Mitchell Le Dac Ho, 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This opinion will be unpublished and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
A19-2035

Mitchell Le Dac Ho, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 14, 2020
Affirmed
Gaïtas, Judge

Hennepin County District Court
File Nos. 27-CR-17-32319, 27-CR-18-7511

Charles L. Hawkins, Minneapolis, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Reyes, Pres iding Judge; Bratvold, Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Mitchell Le Dac Ho challenge s the postconviction court’s order denying
his petition for postconviction relief. Ho argues that he is entitled to withdraw his guilty
pleas to two counts of third-degree crimin al sexual conduct because his trial attorney

2
provided ineffective assistance of counsel by misinforming him about the availability of a
consent defense, and by misleading him about the possibility of a life sentence. He also
argues that his guilty pleas were invalid beca use they were not know ing, intelligent, and
voluntary.
We conclude that Ho’s attorney was not ineffective and that Ho’s guilty pleas were
valid. We affirm.
FACTS
Ho worked as a massage therapist at a massage franchise. In 2017 and 2018, the
state filed three criminal complaints, each charging Ho with a single count of third-degree
criminal sexual conduct under Minnesota Stat utes section 609.344, subdivision 1(o)
(2016). The complaints alleged that Ho had sexually assaulted three female clients while
providing massages during his employment. Tw o complainants were adults and one was
a juvenile.
Guilty pleas and sentencing
In June 2018, Ho entered into a plea ag reement with the state, pleading guilty to
third-degree criminal sexual conduct in two cases, including the case involving the juvenile
complainant. The state dismis sed the third case and agreed not to charge a fourth case
involving a fourth comp lainant. Additionally, the state agreed to a sentencing cap of 82
months’ imprisonment. Under the agreement, Ho would be free to pursue a downward
departure at sentencing.
At the plea hearing, the district court found that Ho’s waiver of his trial rights was
knowing, intelligent, and voluntary. To establish a factual basis for the pleas, Ho admitted

3
that he sexually assaulted two paying clients while performing massages. He testified that,
in January 2016, he digitally pe netrated an adult client’s vagina without her consent. Ho
admitted that in September 2017, he digitally penetrated a juvenile client’s vagina without
her consent.
After the plea hearing, Ho’s attorney f iled a motion for a downward departure from
the sentencing guidelines, requesting either a dispositional or durational departure. At the
sentencing hearing, Ho expressed remorse, stating that he had “believed [his] actions were
consensual at the time,” but he had “misread the situations.” He accepted that his actions
were criminal, and he apologized for the pain that he caused the victims and their families.
The district court acknowledged that Ho had expressed remorse and accepted
responsibility, and noted that the defense had submitted an “excellent” sentencing
memorandum and many favorable letters on behalf of Ho. But the district court also stated
that it had to consider the nature of the offenses, which were committed against multiple
women in a vulnerable position over a span of many months. The district court ultimately
sentenced Ho to concurrent prison sentences of 42 months and 62 months.
1
Postconviction proceedings
Several months later, in January 2019, Ho petitioned for postconviction relief. He
alleged that his trial counsel had been ineffective and that his guilty pleas had not been
knowing, voluntary, and intelligent. The postconviction court held an evidentiary hearing.

1 The record shows that the district court th ought that it sentenced within the guidelines
range, but it inadvertently sentenced three months below the botto m of the range, which
was 65 months. See Minn. Sent. Guidelines 4.B.

