Antonio Xavier Daniels, 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This opinion will be unpublished and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
A19-1279

Antonio Xavier Daniels, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 4, 2020
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Hennepin County District Court
File No. 27-CR-13-27736

Antonio Daniels, Bayport, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jordan W. Rude, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Smith, Tracy M. , Judge;
and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Antonio Xavier Daniels appeals from the district court’s denial of his
second petition for postconviction relief , arguing that: (1) the district court erroneously
concluded that his claims were procedurally barred and time -barred; and (2) his counsel

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for his first petition for postconviction relief was i neffective. Based on the merits of
Daniels’s claims , the record supports the district court’s conclusion that Daniels is not
entitled to relief. However, based on our review of the record, we must reverse and remand
to correct the sentencing order which shows that Daniels was improperly convicted and
sentenced on two offenses when one was a lesser-included offense of the other.
FACTS
On August 26, 2013, the state charged Daniels with second -degree murder , in
violation of Minn. Stat. § 609.19, subd. 1(1) (2012), following a shooting death at a Days
Inn parking lot in Brooklyn Center. The matter proceeded to a ten-day jury trial. The jury
found Daniels not guilty of the charged offense, but it found Daniels guilty of—and the
district court convicted him of—two lesser -included offenses, second -degree felony
murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (2012) , and second -degree
manslaughter, in violation of Minn. Stat. § 609.205(1) (2012).
This court provided a detailed recitation of the evidenc e provided at Daniels’s trial
in his first postconviction appeal. See Daniels v. State, No. A17-0623, 2018 WL 817286,
at *1-3 (Minn. App. Feb. 12, 2018), review denied (Minn. Apr. 25, 2018) (Daniels II). The
key facts relevant to this appeal are that the district court instructed the jury, in addition to
the charged offense, on two lesser-included offenses: second-degree manslaughter which
was requested by Daniels, and second-degree felony murder as requested by the state. Id.
at *3. The district court also instructed the jury on self -defense based on the standard
instruction for self-defense – justifiable taking of life, which was requested by Daniels. Id.

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The jury found Daniels not guilty of the second -degree murder charge and guilty of the
second-degree felony murder and second-degree manslaughter charges. Id.
On June 30, 2015, the district court sentenced Daniels for secon d-degree felony
murder to a 180 -month prison sentence with 676 days of credit and entered a conviction
on the second -degree manslaughter charge, noting “[s]entence combined with” the other
count. Daniels filed a timely direct appeal from his conviction. On November 6, 2015,
Daniels voluntarily dismissed his direct appeal. See State v. Daniels, No. A15-1573 (Minn.
App. Nov. 9, 2015) (order) (Daniels I).
In 2016, Daniels , with the assistance of counsel, filed for postconviction relief
before the district court. The district court denied Daniels’s petition on the merits. Daniels
appealed to this court with the assistance of his co unsel from the postconviction hearing.
See Daniels II, 2018 WL 817286, at *3. On appeal, this court considered: (1) whether the
state violated Daniels’s right to a speedy trial, id. at *3-5; (2) whether Daniels received
ineffective assistance of trial co unsel, id. at *5 -7; (3) whether the prosecutor at trial
committed prosecutorial misconduct, id. at *7-9; (4) whether the jury’s verdict was
inconsistent, id. at *8-9; and (5) whether the state presented sufficient evidence to convict
Daniels, id. at *9-11. We affirmed. Id. at *1. The supreme court denied Daniels’s petition
for further review. See Daniels v. State, No. A17-0623 (Minn. Apr. 25, 2018) (order).
On April 26, 2019, Daniels filed a motion in the district court “[t]o suspend the
Minnesota Rules of Civil Appellate Procedure” to “fix an inadequate and ineffective appeal
issue that was not properly addressed by this Court with post -conviction appeal and is
permissible under this Court’s inherent authority as described in Powell v. Anderson ,

