Kevin Scott Smith, 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This opinion will be unpublished and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
A20-0049

Kevin Scott Smith, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 16, 2020
Affirmed
Cochran, Judge

McLeod County District Court
File No. 43-CR-17-1246

Richard L. Swanson, Chaska, Minnesota (for appellant)

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

Michael K. Junge, McLeod County Attorn ey, Lauren M. Johnson, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant challenges the postconvictio n court’s denial of his petition for
postconviction relief without holding an evidentiary hearing. Because the district court did

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not abuse its discretion when it denied a ppellant’s petition for postconviction relief, we
affirm.
FACTS
This case arises out of a ppellant Kevin Scott Smith’s third-degree assault conviction
and his related postconviction claim of ineffective assistance of trial counsel. In 2017, the
state charged Smith with felony third-degree assault based on allegations that Smith hit his
estranged wife in the face, brea king her nose and palate. Prio r to trial, the state offered a
plea deal to Smith in which Smith would plead to the char ged felony offense, receive
30 days in jail, and be subjec t to certain postrelease conditi ons. Smith rejected the plea
offer and proceeded to a jury trial. At trial, Smith claimed self-defense but the jury found
him guilty. Smith appealed his convi ction and this court affirmed. State v. Smith ,
No. A18-0823, 2019 WL 1890556, at *4 (Minn. App. Apr. 29, 2019), review denied (Minn.
July 16, 2019).
Shortly after we issued our opinion, Smith petitioned the district court for
postconviction relief on the basis of ineffective assistance of trial counsel. In his petition,
Smith argued that his trial counsel’s performance was deficient because his counsel failed
to advise him that the state would have accepted a plea to a gross-misdemeanor offense—
a lesser offense than the original charge. Smith filed a supporting affidavit in which he
asserted:
After an appeal was filed with the appellate court, while
consulting with my present atto rney, I became aware that the
State would have accepted a charge to a gross misdemeanor. I
became aware for the first time that the State would have

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accepted a plea to a gross misdem eanor offense after the jury
verdict of guilty was returned.

Smith’s petition and affidavit further stated that Smith would have accepted a plea to a
gross misdemeanor because the felony conviction prevents him from carrying a firearm
and coaching his child in sports. Smith requested an evidentiary hearing on the matter.
In its answer to Smith’s petition, the state argued that Smith was not entitled to
postconviction relief because (1) his ineffe ctive-assistance-of-counsel claim was
procedurally barred, and (2 ) regardless, his petition fo r postconviction relief was
insufficient on its face because Smith failed to include any evidence relaying how or where
he learned of the claimed plea offer. Along with its answer, the state filed an affidavit of
the prosecutor who handled the case. His affidavit states, in relevant part, “the State . . . did
not offer a gross misdemeanor settlement in this matter.”
The postconviction court de nied Smith’s petition without an evidentiary hearing.
The court concluded that nothing in Smith’s affidavit or the record supported Smith’s claim
that the state had offered him a gross-misdem eanor plea agreement. The postconviction
court noted that the transcript of the January 2018 settlement conference reflects that the
plea offer made by the state was to the felony third-degree assault charge set forth in the
complaint. The court also relied on the prosecutor’s sworn statement that the state did not
offer a gross-misdemeanor plea deal. The postconviction court accordingly concluded that
the performance of Smith’s tria l attorney did not fall below an objective standard of
reasonableness, and that Smith was not entitled to a hearing on his ineffective-assistance-
of-counsel claim. This appeal follows.

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D E C I S I O N
Smith contends that the postconviction court abused its discretion by denying his
petition for postconviction relief without holding an evidentiary hearing. A court may
dismiss a petition for postconviction relief with out conducting an evid entiary hearing if
“the petition and the files and records of th e proceeding conclusively show that the
petitioner is entitled to no relief.” Minn. St at. § 590.04, subd. 1 (2 018). To determine
whether an evidentiary hearing is required, the postconviction court must consider the facts
alleged in the petition as true and view them in “the light most favorable to the petitioner.”
Anderson v. State, 913 N.W.2d 417, 422-23 (Minn. 2018) (quotation omitted). If there are
material facts in dispute and “the allegatio ns in the petition, if true, would entitle the
petitioner to relief, then the court must schedule an evidentiary hearing.” Martin v. State,
825 N.W.2d 734, 740 (Minn. 2013). Conversely, the postconviction court need not hold
an evidentiary hearing “if the petitioner fails to allege facts that are sufficient to entitle him
or her to the relief requested.” Leake v. State , 737 N.W.2d 531, 535 (Minn. 2007). A
petitioner will not meet his burden if he merely offers “conclu sory, argumentative
assertions, without factual support.” State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007).
We review a postconviction court’s decisi on to not hold an evidentiary hearing for
an abuse of discretion. Chavez-Nelson v. State, ___ N.W.2d, ___, ___, 2020 WL 5539812,
at *4 (Minn. Sept. 16, 2020). “In doing so, we review the postconviction court’s underlying
factual findings for clear error and its legal conclusions de novo.” Morrow v. State ,
886 N.W.2d 204, 206 (Minn. 2016). Because cl aims of ineffective assistance of counsel
involve mixed questions of la w and fact, we review the postconviction court’s legal