4
During the hearing, the postconviction court received several exhibits and heard testimony
from Ho, his trial attorney, his mother, and a criminal-defense expert witness.
Ho’s trial counsel testified that she had mistakenly informed Ho that consent was
not a defense in the case involving the juve nile complainant. The information was
incorrect; in each of the charged cases, the state had to prove nonconsensual sexual conduct
in order to obtain a conviction. See Minn. Stat. § 609.344, subd. 1(o). Based on trial
counsel’s misinformation, however, Ho believed that consent was not a defense in the case
involving the juvenile at the time of his guilty plea.
According to the testimony at the postco nviction hearing, Ho discovered after he
pleaded guilty, but before sentencing, that cons ent was, in fact, a possible defense to the
case involving the juvenile. Ho contacted his trial attorney, who immediately arranged to
meet with Ho and his mother.
During a lengthy meeting on July 11, 20 18, Ho’s attorney acknowledged the
mistake and advised Ho about hi s options. First, she offered to assist Ho in withdrawing
his guilty pleas based on her e rror. Second, she offered to withdraw as counsel from the
case if Ho wished. Third, if Ho did not opt to withdraw the pleas, she offered to pursue a
downward departure as originally planned.
Ho’s attorney also assessed the likely su ccess of a consent defense at trial. She
advised Ho that, in her opinion, the defens e would be difficult be cause four unrelated
complainants had alleged factually similar sexual assaults. She told Ho that testimony from

5
all the complainants would likely be used as evidence in each trial, as the prosecutor had
specifically advised her of the state’s intention to admit this testimony as Spreigl evidence.2
The trial attorney also advised Ho about his potential sentencing exposure without
the plea bargain. She observed that to “b eat” the state’s plea offer, which capped
sentencing at 82 months, Ho would have to obtain not-guilty verdicts for three of the four
alleged incidents.3 The attorney also discussed mandatory life sentences for repeat sexual
offenders under Minnesota Statutes section 60 9.3455 (2018), advising Ho that he could
potentially face such a sentence if he was convi cted in each of the cases. Although she
believed it was a remote possibility, she believed she was ethically obligated to inform Ho
of all potential sentences.
Ho’s attorney testified at the postconviction hearing th at the possibility of a life
sentence was not the “crux” of the conversation at the July 11 meeting. She told Ho on
multiple occasions that she believed his exposure, if convicted on the three charged counts,
would be about ten years’ imprisonment. The trial attorney based this assessment on the
Minnesota Sentencing Guidelines grid, which she showed Ho.4

2 Spreigl evidence refers to evidence admitted under Minn. R. Evid. 404(b), which allows
“evidence of another crime, wrong, or act” for a purpose other than showing character,
such as showing “proof of motive, opportuni ty, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” See State v. Spreigl, 139 N.W.2d 167 (Minn.
1965).

3 A second conviction for third-degree criminal sexual conduct in Ho’s case yields a range
of 65 to 91 months under the sentencing gu idelines, with a pres umptive duration of 76
months; Ho began with a criminal history score of zero but would gain two felony points
from the first conviction. See Minn. Sent. Guidelines 2.B.1.b, 4.B (2016).

4 Ten years (120 months) appears to accurately approximate the presumptive sentence Ho
faced for a third conviction of third-degree criminal sexual conduct. The prior two

6
After the July 11 meeting, Ho decided th at he did not want to withdraw his guilty
pleas. He instructed his atto rney to focus on prep aring the sentencing departure motion.
His attorney noted in an email to Ho’s mother following the meeting that Ho’s instruction
to focus on sentencing was “unequivocal[].” 5
At the postconviction hearing, Ho testifie d that he chose not to withdraw his pleas
because he believed that he would face a mandatory life sentence if convicted on the three
charges. He explained that his belief was based, in part, on his attorney’s discussion of the
sentencing statute during the July 11 meeting, where she circled the words “shall” and “for
life” in the statutory language. According to Ho, his attorney neve r told him that, in
Minnesota, the state must indict a defendant to seek a life sentence. Ho also testified that
he never would ha ve pleaded guilty in the first pla ce had he known that consent was a
defense in the case involving the juvenile complainant. Ho’s mother offered corroborating
testimony, stating that she believed her son pleaded guilty because he did not know consent
was a defense and because he felt he had no other option.
Ho called a practicing criminal defense attorn ey to testify as an expert witness at the
postconviction hearing. The attorney testified that, based on hi s review of the case, Ho’s
lawyer had been ineffective and her performance had prejudiced Ho.

convictions would result in two felony points each, and, with a criminal history score of 4,
the sex offender grid denotes a range of 100 to 140 months, with a presumptive sentence
of 117 months for the third offense. Minn. Sent. Guidelines 2.B.1.b, 4.B (2016).

