Deontray Vershon Tate, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A20-0869

Deontray Vershon Tate, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 22, 2021
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-13-22120

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
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 Bjorkman, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges the denial of his petition for postconviction relief from two
assault convictions following an evidentiary hearing. The petition is premised on his

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appellate counsel’s failure to argue that trial c ounsel was ineffective because he did not
object to the lack of timely written notice of the state’s intent to seek an aggravated
sentence. Because the district court did not abuse its discretion by denying relief, we
affirm.
FACTS
In June 2013, appellant Deontray Vershon Tate shot a man who was standing
outside a vehicle and a four -year-old child who was in the back seat of the vehicle with
another child. Tate was charged with first -degree assault against the child and second -
degree assault against the man. 1 He retained trial counsel in November, and an omnibus
hearing occurred on D ecember 18. After plea negotiations failed, the case proceeded to
trial.
On March 18, 2014, just before jury selection, the prosecutor moved to amend the
second-degree assault charge and to seek an aggravated sentence based on the child
victim’s particular vulnerability and the presence of children. Trial counsel did not object
to the timeliness of the state’s notice, but the district court raised the i ssue.2 The court
expressed its recollection that the prosecutor “verbally” told the defense about the intent to
seek an aggravated sentence and asked whether that communication occurred during “the
Omnibus hearing.” The prosecutor answered affirmatively, adding that the parties had

1 Tate was also charged with aiding and abetting a third assault based on another shooter’s
actions; he was acquitted on that charge.

2 When the state intends to seek an aggravated sentence, the prosecutor must give “written
notice” stating the grounds and factual basis supporting the aggravated sentence “at least 7
days before the Omnibus Hearing.” Minn. R. Crim. P. 7.03.

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been trying to resolve the matter until mid -February, when Tate rejected the state’s
proposed plea agreement. The district court asked trial counsel whether he agreed that the
prosecutor “at least notif[ied] [him] verbally back in probably December that she was going
to be filing amendments.” Trial counsel responded:
I’m not disagreeing with the fact that she had mentioned she
was going to file the amendments and the upward departure. I
will note we didn’t get a formal written motion, so on and so
forth, but it was mentioned I believe orally and probably in an
email or so. So we have been on notice of that, Judge.

The court instructed the parties to review the rules of procedure and ensure they agreed
“the proper procedures are being followed.”
Later that day, the district court revisited the issue. The court stated that trial counsel
“concede[d] that . . . the State gave adequate notice of [the sentencing departure],” and trial
counsel responded: “[W] e concede tha t we didn’t get the formal notice, but we were
certainly put on notice that that was something that they were intending to do if it wasn’t
resolved.” The court asked whether trial counsel was claiming prejudice “by the way
notice was given,” and he said no. The court then noted that the state was required to
provide notice of the grounds for departure and a summary of the factual basis, which in
this case is inseparable from the facts for trial, “so there’s not really anything for the State
to have to giv e [the defense] in addition to that as far as a summary of what the grounds
would be for the aggravation.”
The jury found Tate guilty. In response to special-verdict questions, the jury found
that (1) the child victim was “four years old at the time of the offense,” (2) the child victim
was “in the back seat of a vehicle with closed doors at the time of the shooting,” and

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(3) Tate shot the man “in the presence of children.” The district court sentenced Tate to
206 months’ imprisonment for the assault agai nst the child, a double upward durational
departure based on the child’s particular vulnerability. For the assault against the man, the
court imposed a consecutive 103-month sentence for a total of 309 months’ imprisonment.
Tate appealed. At his request, this court stayed the appeal to allow postconviction
proceedings. Through appellate counsel, h e asserted two postconviction claims: (1) that
he was denied his right to present a complete defense because the district court excluded
alternative-perpetrator evidence, and (2) he received ineffective assistance of counsel
because trial counsel did not introduce the evidence properly. The district court denied
relief. In the reinstated appeal, appellate counsel reiterated Tate’s postconviction claims
and also argued that: (1) the evidence was insufficient to prove that the victims suffered
“great bodily harm,” (2) the district court plainly erred by permitting a doctor to testify that
a gunshot wound is a “serious injury,” ( 3) the prosecutor committed miscondu ct during
closing argument, and (4 ) the district court abused its discretion by imposing an upward
sentencing departure and consecutive sentences . We affirmed Tate’s convictions and
sentences. State v. Tate, No. A14-1339 (Minn. App. Mar. 14, 2016), review denied (Minn.
May 31, 2016).
Tate thereafter retained new counsel and filed a second postconviction petition.
Noting that Minn. R. Crim. P. 7.03 requires a prosecutor to give written notice before the
omnibus hearing if the state intends to seek an aggravated sentence, Tate asserted that:
(1) appellate counsel was ineffective because she failed to raise any claims related to trial
counsel’s failure to object to the “lack of proper notice,” (2) trial counsel was ineffective

