vogel was at least “on notice” that his prospects for appeal were dubious
at best. When asked if he had any clarifying questions for the district court, he replied, “No.
[Trial counsel] was very detailed about explai ning everything.” Th e record shows that
Vogel was aware of the “distin ct possibility” that by pleading guilty, he waived his right
to appeal the speedy-trial issue.
Second, Vogel argues that the district court’s postconviction decision “is erroneous
because it impermissibly shifte d the burden to [Vogel] to i ndependently inquire into the
rights he waived.” While we agree with Voge l that the district court’s responsibility for
ensuring a defendant understand s the rights waived must be “ubiquitous,” Vogel fails to
recognize that the rights covered by rule 15. 01, subd. 1(6), do not include the right of
appellate review of pretrial issues. The dist rict court ensured that Vogel was made aware
of the rights described in rule 15.01, ensuring his plea was intelligently made.
Finally, Vogel argues that because his c ounsel’s advice fell below an objective
standard of reasonableness, “[i]n addition to a silent record on the waiver of his appellate

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rights, trial counsel’s failure to properly advi se or research the same leads only to the
conclusion that [Vogel] affirm atively did not understand th at pleading guilty waived his
right to appellate review” of the speedy-trial issue. To the contrary, the record includes trial
counsel’s repeated statement that he made Vogel aware of th e “distinct possibility” that a
guilty plea would result in a waiver.
Vogel asks us, in effect, to create a new requirement that “an intelligent plea must
therefore include the defendant’s understanding that his guilty plea curtails the scope of
appellate review otherwise guaranteed to him.” This rule does not cu rrently exist in the
rules of procedure or Minnesota caselaw. “The comments to Minn. R. Crim. P. 15.01, and
Minnesota case law establish that failure to interrogate a defe ndant as set forth in [r]ule
15.01 or to fully inform him of all constitutional rights does not invalidate a guilty plea.”
State v. Doughman , 340 N.W.2d 348, 351 (Minn. App. 1983), review denied (Minn.
Mar. 15, 1984). “What is important is . . . whethe r the record is adequate to establish that
the plea was intelligently and voluntarily given.” Id. We are not in a position to create a
new, intelligent-plea requirement or rewr ite the rules of cr iminal procedure. See Tereault
v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987)
(“[T]he task of extending existin g law falls to the s upreme court or the legislature, but it
does not fall to this court.”). 2 The record reflects that V ogel was examined on the rights
outlined by rule 15.01 and was told that there was a “distinct possibility” he would waive

2 Arguably, it is time for the supreme court rules committee to amend rule 15 to reflect the
best practice, instructing the district court to ensure that defens e counsel has told the
defendant and the defendant understands th at he is waiving the right to appeal
nonjurisdictional pretrial rulings.

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his right to a review of the speedy-trial issue by pleading guilty. On this record, Vogel has
failed to show that his plea was unintelligen t and thus invalid. We therefore affirm the
district court’s postconviction ruling.
II. Vogel was not prejudiced by his trial attorney’s performance.

In our review of a denial of postconviction relief claiming ineffective assistance of
counsel, we “consider the court’s factual fi ndings that are supported in the record,” and
“conduct a de novo review of the le gal implication of those facts.” State v. Nicks ,
831 N.W.2d 493, 504 (Minn. 2013). We will th en “either affirm the court’s decision or
conclude that the court abused its discreti on because postconviction relief is warranted.”
Id. at 504. Here, Vogel does not dispute the dist rict court’s factual findings, therefore we
are limited to a de novo review of the legal implications of those findings.
Criminal defendants have a co nstitutional right to effectiv e assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To succeed on
an ineffective-assistance-of-counsel claim, a defendant must show th at (1) his attorney
performed deficiently, 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,
104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. The two-prong Strickland test applies to
ineffective-assistance-of-counsel claims involving guilty pleas. Hill v. Lockhart, 474 U.S.
52, 58, 106 S. Ct. 366, 370 ( 1985). The district court found, and the state concedes, that
trial counsel’s performance fell below an objective standard of reasonableness. Therefore,

