State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A21-0016

State of Minnesota,
Respondent,

vs.

William Cleveland Alan Boykin,
Appellant.

Filed July 19, 2021
Affirmed
Worke, Judge

Lyon County District Court
File No. 42-CR-18-668

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Rick Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district court erred on remand by concluding that appellant
acquiesced to his trial attorney’s concession of appellant’s guilt. Appellant also challenges
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the district court’s reinstatement of his origin al sentence that was remanded to determine
whether it was supported by severe aggravating factors. We affirm.
FACTS
Appellant William Cleveland Alan Boykin a nd T.D. lived together as a couple until
Boykin became physically abusive. T.D., who was pregnant, and her two children moved
in with her mother, K. D., and obtained an order for pr otection (OFP) prohibiting Boykin
from contacting her.
On June 10, 2018, Boykin entered K.D .’s home through a window and attacked
T.D. Boykin knew that T.D. was pregnant and that she had received a cornea transplant,
yet he punched and kicked her in the stomach and eyes. Boykin yelled that he would “kill
[T.D.] and [the] baby.” K.D. tried to pull Boykin off T.D., and one of T.D.’s children threw
toys at him. T.D. suffered injuries, including the permanent loss of one of her eyes.
Boykin told responding officers that “he ha d to” assault T.D. and he “did what [he]
needed to do,” but “he hoped he didn’t hurt the baby or kill the baby.” Boykin was charged
with attempted first- and second-degree murder of an unborn child, fi rst-degree burglary,
first-degree assault, threats of violence, and violation of an OFP.
At the close of Boykin’s jury trial, his attorney did not specifically address any
charge other than the attempte d-murder offenses in closing argument. Boykin’s attorney
stated that “[o]bviously something happened” that night, but the state failed to prove that
Boykin intended “to murder an unborn child.”
The jury found Boykin guilty of all charge s and returned a special verdict finding
the existence of aggravating factors—the cr ime was committed (1) in a place where T.D.
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had an expectation of privacy, (2) with particular cruelty, and (3) in the presence of a child.
The sentences that the district court imposed included a sentence of 240 months in prison
for first-degree assault, which was an upward durational departure based on the aggravating
factors.
Boykin appealed, ra ising two issues. See State v. Boykin , A19-0670 (Minn. App.
Mar. 16, 2020). First, he argued that his tr ial attorney inappropriately conceded guilt in
closing argument on all elemen ts aside from the intent elem ent of the attempted-murder
charges. We determined that Boykin’s defense at trial was that he did not intend to kill
T.D.’s unborn child, and that in closing ar gument, his trial attorney explained that the
primary issue that the jury needed to resolve was Boykin’s intent. We determined that the
totality of the circumstances showed that Boykin’s attorney impliedly conceded Boykin’s
guilt, but, given the strength of the state’s case, it was objectively reasonable to focus on
Boykin’s intent and to impliedly concede gu ilt on the lesser offenses in the hope of
obtaining an acquittal on the most serious charges. We concluded that, while the
concession was an understandable trial strategy and Boykin did not object, the record failed
to demonstrate that Boykin understood that the concession was being made. We remanded
for fact-finding as to whether Boykin understood that a concession was being made.
Second, Boykin argued that the district court abused its disc retion by imposing a
240-month sentence for the first-degree assault conviction because it constituted a greater-
than-double upward departure from the 86-mont h presumptive sentence and the district
court failed to find that it was supported by severe aggravating factors. See State v. Evans,
311 N.W.2d 481, 483 (Minn. 1981) (stating that “in a case in which an upward departure
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in sentence length is justified, the upper limit will be double th e presumptive sentence
length”). We agreed and reversed Boykin’ s sentence. Thus, we remanded for two
purposes: (1) an evidentiary hearing on the issue of whet her Boykin understood that a
concession was being made, and (2) the application of Evans to the aggravated sentence.
On June 26, 2020, the district court held an evidentiary hearin g. Boykin’s trial
attorney testified that he spoke with Boykin about a “half dozen times” about trial strategy
and that their discussions were “extensive.” Boykin’s trial attorney believed that Boykin