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660 N.W.2d 107 (Minn. 2003).” Specifically, Daniels ’s motion requested relief because
(1) the appellate courts failed to follow precedent in addressing his appeal, ( 2) his “trial
assistance and appellate counsel [made] errors,” (3) his due process rights were violated by
using an improper self -defense instruction, and (4) his case should have been resolved
under State v. Pollard, 900 N.W.2d 175 (Minn. App. 2017). The district court construed
Daniels’s motion as a postconviction petition and found Daniels ’s postconviction petition
barred by State v. Knaffla , 243 N.W.2d 737 (Minn. 1976) , and time-barred from relief.
This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by denying Daniels’s petition for
postconviction relief.
Appellate courts “review a postconviction court’s summary denial of a petition for
postconviction relief for an abuse of discretion.” See Andersen v. State, 913 N.W.2d 417,
422 (Minn. 2018). “A postconviction court abuses its discretion when its decision is based
on an erroneous view of the law or is against logic and the facts in the record.” Riley v.
State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).
Daniels asks us to reverse the district court and remand for a new trial, arguing that
he received ineffective assistance of counsel because his counsel at his first postconviction
hearing did not raise two specific challenges to his trial counsel’s actions. The state agrees
that this case should be addressed on the merits, although the district court dismissed
Daniels’s postconviction petition as procedurally barred and time -barred. We have
considered the record and conclude that we can affirm the district c ourt after considering

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the merits of Daniels’s claim. See Hummel v. State , 617 N.W.2d 561, 563 ( Minn. 2000)
(affirming the district court’s postconviction decision on alternative grounds).
Pursuant to the Minnesota Constitution, a defendant is entitled to assistance of
counsel for “one review of a criminal conviction, whether by direct appeal or a first review
by postconviction proceeding.” Deegan v. State , 711 N.W.2d 89, 98 (Minn. 2006). A
party may present a proper “claim of ineffective assistance of p ostconviction counsel that
is based on counsel’s alleged failure to raise an ineffective assistance of trial counsel claim”
by “first establish[ing] that trial counsel was ineffective.” Pearson v. State, 891 N.W.2d
590, 600 (Minn. 2017). “Trial counsel i s ineffective if her representation fell below an
objective standard of reasonableness and a reasonable probability exists that, but for
counsel’s unprofessional errors, the result of the proceedings would have been
different.” Id.
Daniels assert s that hi s postconviction counsel was ineffective by failing to
challenge the district court’s jury instructions. First, he argues that his counsel should have
challenged the district court’s decision to provide a lesser-included offense instruction of
second-degree felony murder to the jury. Second, he claims that his counsel should have
challenged the district court’s incorrect self-defense instruction provided to the jury.
Lesser-included-offense Instruction
Daniels argues that his postconviction counsel was in effective by failing to assert
an ineffective -assistance-of-trial-counsel claim based on his trial counsel permitting the
district court to instruct the jury on second-degree felony murder. Daniels’s claim lacks
merit both factually and leg ally. To prese nt a proper ineffective -assistance-of-counsel

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claim, “[t]he defendant must affirmatively prove that his counsel’s representation fell
below an objective standard of reasonableness and that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).
First, Daniels’s trial counsel did object to the lesser -included instruction requested
by the state. Specifically , Daniels’s trial attorney asserted that the state did not elicit
testimony that Daniels “was intentionally committing any felony, whether that be an assault
or any other felony.” Daniels’s claim that trial counsel was ineffective for failing to object
is belied by the record, which reveals that counsel did object. Daniels accordingly fails to
meet the first prong for an ineffective-assistance-of-counsel claim.
Second, even if his counsel had not objected, and that was unreasonable
representation, that would not end the analysis because Daniels would need to show that
the unreasonable representation affected the verdict. Daniels’s claim on appeal is not
legally supported because he cannot show purported unreasonable representation affected
the verdict.
“The determination of what, if any, lesser offense to submit to the jury lies within
the sound discretion of the [district] court, but where the evidence warrants an instruction,
the [district] court must give it.” Bellcourt v. State , 390 N.W.2d 269, 273 (Minn. 1986)
(citations omitted).
[W]hen evaluating whether to give a lesser -included offense
instruction, trial court s must determine whether 1) the lesser
offense is included in the charged offense; 2) the evidence
provides a rational basis for acquitti ng the defendant of the