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conclusions on such questions de novo. Opsahl v. State , 677 N.W.2d 414, 420
(Minn. 2004). “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.” State v. Nicks,
831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted).
To receive a hearing on an ineffective- assistance-of-counsel claim, a postconviction
petitioner must “allege facts that, if proven by a fair preponderance of the evidence,” would
satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984). Chavez-Nelson, 2020 WL 5539812, at *4. The Strickland test
requires the petitioner to establish “(1) that his counsel’s representation ‘fell below an
objective standard of reasonableness’; and (2) ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the resu lt of the proceeding would have been
different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland, 466
U.S. 668 at 688, 694, 104 S. Ct. at 2064, 20 68). There is a strong presumption that an
attorney’s conduct was reasonable. Schleicher v. State , 718 N.W.2d 440, 447 (Minn.
2006).
In his postconviction petition, Smith asserted that his trial attorney was ineffective
because he failed to inform Smith of the “option” to plead guilty to a gross misdemeanor.
Based on its review of Smith ’s affidavit and other documents in the record, the
postconviction court determined that Smith’s trial attorney’s performance did not fall
below an objective standard of reasonablene ss because Smith failed to allege sufficient
facts to show that the state actually made a gross-misdemeanor plea offer.

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On appeal, Smith again argues that his tr ial attorney was ine ffective because he
never informed Smith of a “gro ss misdemeanor plea option.” On that basis, he contends
that the district court abused its discretion when it dismissed his petition without holding a
hearing on his ineffective-assistance-of-counsel claim.
Based on our careful review of the reco rd, we agree with th e postconviction court
that Smith failed to allege sufficient facts to support his claim of ineffective assistance of
counsel. In support of his petition, Smith provided only his own affidavit alleging that he
“became aware” sometime after he filed his dire ct appeal that “the State would have
accepted a plea to a gross misdemeanor offense.” Smith’s affidavit offers no specific facts
to support the notion that the state made a gross-misdemeanor plea offer. And Smith did
not provide any further evidence to support his claim. Smith did not file an affidavit from
his trial attorney or his appellate attorney to support his general assertion or otherwise
provide any information about when and how the offer was made, to whom it was made,
or when and how he learned of it. Moreover, Smith’s statements in his affidavit fail to
specifically allege that any plea offer was made at all. He merely asserts that he “became
aware” that the state “would have accepted” such a plea. Such claims, without more,
constitute mere conclusory, argumentative assertions, w ithout factual support.
Additionally, the prosecutor’s a ffidavit provided further eviden ce that the state did not
make the purported plea offer. The postconviction court did not abuse its discretion when
it determined that Smith was not entitled to his requested relief because the petition, files,
and records of the proceeding—even when viewed in the light most favorable to Smith—
do not show that a gross-misdemeanor plea offer existed. See Turnage, 729 N.W.2d at 599

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(stating a petitioner “has the burden on postconviction to set forth facts entitling him to the
relief requested”).
We are not persuaded otherw ise by Smith’s additional arguments in support of his
contention that the district court abused its discretion. First, relying on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), Smith argues that hi s trial counsel was required to
inform him of the distinctions between a fe lony and gross-misdemeanor conviction. In
Padilla, the United States Supreme Court held that an attorney is ineffective if she fails to
inform her client that a guilty plea “carries a risk of deportation.” Padilla, 559 U.S. at 374,
130 S. Ct. at 1486. Smith’s reliance on Padilla is misplaced. Foremost, the record lacks
support for the existence of a gross-misdemeanor plea offe r. If the state made no such
offer, Smith’s trial attorney had no duty to advise him of the consequence of pleading to a
felony as opposed to a gr oss misdemeanor. Moreover, Padilla involved an attorney’s
failure to advise her client about a deporta tion risk, not a failure to advise about the
difference between a felony conviction and a gross-misdemeanor conviction. Padilla is
not pertinent to this case.
Second, Smith argues that the postconvi ction court erred by denying his petition
solely on the ground that Smith failed to satisfy Strickland’s first prong. This argument
also lacks merit. The supreme court has repe atedly held that a c ourt may dispose of an
ineffective-assistance-of-counsel claim if the petitioner fails to satisfy just one prong of the
two-prong Strickland test. See, e.g., Jackson v. State, 817 N.W.2d 717, 722 (Minn. 2012);
Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009).

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In sum, the postconviction court correctly rejected Smith’s ineffective-assistance-
of-counsel claim because Smith presente d his claim based solely on conclusory,
argumentative assertions, withou t factual support. Smith’s petition thus failed to allege
facts that, if proved, would sa tisfy the first prong of the Strickland test for ineffective
assistance of counsel. Consequently, we c onclude that the postconviction court acted
within its discretion when it dismissed Smith’s claim that he received ineffective assistance
of counsel without first holding an evidentiary hearing.
Affirmed.