understood that it was a “very tough case to tr y to defend” based on the state’s evidence.
Boykin did not want to testify, and Boykin’s attorney told Boykin that if he did not testify,
he “did not have a defense” on the lesser charge s; his trial attorney was “very blunt” with
Boykin that in this scenario they had a viable defense for only the attempted-murder
charges. Boykin’s trial attorney testified that Boykin’s response was “do what you need to
do,” and he took that to mean that Boykin “understood what [his attorney] was doing.”
Thus, Boykin’s trial attorney felt that he ad equately conveyed to Boykin that he was not
going to challenge the other charges, and he told Boykin that his closing argument “was
going to be about [Boykin’s] intent.” Theref ore, during closing argument, Boykin’s trial
attorney focused on the inte nt element of the attempted-murder charges and did not
comment on the other charges.
Boykin testified that his trial attorney to ld him that the state would have to prove
that Boykin intended to kill the unborn child and that T.D. would testify that he hit her in
the stomach. Boykin told his a ttorney that T.D. made that up and it was a “fake charge.”
Boykin told his attorney to “focus on that charge . . . . just to speak on that charge.” Boykin
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testified, “I wanted [my attorn ey] to focus on the [m]urder charges. . . . I was expecting
him not to bring up the other crimes.”
The district court found that Boykin’s trial attorney and Bo ykin had “extensive”
discussions about trial strategy and decided to focus on Boykin’s lack of intent. Boykin
wanted his attorney to focus on the attempted-murder charges and “not bring up” the other
crimes. The district court found that, as it related to trial strate gy, “Boykin told [his
attorney] words to the effect of ‘You do what you need to do.’” Based on these findings,
the district court concluded that Boykin un derstood that a conce ssion was being made.
Regarding Boykin’s sentence, the district c ourt concluded that the aggravating factors
found by the jury were “severe,” and the original senten ce was reinstated. This appeal
followed.
DECISION
Ineffective assistance of counsel
Boykin claims that his tria l attorney was ineffective fo r conceding his guilt. To
succeed on an ineffective-assistance-of-counsel claim, an appellant must show that (1) “his
attorney’s performance fell be low an objective standard of reasonableness,” and (2) “a
reasonable probability exists that the outcome would have been different, but for counsel’s
errors.” Gail v. State , 732 N.W.2d 243, 248 (Minn. 2007); see also Strickland v.
Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 20 64, 2068 (1984). But when
counsel concedes a defendant’s guilt without consent, “counsel’s performance is deficient
and prejudice is presumed.” State v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010).
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Appellate courts apply a two-step analysis to ineffective-assistance claims based on
an alleged unauthorized concession of guilt. State v. Luby, 904 N.W.2d 453, 457 (Minn.
2017). First, this court reviews the record de novo “to determine whether defense counsel
made a concession of guilt.” Id. And second, if counsel conceded guilt, we must determine
“whether the defendant acquiesced in that concession.” Prtine, 784 N.W.2d at 318.
We previously concluded that Boykin’s attorney impliedly conceded Boykin’s guilt
on all elements except for the intent elements of the attempted-murder charges. Thus, we
will address the second issue—“whether [Boykin] acquiesced in that concession.” See id.
“When, as here, there is no evidence of e xpress consent, [appellate courts] look at
the entire record to determine if the defendant acquiesced in his counsel’s strategy.” Luby,
904 N.W.2d at 459 (quotation omitted). “Acq uiescence may be implied . . . (1) when
defense counsel uses the con cession strategy throughout tria l without objection from the
defendant, or (2) when the concession was an understandable strategy and the defendant
was present, understood a concession was being made, but failed to object.” Id. (quotation
omitted).
Again, we already determin ed that the concession wa s an understandable trial
strategy and Boykin was present and did not object. We must, therefore, look to the record
from the evidentiary hearing and determine whether Boykin understood that a concession
was being made.
Boykin’s attorney testified that he was “blunt” in explaining to Boykin that if
Boykin did not testify, they wo uld not be able to refute the state’s evidence on anything
other than the intent element of the attempted-murder charges. Boykin’s attorney testified
7