7
offense charged; and 3) the evidence provides a rational basis
for convicting the defendant of the lesser-included offense.
State v. Dahlin, 695 N.W.2d 588, 595 (Minn. 2005).
“Upon prosecution for a crime, the actor may be convicte d of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (201 2). “In
Minnesota, every lesser degree of murder is intended by [section] 609.04 to be
characterized as an included offense.” State v. Hannon , 703 N.W .2d 498, 509 (Minn.
2005); see also Minn. Stat. § 609.04, subd. 1(1) (noting that a lesser offense includes a
lesser degree of the same crime).
In State v. Lory , this court addressed the issue of whether second -degree felony
murder is a lesser included of fense to second -degree intentional murder and held that,
“Second-degree felony murder is a lesser -included offense of second -degree intentional
murder.” 559 N.W.2d 425, 426 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).
Among other issues raised in Lory, Lory challenged the district court’s instruction on
felony murder because he was indicted for second -degree intentional murder. Id. at 427.
This court rejected the “theory that the intent element of second-degree intentional murder
‘negates’ the ‘lack of intent’ element of felony murder” as an erroneous claim because lack
of intent is not an element of felony murder. Id. at 428. Further, “had the jury concluded
that [Lory] committed second-degree intentional murder, then his crime of murder dur ing
the commission of felony assault with a dangerous weapon was necessarily proven because
the intentional murder charge was based on evidence that [Lory] shot [the victim] in the
chest after first wounding him.” Id.

8
Based on caselaw and Minn. Stat. § 609.04 (2012), Daniels’s assertion that second-
degree felony murder is not a lesser-included offense to second-degree intentional murder
lacks merit. Because trial counsel objected to the instruction, and the district court did not
give an erroneous instru ction, Daniels fails to present a valid claim for ineffective
assistance of counsel on this issue.1
Self-defense Instruction
Daniels argues that his counsel was ineffective by failing to assert an ineffective -
assistance-of-trial-counsel claim based on trial counsel’s failure to object to the district
court’s self-defense instruction.
The district court provided to the jury an instruction on the justifiable-taking-of-life
instruction on self-defense, see 10 Minnesota Practice, CRIMJIG 7.05 (2015), rather than
the general instruction on self-defense, see 10 Minnesota Practice, CRIMJIG 7.06 (2015).
The state concedes on appeal that the proper instruction in this case for self-defense should
have been the general self-defense instruction. We must independently consider the legal

1 Daniels also argues in part that he cannot be convicted of second -degree felony murder
because he should be only convicted of the least serious offense, second -degree
manslaughter, pursuant to Minn. Stat. § 611.02 (2018). Daniels misreads the statute. The
statute reads,
Every defendant in a criminal action is presumed innocent until
the contrary is prove d and, in case of a reasonable do ubt, is
entitled to acquittal; and when an offense has been prove d
against the defendant, and there exists reasonable doubt as to
which of two or more degrees the defendant is guilty, the
defendant shall be convicted only of the lowest.
The jury found Dani els guilty beyond a reasonable doubt of both second -degree felony
murder and second -degree manslaughter. Accordingly, Daniels is not entitled to relief
pursuant to section 611.02 because there is no reasonable doubt to the degrees of offense.

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issue even when a party concedes in this manner. See State v. Hannuksela , 452 N.W.2d
668, 673 n.7 (Minn. 1990) (holding that appellate courts have the responsibility to address
cases based on the law) . The district court’s justifi able-taking-of-life instruction is not
proper when the self -defense claim raised by the defendant is claiming the death was not
the intended result of the action. See Pollard, 900 N.W.2d at 179.
Though the self-defense instruction provided to the jury was improper and his
postconviction counsel could have raised that claim, Daniels must demonstrate that his
counsel was ineffective because the “representation fell below an objective standard of
reasonableness and a reasonable probability exists that, but fo r counsel’s unprofessional
errors, the result of the proceedings would have been different.” Pearson, 891 N.W.2d
at 600. Because Daniels is challenging a jury instruction, he must satisfy “the ‘heavy
burden’ of showing ‘there is a reasonable likelihood that giving the instruction in question
had a significant effect on the jury verdict.’” State v. Onyelobi, 879 N.W.2d 334, 355 n.18
(Minn. 2016) (quoting State v. Kelley, 855 N.W.2d 269, 283 (Minn. 2014)).
“An erroneous jury instruction will not ordinarily have a significant effect on the
jury’s verdict if there is considerable evidence of the defendant’s guilt.” Kelley, 855
N.W.2d at 283 -84. As this court addressed in Daniels II , the evidence offered at trial
included the following:
At trial, [Daniels] admitted that he carried a .22-caliber
revolver and intentionally fired it without warning into a group
of people that included [the victim]. Forensic results matched
bullet fragments found inside [the victim’s] body to a .22 -
caliber bullet. Multiple witn esses testified that they saw
[Daniels] shoot [the victim]. [Daniels] admitted that he
discarded the revolver where the police later discovered a .22-