5 Ho’s mother disagreed with Ho’s decision to move forward with sentencing. The record
reflects that she believed that any prison time for her son would be an unfair outcome.

7
In a detailed order, the postconviction co urt denied Ho’s request for postconviction
relief. First, the postconviction court reject ed Ho’s ineffective- assistance-of-counsel
claim, concluding that Ho had failed to establish that his trial attorney’s performance was
deficient and that he was prejudiced by th e attorney’s performan ce. And second, the
postconviction court determined that Ho had fa iled to establish that a manifest injustice
required the withdrawal of his pleas because his guilty pleas were accurate, voluntary, and
intelligent.
This appeal follows.
D E C I S I O N
An appellate court reviews the denial of a postconviction petitio n for an abuse of
discretion. Rhodes v. State , 875 N.W.2d 779, 786 (Minn. 2016). The reviewing court
considers the postconviction court’s “legal conclusions de novo and . . . findings of fact for
clear error.” Id. Appellate courts “do not revers e the postconviction court unless the
postconviction court exercised its discretion in an arbitrary and capricious manner, based
its rulings on an erroneous view of the law, or made clearly erroneous factual findings.”
Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015) (quotation omitted).
Once a defendant enters a guilty plea, there is no absolute right to plea withdrawal.
Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). If a defendant moves to withdraw a
guilty plea before sentencing, the district court “may allow” w ithdrawal “if it is fair and
just to do so.” Minn. R. Crim. P. 15.05, subd. 2. But when a defendant moves to withdraw
a guilty plea after sentencing, the mani fest-injustice standard applies. See id., subd. 1.
Under that standard, “the court must allow a defendant to withdraw a guilty plea upon a

8
timely motion and proof to the satisfaction of the court that withdrawal is necessary to
correct a manifest injustice.” Id. Ordinarily, a manifest injus tice exists if a guilty plea is
not valid. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007 ). To be valid, a guilty plea
must be “accurate, voluntary, and intelligent.” Id. (quotation omitted). Because ineffective
assistance of counsel can render a plea i nvalid, “a guilty plea based on ineffective
assistance of counsel creates a manifest injustice as a matter of law.” State v. Ellis-Strong,
899 N.W.2d 531, 541 (Minn. App. 2017).
Ho challenges his guilty pl eas on two grounds. First, he alleges that his pleas were
invalid based on ineffective assistance of counsel. And second, he argues that there was a
manifest injustice requiring plea withdrawal because his pleas were not accurate, voluntary,
and intelligent. We address each argument in turn.
I. The postconviction court did not err by denying postconviction relief based on
ineffective assistance of counsel.

The United States and Minnesota Constitu tions guarantee criminal defendants the
right to effective assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. 1, § 6.
The right to effective counsel applie s during the plea-bargaining process. See Lafler v.
Cooper, 566 U.S. 156, 168, 132 S. Ct. 1376, 1387 (2012). To demonstrate ineffective
assistance of counsel in the context of a guilty plea, a defendant must satisfy a two-prong
test based on the standard from Strickland v. Washington , 66 U.S. 668, 104 S. Ct. 2052
(1984). State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). First, the defendant must show
“that counsel’s representation fell below an objective standard of reasonableness.” Id.
(quoting Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064). Second, the defendant must
show prejudice by demonstrating that ther e is “a reasonable pr obability that, but for

9
counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on
going to trial.” Ellis-Strong, 899 N.W.2d at 536 (quotation omitted). When one prong of
the Strickland test is determinative, an appellate c ourt need not address the other prong.
State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
While appellate courts apply a clear-error standard in reviewing the postconviction
court’s findings of fact, “the postcon viction court’s analysis of the two Strickland
requirements is subject to de novo revi ew because the performance and prejudice
components of the ineffectiven ess inquiry [involve] mixed qu estions of law and fact.”
Pearson v. State, 891 N.W.2d 590, 600 (Minn. 2017) (quotation omitted).
We analyze each Strickland prong in turn, beginning with whether Ho’s attorney’s
performance fell below an objective standard of reasonableness and then turning to whether
Ho has demonstrated prejudice.
A. Ho’s trial attorney’s overall performance did not fall below an objective
standard of reasonableness.