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because he failed to object, and (3) he was denied due process by the state’s failure to give
proper notice. The district court denied relief without an evidentiary hearing, reasoning
that the claims are procedurally barred based on the prior postconviction proceeding and
direct appeal, and lack merit because trial counsel had actual notice of the state’s intent to
seek an upward departure and Tate was not prejudiced.
Tate appealed . We agreed that Tate’s trial claims are procedurally barred but
concluded his claim of ineffective as sistance of appellate counsel is not similarly barred
unless Tate knew of the basis for the claim at the time of his direct appeal . Tate v. State,
No. A18 -0909, 2019 WL 1007771 , at * 3-4 (Minn. App. Mar. 4, 2019) , review denied
(Minn. May 28, 2019). We also concluded that the district court abused its discretion by
summarily rejecting Tate’s ineffective-assistance-of-appellate-counsel claim on the merits.
We noted that a petitioner is entitled to an evidentiary hearing unless he fails to allege facts
that would, if proven, sustain the claim. Id. at *3. Taking as true Tate’s allegations that
the state “could not” demonstrate good cause as required under Minn. R. Crim. P. 7.03 and
the district court “would have to sustain an objection,” we reasoned that Tate stated a viable
claim of ineffective assistance of trial counsel and we could not say “with any certainty”
that appellate counsel reasonably decline d to assert the claim. Id. at *4-5. Accordingly,
we reversed and remanded for an evidentiary hearing.
At the hearing, Tate testified that he only learned of the possibility of an aggravated
sentence on the first day of trial. And he told appellate counsel as much in a letter he sent
while his direct appeal was pending. The letter stated that he wanted a ppellate counsel to
pursue an ineffective-assistance claim based on trial counsel’s failure to advise him of his

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sentencing exposure earlier . Tate also testified that he was unaware until after his direct
appeal that the state was required to provide written notice regarding an aggravated
sentence.
In her testimony, appellate counsel agreed that she spoke with Tate about the
possibility of asserting an ineffective-assistance claim related to his sentence. She also
indicated that she was “concerned” about trial counsel’s failure to object to the lack of
“formal notice” of the aggravated sentence and discussed it with her supervising attorney.
But she stated that she “ did not have any reason to believe that the outcome would have
been different” if counsel had objected because “the prosecutor had given noti ce of the
intent to depart .” She explained that she was familiar with the requirements of an
ineffective-assistance claim and knew she would have to demonstrate that trial counsel’s
failure to object caused Tate prejudice. No prejudice was apparent in this case, she
believed, because “[t]here’s an ability for the Court to find that —if there was good cause
shown—that that strict written standard doesn’t need to be followed. And I felt that on the
record that I had, I didn’t have enough to show that strict adherence [with rule 7.03] would
have been required.”
The district court denied Tate’s petition, reasoning that appellate counsel’s
performance was neither deficient nor prejudicial becaus e her conclusion that a claim of
ineffective assistance of trial counsel would have failed on the prejudice prong was
reasonable. The court also noted that counsel’s assessment was consistent with its
experience that “good cause and lack of unfair prejudi ce to the defendant are routinely

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found as long as the State has facilitated the function—notice to a defendant of the intent
to seek an aggravated sentence—of [rule 7.03].” Tate appeals.
DECISION
We review the denial of postconviction relief for an abuse of discretion. Pearson v.
State, 891 N.W.2d 590, 596 (Minn. 2017) . We review legal issues de novo and factual
findings for clear error. Zornes v. State, 880 N.W.2d 363, 368 (Minn. 2016).
We analyze claims of ineffective assistance of counsel under the two -prong test
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Nissalke v.
State, 861 N.W.2d 88, 9 3-94 (Minn. 2015) . To prevail, a defendant must show that
“counsel’s performance was deficient” and “the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 . On the first prong, counsel’s
representation is deficient when it falls below an objective standard of
reasonableness. Id. at 688, 104 S. Ct. at 2064 . On the second prong, deficient
representation is prejudicial if “there is a reasonable pr obability 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 failure on either prong may be dispositive. Nissalke, 861 N.W.2d at
94.
We “give trial counsel wide latitude to determine the best strategy for the client. ”
State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013) . We afford appellate counsel similar
latitude. Counsel is not obligated “to include all possible claims on direct appeal, but rather
[is] permitted to argue only the most meritorious claims.” Nunn v. State, 753 N.W.2d 657,
661 (Minn. 2008) (alteration in original) (quotation omitted). And w e presume that

