Scott Arlen Lange, 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This opinion is nonprecedential except as provided by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
A20-0991

Scott Arlen Lange, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 19, 2021
Affirmed
Connolly, Judge

Isanti County District Court
File No. 30-CR-17-708

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Jeffrey R. Edblad, Isanti County Att orney, Joel B. Whitlock, Assistant County Attorney,
Cambridge, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges the denial of his post conviction petition, arguing that he was
denied eff ective assistance of counsel. Because appellant failed to prove that his trial

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counsel was ineffective, he could not show that he was damaged by any deficiencies in his
postconviction counsel’s performance, and because there was no abuse of discretion in the
district court’s denial of appellant’s postconviction petition, we affirm.
FACTS
Appellant Scott Lange, while represented by counsel D.M. and B.N., pleaded guilty
to a variety of offenses committed in 2016 and 2017 and was sentenced to 72 months in
prison. Acting pro se, he filed a postconviction petition in which he claimed ineffective
assistance of trial counsel, abuses of the district court’s discretion, and misconduct by state
agents.1
Appellant’s postconviction counsel, M.S., represented him at the February 18, 2020,
evidentiary hearing on his ineffective-assistance claim. M.S. clarified the claim to allege
that D.M. and B.N.: (1) did not discuss defenses such as entrapment; (2) acted improperly
in having appellant’s wife persuade him to plead g uilty; and (3) did not properly explain
the plea agreement to appellant. D.M., B.N., appellant, and his wife testified.
At the end of the hearing, M.S. agreed to submit a brief on March 3 1, 2020. On
March 31, 2020, M.S. requested and was granted an extension for two more weeks, until
April 14, 2020; on that date, he asked for and was granted another extension for two more
days, until April 16, 2020. No brief was ever submitted. Respondent State of Minnesota
submitted a brief on May 1, 2020, addressing only whether D.M. and B.N. had properly
explained the plea agreement to appellant.

1 The district court inferred these claims from appellant’s petition.

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The district court denied appellant’s petition for postconviction relief, and appellant
challenges the denial, arguing that M.S. provided ineffective assistance.
DECISION
“In reviewing a postconviction proceeding, we determine whether there is sufficient
evidence to sustain the postcon viction court’s findings, and a postconviction court’s
decision will not be disturbed absent an abuse of discretion. We review a postconviction
court’s determinations of legal issues de novo.” Schleicher v. State, 718 N.W.2d 440, 444-
45 (Minn. 2006) (quotations and citations omitted). “To show that [postconviction]
counsel’s performance was deficient, [a petitioner] must first prove ineffective assistance
of trial counsel.” Id. at 449 (noting that “[postconviction ] counsel’s failure to raise
meritless claims does not constitute deficient performance”).
When an ineffective -assistance-of-counsel claim is properly raised in a direct
appeal, “we examine the claim under the two -prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984).” State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn.
App. 2017). The two prongs of the Strickland test are (1) appellant’s post conviction
counsel’s representation “fell below an objective stand ard of reasonableness,” and
(2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Lussier v. State , 853 N.W.2d 149, 154
(Minn. 2014). If a claim fails to satisfy one of the Strickland requirements, we need not
consider the other requirement. State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).

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The postconviction court made two findings that support its conclusion that the
performance of B.N. and D.M. did not fall below an objective standard of reasonableness.
First, it addressed their dealings with appellant.
At the evidentiar y hearing, appellant and his spous e offered
testimony that explained how [he] was misled and induced into
accepting the global resolution [i.e., the guilty plea] based upon
[his] belief that he could only receive a certain amount of
prison time. However, the Court finds the testimony of
[appellant] and his spouse to be self -serving and not credible.
The Court finds greater credibility within the testimony offered
by [appellant’s] trial counsel [ i.e., D.M. and B.N.] . The
testimony by [appellant’s] trial counsel shows that they met the
objective standard of reasonableness, because they exercised
the customary skills and diligence that a reasonably competent
attorney would perform under similar circumstances. Both
attorneys testified they presented [appellant] with various
options for resolution during the plea negotiation process, went
over the various consequences that [he] could face, and even
allowed [him] to consult with his wife before entering his final
plea of guilty.

The transcript of the evidentiary hearings support s the findings that the testimony
of appellant and his wife was not credible and the testimony of the attorneys was credible.
Appellant’s wife was questioned by the state’s attorney:
Q: Did you yourself have numerous phone numbers
assigned to you?
. . . .
A: No.
Q: You did not have various – numerous numbers assigned
to you for different phones?
A: I had one phone number. I had one phone that I used.
Q: And you are testifying to that despite the fact that your
husband [i.e., appellant] plead[ed] guilty to violati ng at least
five Domestic Abuse No Contact Orders where he contacted
you at numerous different numbers?
A: The attorneys told us to plead guilty.
Q: They actually didn’t tell you to plead guilty, correct?

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A: No. Well, I —I think as my husband [appellant] and I
are together when they asked me to tell my husband to plead
guilty I think that’s – I don’t know.