“The objective standard of reasonablen ess is defined as representation by an
attorney exercising the customary skills and diligence that a reasonably competent attorney
would perform under similar circumstances.” State v. Vang , 847 N.W.2d 248, 266-67
(Minn. 2014) (quotations omitted). The reas onableness of counsel’s conduct should be
judged by “the facts of the pa rticular case, viewed as of th e time of counsel’s conduct.”
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. To dete rmine whether an attorney’s
representation was reasonable, courts look to “prevailing professional norms” in the legal
community. Ellis-Strong, 899 N.W.2d at 539 (quotation omitted). The norms of practice

10
reflected in the American Bar Association (ABA) standards “are guides to determining
what is reasonable.” Id. (quotation omitted).
“[T]here is a strong presumption that counsel’s performance was reasonable.”
Andersen v. State , 830 N.W.2d 1, 10 (Minn. 2013). The Minnesota Supreme Court has
noted that:
Mere improvident strategy, bad ta ctics, mistake, carelessness,
or inexperience do not necessa rily amount to ineffective
assistance of counsel unless take n as a whole the trial was a
mockery of justice. Even misleading advice by counsel to his
client is not ground for relief, unless it clearly rises to the level
of unprofessional conduct.

State v. Bailey, 132 N.W.2d 720, 724 (Minn. 1965) (quotation omitted). In the plea-
bargaining context, “[a] defendant who receive s advice that is so substandard that it
prevents her from making a knowing and un derstanding decision regarding her plea
receives constitutionally deficient advice under the first prong of Strickland.” Anderson v.
State, 746 N.W.2d 901, 909 (Minn. App. 2008), review denied (Minn. Nov. 24, 2009),
overruled on other grounds by Wheeler v. State, 909 N.W.2d 558 (Minn. 2018).
Ho argues that his trial counsel’s performance was objectively unreasonable
because (1) the attorney misinformed him that consent was not a defense in the case with
the juvenile complainant and (2 ) the attorney told him that he could receive a mandatory
life sentence if convicted in three separate third-degree criminal sexual conduct cases. We
examine each asserted deficiency in turn, but are mindful th at Ho argues that the two
alleged errors cumulatively rendered his counsel’s assistance ineffective.

11
1. Misinformation regarding consent
Defense counsel has a duty to conduc t “relevant legal research.” ABA, Criminal
Justice Standards for the Defense Function § 4-4.6(a) (4th ed. 2017). “An attorney’s
‘mistake of law’ because of a failure to l ook up a statute may amount to an objectively
unreasonable performance.” Ellis-Strong, 899 N.W.2d at 539. This court has determined,
for example, that counsel’s performance wa s objectively unreasonable when an attorney
affirmatively misinformed a defendant about the collateral consequences of a guilty plea
even though the statute articulating those consequences was “succinct and clear.” Id. at
540.
The parties agree that Ho’s attorney misinformed him about the availability of a
consent defense in the juvenile case. The state contends, however, that Ho’s attorney
corrected her mistake by offering Ho the opportunity to withdraw his guilty pleas, and that,
accordingly, her overall representation wa s reasonable under prevailing professional
norms. The postconviction court agreed with the state, determining that the attorney’s
corrective measures remedied the deficiency.
The state cites a formal opinion of the ABA’s Standing Committee on Ethics and
Professional Responsibility, which recognizes th at “even the best lawyers may err in the
course of clients’ representations.” ABA Standing Comm. on Ethics & Prof’l
Responsibility, Formal Op. 481 at 1 (Ap r. 17, 2018).
6 If a lawyer errs and the error is
material, meaning that the error is reasonably likely to harm or prejudice the client or to