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our review is limited to whether the district court erred when it determined that Vogel did
not suffer prejudice.
Vogel makes two arguments that he suffered prejudice, and we address each in turn.
First, Vogel argues that prejudice s hould be presumed in his case, citing Roe v.
Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, (2000). In Flores-Ortega, the Supreme
Court held that when an attorney’s performance results in the loss of a defendant’s ability
to file an appeal that the defendant would have otherwis e pursued, prejudice should be
presumed “with no further showing from the defendant of the merits of his underlying
claims.” Id., at 484, 120 S. Ct. at 1038. There, c ounsel failed to file a notice of appeal
within the required timeframe, resulting in a loss of the right to appeal. Id. at 474, 120 S. Ct.
at 1033. Later, in Garza v. Idaho, 139 S. Ct 738, 743, 749 (2019), the same rule was applied
when counsel failed to file an appeal even after repeated requests from the defendant. Vogel
acknowledges that “ Garza and Flores-Ortega present different factual
circumstances . . . [b]ut, the impact is the same. . . . In either circumstance, counsel denied
their client appellate review.”
Unlike in Garza and Flores-Ortega, here, trial counsel did not entirely fail to act.
Trial counsel told Vogel that there was a “distinct possibility” that his right to appeal would
be waived upon a guilty plea. While this was poor legal advice—as the district court noted,
Vogel should have been given an affirmat ive response—it is factually distinct from a

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failure to act on a client’s instructions. Therefore, we do not presume prejudice in Vogel’s
case.3
Second, Vogel argues that the district court erred because “[u]nder the facts of this
case, trial counsel’s ‘entirely credib le’ testimony was sufficient to satisfy Strickland’s
prejudice prong, which requires proof by a prep onderance of the eviden ce that there is a
reasonable probability that trial counsel’s de ficient performance adversely impacted the
proceedings.” Credibility determinations are within the sound determination of the district
court. See State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn.
Nov. 18, 2003). Here, the district court found that Vogel’s testimony was “inconsistent and
not credible,” but found trial counsel’s testimony credible.
Vogel’s argument that trial counsel’s testimony was sufficient to satisfy Strickland’s
prejudice prong must be weighed against trial counsel’s unchanging statements that he told
Vogel there was a distinct possibility that he waived the right to appeal by pleading guilty.
The district court did not abus e its discretion by crediting th is consistent testimony. The
overall record supports the district court’s conclusion that it is unlikely that, had Vogel
been told he affirmatively waived his right to appeal by pleading guilty—rather than that a
distinct possibility of waiver existed—there would have been a different outcome.

3 The Supreme Court’s discussion of appellate waivers in Garza is helpful. In Garza,
appellant signed two plea agreem ents which contained a clause stating that he “waive[d]
his right to appeal.” Id. at 742. Despite this, the Supreme Court noted that “no appeal waiver
serves as an absolute bar to all appellate claims.” Id. at 744. This is borne out here by
Vogel’s appeal. While his guilty plea acted as a waiver of nonjurisdictional pretrial matters,
it did not affect his right to a review of the validity of the guilty plea itself.

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During the plea hearing, Vogel had no questions for the district court and noted that
his trial counsel was “very detailed about explaining everything.” Vogel also stated, “Yes,
I am very satisfied with [trial counsel’s] services.” Trial counsel agreed that he told Vogel
“that by pleading guilty, that, in fact, he may be jeopardizi ng his ability to appeal the
[district] [c]ourt’s denial of the speedy tr ial demand,” however Vogel “responded that he
still wished to plead guilty.” At no point during the plea or sentencing hearing did Vogel
bring up the fact that he was contemplating a ppealing the speedy-trial claim, and there is
no reference in the record to any of the a pproved mechanisms for entering a guilty plea
while preserving the ability to appeal. See Minn. R. Crim. P. 26.01, subd 4.
We agree with the district court that it “makes absolutely no sense” that Vogel would
not have sought further guidance from trial counsel, another attorney, or the district court,
before “diving into an ‘unsure’ future.” On this record, the district court did not abuse its
discretion in finding that, even though trial counsel’s performance fell below an objective
standard of reasonableness, Vogel still would have pleaded guilty had he been affirmatively
informed that his guilty plea would preclude review of the speedy-trial claim.
Affirmed.