Appellant was questioned about his attorneys.
Q: After the sentencing, did you talk with [B.N.] about the
results of your case?
A: Both [ B.N. and D.M.] acted shocked that I got the
sentence that I did. . . . [B.N.] in front of [D.M.] said, you need
to file an appeal on this, and you can use me for ineffective
assistance of counsel because I dropped the ball, I didn’t. . .
represent you like I should have. You got an unfair . . .
THE COURT: Why isn’t this hearsay . . . ? . . . I mean, h e’s
literally telling me that [B .N.] admitted to him that he was
ineffective and you’re offering that, I assume, for the trut h of
the matter asserted, are you not?
. . . .
APPELLANT’S ATTORNEY: . . . .[W]e’re not trying to
prove the truth of whether or not [B.N.] was ineffective, in fact
–
THE COURT: We’re literally here on the issue of whether or
not [D.N.] was effective . . . I’m concerned that we’re running
way outside the rules of evidence here . . . .

Appellant’s attorneys’ testimony contradicted this testimony. B.N. was questioned:

Q: Did you at any point express to [appellant] that your
representation was in any way inadequate?
A: No.
Q: So you did not ask or suggest to [appellant] that he file
post-conviction relief based on ineffective assistance . . . of
counsel?
A: I’ve done [that] one time [when] I actually felt I was
ineffective with a different client. I have never said that to
another client, no. It definitely was not ineffective in this case.
It was very effective.

D.M. was also questioned:

Q: Did you or [B.N.] advise [appellant] to file a
postconviction petition?

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A: No. We did discuss that if he wished he could always
appeal his sentence and that we would get him information to
contact the state public defender’s office for that purpose if he
wanted to do that.
Q: Did you or [B.N.] discuss with [appellant] the
possibility that that plea could – or that petition could be based
on ineffective assistance of counsel?
A: I don’t believe we ever discussed ineffective assistance
of counsel.
Q: . . . Did [B.N.] at any point while you were involved in
conversations with him and [appellant] express that he had not
done a good job for [appe llant] or in any other way not
represented [appellant] as best as he possibly could?
A: [B.N.] and I never discussed him doing other than a
good job for [appellant].
Q: . . . [B]ut in conversatio ns between you, [appellant and
B.N.], did [B.N.] ever express that he had not done a good job
for [appellant] or otherwise represent[] that sentiment?
A: No.

Thus, the findings regarding the credibility of appellant, his wife, and the attorneys are
supported by the transcript.
The district court also addressed a ppellant’s claim that his attorneys had not
explained the guilty plea to him.
At the November 6, 2017, plea hearing, [appellant] stated on
the record that he understood the possibilities that could flow
from his guilty plea. Now approximately two years later, [he]
has filed a post-conviction petition which alleges the contrary.
[A p]etitioner has the burden to provide facts or evidence
which demonstrate, by a fair preponderance of the evidence,
that he is entitled to post -conviction relief. The se lf-serving
testimony offered by [appellant] and his spouse fail[s] to show,
by a preponderance of the evidence, how hi s trial counsel’s
conduct fell b elow an objective standard of reasonableness.
Thus, [his] claim fails.

The transcript of the November 6, 2017, plea hearing supports this conclusion. Appellant
answered, “Yes” when the district court asked him: (1) if he understood that the agreement

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covered all ten of appellant’s files in Isanti County, that there was a cap of 96 months on
his commitment to the Commissioner of Corrections, and that he was free to argue for a
departure; (2) if he had enough time to talk to his attorneys about the charges; (3) if it was
true that the district court had signed an order, at appellant’s request, allowing appellant’s
wife to have a no-contact visit with him; and (4) if appellant desired to waive his rights and
enter a plea of guilty.
Thus, th e transcripts provide sufficient evidence to sustain the postconviction
court’s conclusion that D.M. and B.N.’s representation of appellant did not fal l below an
objective standard of reasonableness, and the first Strickland prong is not met. See Lussier,
853 N.W.2d at 154. Because appellant’s ineffective-assistance claim did not meet the first
Strickland prong, the district court did not abuse its discretion by not considering the
second Strickland prong. See Mosley, 895 N.W.2d at 591.
Absent proof of the ineffecti ve assistance of trial counsel, appellant cannot show
ineffective assistance of postconviction counsel: since the ineffective -assistance-of-trial-
counsel claim lacked merit, postconviction counsel’s failure to argue it was not ineffective
assistance. “[Postconviction] counsel’s failure to raise meritless claims does not constitute
deficient performance.” Schleicher, 718 N.W.2d at 449.
While it is undisputed that the failure of M.S. to file a brief was misconduct, see,
e.g., In re Disciplinary Action Against Pierce, 706 N.W.2d 749, 755 (Minn. 2005),
appellant has not shown that he was prejudiced by it. It has been shown that his ineffective-
assistance claim concerning B.N. and D.M. would have failed; therefore, M.S.’s failure to
file a brief on that claim did not damage appellant. The postconviction court also concluded

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that appellant had not established either the alleged district -court abuses of discretion or
the alleged misconduct by state agents by a preponderance of the evide nce, so evidentiary
hearings would not have been appropriate on those claims. “[A] postconviction evidentiary
hearing is not required when the petitioner alleges facts that, if true, are legally insufficient
to grant the requested relief.” Rhodes v. Stat e, 875 N.W.2d 779, 786 (Minn. 2016)
(citations omitted).
The postconviction court did not abuse its discretion, and there is no basis for
disturbing its decision. See Schleicher, 718 N.W.2d at 444-45.
Affirmed.