6 The ABA opinion is available online at th is link: https://www.americanbar.org/content/
dam/aba/images/abanews/ABAFormalOpinion481.pdf

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cause the client to consider terminating the representation, the lawy er must inform the
client of the error. Id. at 1-2.
Ho’s attorney should have known from a re view of the charging statute that consent
was an available defense in the case involving the juvenile complainant. See Minn. Stat.
§ 609.344, subd. 1(o). Ho wa s charged under subdivision 1(o), which provides that a
person who engages in sexual pene tration with another is guilty of third-degree criminal
sexual conduct if “the actor performs massage or other bodywork for hire, the complainant
was a user of one of those services, and nonconsensual sexual penetration occurred during
or immediately before or after the actor perf ormed or was hired to perform one of those
services for the complainant.” Id. Ho’s attorney accordingly gave him deficient advice as
to potential defenses.
But that does not end the inquiry here, where Ho’s attorney took further action upon
learning of the mistake. The re cord shows that, once Ho alerted his attorney to the error,
the attorney researched the statute, recogni zed her mistake, and promptly scheduled a
meeting for the next day. At that meeting, which lasted about two-and-a-half hours, the
attorney offered to help Ho withdraw the pleas and to submit a supporting affidavit
explaining her error. She also offered to withdraw as counsel if Ho wished. Ho’s attorney
advised Ho, however, about the ri sks of withdrawing the guilty pleas and going to trial.
She reasonably advised him that it would be difficult to succeed on a consent-based defense
at trial when the st ate intended to offer Spreigl evidence, which would mean that four
unrelated complainants would testify about factually similar sexual assaults.

13
By taking corrective action and advising Ho about his options for moving forward,
Ho’s attorney gave him the advice necessa ry to make a “knowing and understanding
decision regarding [his] plea,” or, more spec ifically, whether to withdraw his plea.
Andersen, 746 N.W.2d at 909. Courts apply a strong presumption that counsel’s assistance
was reasonable, and mistakes and misinformation do not, by themselves, render assistance
ineffective. Andersen, 830 N.W.2d at 10; see also Bailey, 132 N.W.2d at 724. Because
Ho’s attorney took prompt co rrective action to fix her mistake, we conclude that the
postconviction court did not err in determining that Ho’s attorney’s performance as to the
consent defense was not objectively unreasonable.
2. Advice regarding a potential life sentence
In a related argument, Ho contends that his attorney’s representation was ineffective
because, on top of misinforming him about the consent defense, the attorney gave him the
impression that withdrawing his pleas would subject him to a mandatory life sentence. Ho
argues that he would have withdrawn his pleas if he had understood that a life sentence
was unlikely.
As the postconviction court determined, there was a possibility—albeit a remote
one—that Ho could have receive d a life sentence. Minnesot a Statute section 609.3455,
subdivision 4(3), provides for a mandatory life sentence for repeat offenders convicted of
particular crimes, including third-degree sexual conduct offenses under Minnesota Statutes
section 609.344 (2016). To qualify for the mandatory life sentence under subdivision 4(3),
the following conditions must be met: (1) the person must have two prior sex offense

14
convictions,7 (2) the present offense and past conv ictions must involve at least three
separate victims, and (3) one of the following must apply:
(i) the fact finder determines that the present offense
involved an aggravating factor that would provide grounds for
an upward durational departure under the sentencing
guidelines other than the aggravating factor applicable to
repeat criminal sexual conduct convictions;

(ii) the person received an upward durational departure
from the sentencing guidelines for one of the prior sex offense
convictions; or

(iii) the person was senten ced under this section or
Minnesota Statutes 2004, section 609.108, for one of the prior
sex offense convictions.