10
caliber revolver containing three spent cartridges. DNA that
predominately matched [Daniels] was discove red on the
revolver. This evidence is sufficient to permit the jury to
conclude that [Daniels] committed an assault with a deadly
weapon that resulted in [the victim’s] death, which constitutes
felony murder.

2018 WL 817286, at *10. Moreover, this court acknowledged the self-defense claim and
concluded that the contrary evidence showed that:
[Daniels] did not use reasonable force, and that [Daniels] made
false statements to the police about his r ole in [the victim’s]
death. Further, other witnesses testified that no one other than
[Daniels] had a weapon and that no one else acted as if he had
a firearm. There was also evidence that [Daniels] fired from
behind a tree or shrubbery. [Daniels’ s] credibility was also
impeached on cross-examination by his admission that he lied
to the police after his arrest.
Id.
Daniels is required, in an ineffective-assistance-of-counsel claim, to establish that a
purported wrong instruction that his counsel did not challenge impacted his substantial
rights. See State v. Carridine , 812 N.W.2d 130, 144 (Minn. 2012) (“Although the
justifiable-taking-of-life jury instructions were given in error, we conclude that [the
appellant] failed to establish that his substantial rights were affected by these
instructions.”). The ju ry found that Daniels did not intentionally cause the death of the
victim but that Daniels caused the death while committing or attempting to commit a
felony. In Daniels II, this court explained that Daniels did not use reasonable force, he lied
to police, that no one else had a weapon —contrary to Daniel s’s assertions—and no one
else acted as though they had a weapon. 2018 WL 817286, at *10. Based on the jury’s
finding and our prior explanation of the law, it is clear that Daniels fails to meet his burden

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on appeal to establish an ineffective-assistance-of-counsel claim for not challenging the
jury instruction. Daniels’s counsel’s decision not to raise this issue therefore does not
constitute prejudicial error meriting reversal.
II. The district court erred by entering a conviction and sentence for second -
degree felony murder and second-degree manslaughter.

Though not raised by either party before the district court or on appeal, the district
court erred by entering convictions and sentences for both second -degree felony murder
and second -degree manslaughter. Hannuksela, 452 N.W.2d at 673 n.7 (recognizing
appellate court’s obligation to decide cases according to the law). The district court noted
on the sentencing order that the sentence for second-degree manslaughter “combined” with
the sentence for second -degree felony murder. As this court has explained, “A ‘merged’
or ‘combined’ conviction or sentence is not a permissible disposition under Minnesota
law.” State v. Walker, 913 N.W.2d 463, 465 (Minn. App. 2018). Moreover, “A conviction
or acquittal of a crime is a bar to further prosecution of any included offense, or other
degree of the same crime.” Minn. Stat. § 609.04, subd. 2 (2018). Because the second -
degree manslaughter conviction is a lesser -included offense, see Hannon, 703 N.W.2d at
509, this court is compelled to reverse and remand for the district court to vacate the
conviction and sentence for the second-degree manslaughter in accordance with Minn. Stat.
§§ 609.035, subd. 1, .04, subd. 2 (2012), but permit the finding of guilt to remain, see State
v. Earl, 702 N.W.2d 711, 723-24 (Minn. 2005) (recognizing a finding of guilt remains even
when convictions are vacated by operation of Minn. Stat. § 609.04).
Affirmed in part, reversed in part, and remanded.