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counsel’s “judgment about which issues to raise falls within the wide range of reasonable
professional assistance.” Bobo v. State , 820 N.W.2d 511, 516 (Minn. 2012) (quotation
omitted). Counsel “does not act unreasonably” by declining to assert claims that she “could
have legitimately concluded would not prevail.” Wright v. State , 765 N.W.2d 85, 91
(Minn. 2009).
Tate argues the district court abused its discretion by determining that appellate
counsel acted reasonably in concluding that an ineffective-assistance-of-trial-counsel claim
would have failed on the prejudice prong. To show that trial counsel’s failure to object
caused Tate prejudice, appellate counsel would have needed to show that there was a
reasonable likelihood an objection would have resulted in the state being precluded from
seeking an aggravated sentence. She concluded that she would have been unable to do so.
We are persuaded that appellate counsel’s conclusion was reasonable based on the
circumstances of this case and applicable law.
The prosecutor did not give written notice of the state’s intent to seek an aggravated
sentence at least seven days before the omnibus hearing, as rule 7.03 requires. In such a
case, the rule provides: “Notice may be given later if permitted by the court on good cause
and on conditions that will not unfairly prejudice the defendant.” Minn. R. Crim. P. 7.03.
In other words, an objection by trial counsel would not have required the district court to
preclude the state from seeking an aggravated sente nce. Rather, the district court would
have assess ed whether there was good cause to permit the state to pursue the sentence
despite the notice failure . T wo circumstances suggest the district court would have
permitted the deficient notice. First, the record supports the district court’s finding that the

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prosecutor gave Tate oral notice four months before trial that the state intended to seek an
aggravated sentence if plea negotiations were unsuccessful. Second, Tate required neither
additional time to prepare a defense nor a separate sentencing trial because the facts the
state alleged in support of an aggravated sentence—the age of the child victim, his
confinement in the back seat, and the presence of another child—were intertwined with the
facts of the charged offenses. And no binding caselaw precludes a finding of good cause
under these circumstances.
At the time of Tate’s direct appeal, neither our supreme court nor this court had
addressed rule 7.03’s good-cause provision.3 But the supreme court’s recent interpretation
of the rule in State v. Barthman , 938 N.W.2d 257, 268 (Minn. 2020), supports appellate
counsel’s assessment that district courts would construe the rule in a manner that favors
function over form. In Barthman, the state gave timely written notice of its intent to seek
an aggravated sentence and identified the departure grounds, but did not include the
requisite factual summary. 938 N.W.2d at 268. As here, Barthman did not object at trial,
but he argued that the district cour t plainly erred by permitting the state to seek an

3 We have done so since but not in a precedential opinion. And nothing in our
nonprecedential opinions addressing good cause persuade s us that appellate counsel
unreasonably assessed the likelihood of successfully demonstrating prejudice from
counsel’s fail ure to object and demand a ruling on good cause . See State v. Huyber ,
No. A19-0760, 2020 WL 2312505 , at *3-4 (Minn. App. May 11, 2020) (concluding that
“good cause” requires a “legally sufficient reason,” which was present when defendant’s
early guilty plea and other factors prevented prosecutor from giving timely notice), review
denied (Minn. July 23, 2020); State v. Harrison, No. A17-0157, 2017 WL 6567654, at *6
(Minn. App. Dec . 26, 2017) (upholding implicit finding of good cause when state gave
notice s hortly after omnibus hearing and defendant was familiar with facts underlying
aggravated sentence), review denied (Minn. Mar. 20, 2018).

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aggravated sentence. Id. The supreme court concluded that the notice did not comply with
rule 7.03. Id. But it also reasoned that the lack of compliance did not affect Barthman’s
substantial rights because he was aware of the underlying facts and did not claim that, given
proper notice, he would have taken a different tack in contesting the state’s sentencing
allegations. Id. at 268-69. The supreme court concluded, “Simply put, Barthman has not
shown he was prejudiced by the lack of a factual summary in the notice of aggravating
factors that he was given.” Id. at 269.
Tate’s appellate counsel similarly determined , after deliberation and consultation
with her supervisor, that there was no reasonable basis to conclude that the district court
would have denied the state’s request to seek an aggravated sentence if tr ial counsel had
objected to the state’s deficient notice. And for that reason she declined to assert a cla im
that trial counsel was ineffective for failing to object, instead pursuing numerous other
claims she determined to be more meritorious . In short, she did not simply overlook a
potential claim but carefully examined and prioritized among potential claim s, based on
the law and the record, as we expect a competent appellate attorney to do. See Nunn, 753
N.W.2d at 661 (stating that an appellate attorney is “ permitted to argue o nly the most
meritorious claims” (quotation omitted)). We discern nothing objectively unreasonable in
her professional judgment that Tate would not be best served by advancing the ineffective-
assistance-of-trial counsel claim that Tate now urges . Accordingly, we conclude that the
district court did not abuse its discretion by rejecting Tate’s claim of ineffective assistance
of appellate counsel.
Affirmed.