Minn. Stat. § 609.3455, subd. 4(3).
Had Ho taken all three cases to trial, he could have been convicted in the first two,
thereby satisfying the first cond ition. All of the cases involv ed separate victims, which
satisfies the second condition. As to the thir d condition, the district court reasoned that
“the vulnerability of each of the victims while disrobed on a massage table could have met
the standard for an aggravated departure.” The age of the juven ile complainant also
suggested particular vulnerability and could have justified an aggravated factor. See State
v. Mohamed , 779 N.W.2d 93, 98 (Minn. App. 2010) (acknowledging the “special
vulnerability” of those under 18 in considering the age of the victim as an aggravating

7 A “prior sex offense conviction” is one where “the offender was convicted of committing
a sex offense before the offender has been conv icted of the present offense, regardless of
whether the offender was convicted for the fi rst offense before the commission of the
present offense, and the convictions involved se parate behavioral incidents.” Minn. Stat.
§ 609.3455, subd. 1(g). A “sex offense” includes third-degree criminal sexual conduct in
violation of Minnesota Statutes section 609.344. Id., at subd. 1(h).

15
factor), review denied (Minn. May 18, 2010); State v. Allen, 482 N.W.2d 228, 232 (Minn.
App. 1992) (concluding that “the [district] court did not abuse [its] discretion in
considering age as an aggrava ting factor justifying upward departure,” where the victim
was 17 years old), review denied (Minn. Apr. 13, 1992).
Ho does not argue that he had no exposu re to a life sentence under section 609.3455,
subdivision 4(3). Instead, he asserts that a life sentence was an impossibility because the
state had not charged him by indictment. In Minnesota, a defendant must be charged by
indictment rather than by complaint if th e state wishes to seek a life sentence. See Minn.
R. Crim. P. 17.01, subd. 1; State v. DeWalt, 757 N.W.2d 282, 289-90 (Minn. App. 2008).
The state did not charge Ho’s cases by indict ment. It also appears that the prosecutor
never mentioned the possi bility of an indictment to defe nse counsel. But Ho’s expert
witness testified that the state could seek an indictment even after charging the cases by
complaint. And the pending fourth case had not yet been charged, so it was at least a
possibility that the state might indict in the future. Thus, Ho’s attorney did not misinform
Ho that a life sentence was possible under the repeat-offender statute. Her advice was akin
to providing information about a statutory maximum sentence, or the unlikely outer limits
of what could happen.
Moreover, and significantly, the record shows that Ho’s attorney did not repeatedly
emphasize the possibility of a life sentence. She never told Ho that this was a certain or
even likely outcome; instead, she assessed his risk to be about ten years’ imprisonment and
advised him accordingly. While an email to Ho’s mother following the July 11 meeting
did highlight the possibility of a life sentence, Ho’s attorney also told Ho on multiple

16
occasions that she estimated his sentencing exposure to be ab out ten years, which
conformed to the Minnesota Sentencing Guidelines. See Minn. Sent. Guidelines 2.B.1.b,
4.B (2016). Given this evidence, we conc lude that Ho has not overcome the strong
presumption that his counsel’s performance was reasonable in this case.
B. Ho has not shown prejudice.

Even if his attorney’s representation was deficient, Ho is not entitled to relief unless
he can show prejudice. Ecker, 524 N.W.2d at 718. We conclude that he has not done so.
To show prejudice, Ho must demonstrate “a reasonable probab ility that, but for
counsel’s errors, he would have not pleaded guilty and would have insisted on going to
trial.” Campos v. State , 816 N.W.2d 480, 486 (Minn. 2012) (quotation omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In consider ing whether there was actual
prejudice, the appellate court reviews the evid ence that was before the district court.
Johnson v. State , 673 N.W.2d 144, 148 (Minn. 2004 ). “Courts should not upset a plea
solely because of post hoc assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judge s should instead look to contemporaneous
evidence to substantiate a defenda nt’s expressed preferences.” Lee v. United States , 137
S. Ct. 1958, 1967 (2017).
Ho asserts that but for his attorney’s erroneous advice about consent, he would not
have pleaded guilty, and that but for his attorney’s erroneous emphasis on a mandatory life
sentence, he would have elected to withdraw his guilty pleas once he learned that consent
was an available defense in the juvenile case.