that he adequately conveyed to Boykin that he was going to focus on Boykin’s lack of
intent and was not going to challenge the other charges. Boykin’s attorney testified that
Boykin told him to “do what yo u need to do.” While Boykin testified that he did not tell
his attorney to do whatever he needed to do, he did testify that he told his attorney to “focus
on [the attempted-murder] charge . . . . just to speak on that charge.” He testified, “I wanted
[my attorney] to focus on the [m]urder charges. . . . I was expecting him not to bring up the
other crimes.” These comments show that Boykin understood that his attorney was going
to focus on Boykin’s intent related to the attempted-murder charges and would not defend
the other charges in the hope of an acquittal on the most seri ous charges. Based on this
record, we conclude that Boykin understood that the concession was going to be made.
He, therefore, did not receive ineffective assistance of counsel.
Sentence
Boykin argues that the di strict court impermissibly reimposed the original
aggravated sentence. Appellate courts “rev iew decisions to depart from the sentencing
guidelines only for an a buse of discretion.” State v. Barthman , 938 N.W.2d 257, 269
(Minn. 2020) (quotation omitted). “A district court abuses its discretion if its reasons for
departure are inadequate or improper.” Id. “[G]enerally in a case in which an upward
departure in sentence length is justified, the upper limit will be double the presumptive
sentence length.” Evans, 311 N.W.2d at 483 (emphasis omitted).
Here, the jury found that three aggrav ating factors were present during the
commission of the offense: Boykin invade d the victim’s home wherein she had an
expectation of privacy, he treated her with particular cruelty, and he committed the offense
8

in the presence of a child. Based on these findings, the district court imposed a 240-month
prison sentence for the first-degree assault conviction, which was a greater-than-double
departure. On remand, the district court was required to consider if the aggravating factors
were “severe” in order to justify this departure.
A district court may impose a greater-tha n-double departure if there are “severe
aggravating factors.” State v. Stanke , 764 N.W.2d 824, 828 (Minn. 2009). It is a “rare
case” when aggravating factors are so severe as to justify a greater-than-double departure,
and a decision to impose such sentence “mus t be based on our collective, collegial
experience in reviewing a large number of criminal appeals from all the judicial districts.”
State v. Johnson, 450 N.W.2d 134, 135 (Minn. 1990). The inquiry can depend on a variety
of factors, such as the victim’s vulnerability , the permanence of th e victim’s injury, and
the presence of multiple aggravating factors. Dillon v. State, 781 N.W.2d 588, 597 (Minn.
2010).
Here, the jury found that three aggravating factors existed and, on remand, the
district court found that the factors were so se vere as to justify the aggravated sentence.
First, Boykin invaded T.D.’s home wherei n she had an expectation of privacy. See State
v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (sta ting that upward departure is justified
when crime committed in victim’s zone of privacy); see State v. Winchell , 363 N.W.2d
747, 750 (Minn. 1985) (stating that victim’s zone of privacy includes victim’s home).
Second, Boykin treated T.D. with particular cruelty. He punched her eyes when he
knew that she had a cornea transplant, and she suffered the permanent loss of an eye. See
State v. Harris , 407 N.W.2d 456, 462 (M inn. App. 1987) (stati ng that infliction of
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permanent injuries and lifelong disfigurement is severe aggravating factor), review denied
(Minn. July 31, 1987). And he kicked her in the stomach knowing that she was pregnant.
See State v. Wickstrom, 405 N.W.2d 1, 6 (Minn. App. 1987 ) (stating that pregnant victim
is “uniquely compelling” aggravating factor), review denied (Minn. June 30, 1987).
Finally, T.D.’s children were present during the offense, and one child attempted to
defend T.D. See Harris , 407 N.W.2d at 462 (stating th at presence of children during
offense was severe aggravating factor). Based on this record, the district court properly
determined that the aggravating factors were severe and justified the greater-than-double
durational departure.
Affirmed.