17
Regarding Ho’s first contention, the best contemporaneous evidence of what Ho
would have done is what he did do once he learned of the consent defense. He elected not
to withdraw his guilty pleas, following re asonable advice from his attorney about the
strength of a consent-based defense at trial. On appeal, the contemporaneous evidence that
Ho points to suggesting that he always wished to proceed to trial on a consent defense
consists primarily of correspondence between his attorney and his mo ther. But the fact
that Ho’s mother wanted Ho to go to trial is not persuasi ve. That Ho decided not to
withdraw his plea when given the opportun ity, and “unequivocally” elected to focus on
seeking a departure at sentencing, shows that he wanted to main tain his guilty pleas
regardless of whether consent was available as a defense.
As to the attorney’s advice regarding a potential life sentence, the postconviction
court found that “three groups” of factors as sisted in analyzing whether Ho would have
maintained the guilty pleas but for the allegedly deficient advice: first, Ho’s decision to
plead guilty before the emphasis on the exposure to a life sentence; second, Ho’s feelings
about his innocence an d the strength of his case; and thir d, the risk of facing a lengthy
sentence, even if not a life sentence.
Concerning the first factor, the postconviction court determined that, because Ho’s
attorney did not discuss life sentences with him until after he entered the guilty pleas, the
timing of the discussion suggested that the poten tial exposure to a life sentence was not a
“but-for” cause of pleading guilty. In cons idering the second factor, the postconviction
court examined the evidence of Ho’s remorse for his actions. Ho expressed remorse to his

18
attorney as they prepared for sentencing, during the presentence investigation, and during
the sentencing hearing.
Finally, as to the third factor, the postc onviction court determined that Ho was
motivated to plead guilty by his desire to avoid a lengthy prison sentence in general—not
specifically to avoid a life sentence. Ho’s attorney advised him that she believed it was
unlikely that he would win at trial and that , if convicted on three counts, he faced a
presumptive sentencing range of 100 to 140 months. See Minn. Sent. Guidelines 2.B.1.b,
4.B. A fourth case of fourth-degree criminal sexual conduct would have exposed Ho to a
presumptive sentencing range of 102 to120 months. Id. Ho could have faced even more
time if the state proved an aggravating fact or or if the court imposed permissive
consecutive sentences. The postconviction court noted that Ho’s strategy in directing his
attorney to forgo a plea withdrawal motion and to focus on the argument for a sentencing
departure reflects that he knew keeping the plea deal was his best opportunity to minimize
his sentence or to avoid prison altogether.
We agree with the postconviction court’ s assessment of the totality of the
circumstances surrounding Ho’s decision-maki ng. Overall, the c ontemporaneous record
does not suggest that Ho pleaded guilty to avoid a mandatory life sentence; it suggests that
he wanted to minimize prison time generally by taking responsibility, showing amenability
to probation, and arguing for a downward departure. Given the timing of the life-sentence
discussion—which occurred after the guilty pleas—as well as Ho’s expressed remorse, and
apparent overall strategy of minimizing prison time, Ho has not demonstrated a reasonable
probability that, but for his atto rney’s advice about a life sentence, he wo uld not have

19
pleaded guilty. See Campos, 816 N.W.2d at 486. We c onclude that the postconviction
court did not err by determining that Ho failed satisfy the prejudice prong of the Strickland
test.
II. The postconviction court did not err in determining that Ho’s guilty pleas were
valid.

The validity of a guilty plea is a question of law that appellate courts review de
novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Again, there is no absolute right
to withdraw a guilty plea, Perkins, 559 N.W.2d at 685, and, after sentencing, a guilty plea
may only be withdrawn upon a timely motion and a showing that withdrawal is necessary
to correct a manifest injustice. Minn. R. Cr im. P. 15.05, subd. 1. A manifest injustice
exists where a plea is invalid, and a plea is invalid if it is not “accurate, voluntary, and
intelligent.” Theis, 742 N.W.2d at 646. The burden of establishing an invalid guilty plea
rests with the defendant. Raleigh, 778 N.W.2d at 94.
To be accurate, a guilty plea must be su pported by “[a] proper factual basis.” Theis,
742 N.W.2d at 647. This re quirement “protect[s] a defenda nt from pleading guilty to a
more serious offense than he could be convicted of were he to insist on his right to trial.”
State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The voluntariness requirement protects
a defendant from pleading guilty “due to improper pressure or coercion.” Nelson v. State,
880 N.W.2d 852, 861 (Minn. 2016) (quota tion omitted). And to be intelligent, the
defendant must understand “the charges, the rights being waived, and the consequences of
the guilty plea.” Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). “The record must
show that the defendant understood the elements of the offense and any available defenses,

20
and the possible conseque nces of conviction.” State v. Lyle , 409 N.W.2d 549, 551-52
(Minn. App. 1987).
Ho argues that his plea was not accurate , voluntary, and intelligent because, when
he made it, he “lacked a full and accurate under standing of the law regarding the juvenile
case.”
The state does not dispute that Ho’s atto rney misinformed him about the availability
of a consent defense before the guilty plea. Rather, the state argues that, because the
attorney corrected the misinformation and presented the option of plea withdrawal before
sentencing, “[t]he time to remedy the mistake was prior to sentencing.” The postconviction
court agreed, noting concern about “set[ting] precedent promoting defendants to hold off
on remedying potentially deficient pleas when they are made aware of the deficiencies in
order to try their odds at sentencing first.”
A defendant must be allowed to withdraw a plea “upon a timely motion and proof
to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”
Minn. R. Crim. P. 15.05, subd. 1. While “[t]here is no explicit time limit barring motions
for a plea withdrawal, . . . the motion should be made with due diligence, considering the
nature of the allegations quoted therein.” State v. Byron , 683 N.W.2d 317, 321 (Minn.
App. 2004) (quotation omitted), review denied (Minn. Sept. 29, 2004).
Ho makes a narrow allegation that his plea was invalid due to his misunderstanding
of the availability of a consent defense. But the record is cl ear that Ho learned about the
consent defense before sentencing, that his a ttorney offered to assi st him in withdrawing
his plea, and that he elected to maintain th e guilty pleas and procee d to sentencing. We

21
therefore agree with the postc onviction court that Ho was not diligent in challenging the
validity of his guilty plea. Cf. Trott, 338 N.W.2d at 252 (declining to allow plea withdrawal
based on a misunderstanding by the parties as to the presumptive sentence, in part because
the parties became aware of the presumptive se ntence before sentencing and “neither the
defendant nor his counsel at that time made any motion to continue the sentencing hearing
or withdraw the plea for a mistake”).
Moreover, during the guilty plea hearing, Ho admitted under oath that the sexual
contact with the juvenile complainant was nonconsensual. Ho’s admission to this element
of the offense at the time of the plea undermines his claim that he would have pursued a
consent defense had he known the defense was available.8
Under the particular facts of this ca se, where the record shows that Ho
unequivocally elected not to withdraw his plea before sentencing, after he was fully
informed about the available defenses, we co nclude that the postconviction court did not
err by denying Ho’s postconviction petition to withdraw his pleas.
Affirmed.

8 We note that Ho’s argument—while framed as a challenge to the accuracy, voluntariness,
and intelligence of his plea—primarily implicat es whether his plea was intelligent. His
plea was accurate, as it was supported by an adequate factual basis. See Theis, 742 N.W.2d
at 647. At the plea hearing, Ho entered the factual basis for his plea by admitting that he
sexually penetrated both victims, that the penetration occurred wh ile he was performing
massages on the victims, that those massages were for paying customers, and that the
sexual penetration was nonconsensual. Thes e concessions satisfy the elements of
Minnesota Statutes section 60 9.344, subdivision 1(o). See 10 Minnesota Practice,
CRIMJIG 12.121 (2020). The record also does not suggest that Ho’s plea was involuntary,
as Ho does not argue that he misunderstood the terms of the plea agreement or that he was
improperly pressured or coerced into the initial guilty plea. See Nelson, 880 N.W.2d at
861; Raleigh, 778 N.W.2d at 96.