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This opinion is nonprecedential except as provided by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
A21-0107

State of Minnesota,
Respondent,

vs.

Wade Allen Sorensen,
Appellant.

Filed September 27, 2021
Affirmed
Slieter, Judge

St. Louis County District Court
File No. 69DU-CR-18-753

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

Mark S. Rubin, St. Louis County Attorney, Victoria Wanta, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Worke, Presidi ng Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal following a remand to de termine whether he acquiesced to his
counsel’s concession of guilt, appellant argues that the district court’s factual findings that
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appellant acquiesced are clearly erroneous. Th e district court’s factual findings that the
concession of guilt was 1) an understandable strategy, 2) made in the appellant’s presence,
3) with appellant’s understanding, and 4) made without appellant’s objection, are supported
by the record and we therefore affirm.
FACTS
Respondent the State of Minnesota charge d appellant Wade Allen Sorenson with
aiding and abetting first-degree murder, aiding and abetting th ird-degree assault, aiding
and abetting kidnapping, and aiding and ab etting attempted second-degree murder
following a series of events in which appellant and several others kidnapped, beat, and
attempted to kill the victim, R.B. State v. Sorensen, No. A19-1028, 2020 WL 3957231, at
*1 (Minn. App. Jul. 13, 2020).
The case proceeded to a five-day jury trial during which appellant was represented
by two attorneys acting as co-counsel. On e attorney primarily handled the witness
questioning during trial while the other ha ndled closing argument. During closing
argument, appellant’s trial counsel told the ju ry in relation to the third-degree assault
charge, “I’m submitting to you, when you get down to the end, when you’ve talked about
the evidence . . . you should find [appellant] guilty of aiding and abetting third-degree
assault. There’s—there’s no controversy to that evidence. We’re not here asking you that
you should determine that [appellant] did nothing wrong.” Trial counsel then directed the
jury to mark “guilty” on the assault verdict form, as “[ appellant] is guilty of aiding and
abetting third degree assault against [victim].” The jury found appellant guilty of all four
counts. Id. at *4.
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Appellant directly appealed his judgment of conviction, arguing in part that he was
deprived of effective assistance of counsel because his counsel conceded guilt without
consent. Id. at *10. We remanded “for the district court to hold an evidentiary hearing and
make a finding on whether appellant acquies ced in the concession [to the charge] and,
depending [on] that finding, to order the a ppropriate remedy (namely, sustaining the
conviction for third-degree assault if appella nt acquiesced or vacating the conviction if
appellant did not acquiesce).” Id. at *12.
Following an evidentiary h earing in which the district court heard testimony from
appellant’s trial counsel, appellant’s fiancée, and appellant, the district court found that
appellant had acquiesced to his counsel’s c oncession of guilt of th ird-degree assault and
denied a new trial on that charge. This appeal follows.
DECISION
Appellate courts apply a “two-step analysis” in reviewing an alleged unauthorized
concession of guilt. See State v. Luby , 904 N.W.2d 453, 457 (Minn. 2017). Step one
requires “review [of] the record de novo to determine whet her defense counsel made a
concession of guilt.” Id. If such a concession was made, step two directs that “the
defendant is entitled to a new trial unless he ‘acquiesced in that concession.’” Id. (quoting
Prtine, 784 N.W.2d at 318). Because appellant’s counsel did concede appellant’s guilt to
third-degree assault during closing argument, w e n e e d o n l y c o n s i d e r s t e p t w o . W h e n
defense counsel concedes a defendant’s guilt without consent, “counsel’s performance is
deficient and prejudice is presumed,” as “[t]he decision to concede guilt is the defendant’s
decision alone to make.” State v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010).
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Acquiescence may be express or implied. Luby, 904 N.W.2d at 457. Because the
record reflects conflicting testimony as to wh ether appellant expressly agreed to counsel
conceding his guilt, we must “look at the en tire record to determine if the [appellant]
acquiesced in his counsel’s strategy.” Id. at 458 (quotation omitted).
“Acquiescence may be implied . . . (1) when defense counsel uses the concession
strategy throughout trial without objection from the defendant, or (2) when the concession
was an ‘understandable’ strategy and the defe ndant was present, understood a concession
was being made, but failed to object.” Id. (quoting State v. Jorgensen, 660 N.W.2d 127,
132-33 (Minn. 2003) (emphasis added)). The district court correctly found and the parties
do not dispute, based on the trial record, that “the first Luby circumstance does not apply”
because it would be “difficult to conclude that [defendant] somehow acquiesced in a
strategy that manifested itself only at the end of the trial.” Consequently, we address only
the second Luby circumstance.
The second Luby circumstance demonstrating acquiescence requires that “the
concession was an understandable strategy a nd the defendant was pr esent, understood a
concession was being made , but failed to object.” Luby, 904 N.W.2d at 457 (quotation
omitted). The district court made several detailed findings, each supported by the record,
that the concession was a “reasonable” legal strategy, that appellant was present at the time
the concession was made, understood the concession was being made, and failed to object.
With regard to legal strategy and being present at the time of concession, the district
court made the following findings:
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 “Conceding a lesser charge to gain credibility with the
jury in the hopes of receiving a not-guilty on other charges is a
reasonable trial strategy. Here , [appellant] was on trial for
[three other charges] besides the third degree assault, all of
which carry heavier sentences than third degree assault”;

 “[Counsel] ignor[ed] the assa ult [charge] to a large
extent” during trial and instea d “challenged the more serious
charges”;

 “[Counsel] chose to reserve an opening statement to
prevent stating anything [appellant] may not have said should
he have chosen to testify”;

 “The lack of challenge to the assault charge shows
counsel’s belief that they woul d concede guilt on that charge
to garner credibility with the jury”; and

 “Conceding to a lesser charge is an understandable and
objectively reasonable trial strategy given the strong evidence
presented by the State. [App ellant] was present during the
whole trial, most importantly during closings. He understood
his guilt on the assault charge was being conceded and did not
object, instead only bringing the claim on appeal.”

With regard to appellant understanding the concession, the district court found that
“[appellant’s counsel] continually reminded [appellant] of the strength of the State’s case,
which included testimony from experts, the vic tim, and at least one accomplice; forensic
evidence, including a sweatshirt with both Defendant’s and the victim’s blood present
when tested; 911 calls; a nd accompanying documents and photographs” and that the
“strength of the State’s case is a factor in determining whether concession to a lesser charge
is a reasonable trial strategy.” The district court’s findings are supported by the record.
Appellant’s counsel testified that he had discussed concession with appellant the morning
of closing argument and that appellant had at that time “agreed” to the concession. Though
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appellant disputed this account in his testimony during the evidentiary hearing, the district
court recognized the “lack of credibility” of appellant’s testimony. As an appellate court,
we defer to the factfinder’s determinations of credibility. See State v. Moore, 438 N.W.2d
101, 107-08 (Minn. 1989). In sum, the distri ct court’s findings that appellant understood
the concession are supported by the record and not erroneous.
Finally, regarding appellant’s failure to ob ject to his co-counsel’s concession of
guilt during the closing ar gument, the district court found that appellant “understood his
guilt on the assault charge was being conceded and did not object, instead only bringing
the claim on appeal.” The district court found that appellant “had his second attorney with
him and could have spoken to him to object” at the time of concession, or “could have
waited until [his counsel] finished speaking and then objected himself so as not to interrupt
the flow. An objection to a concession is a circumstance which pe rmits a defendant to
speak without an attorney.” These findings support the district court’s conclusion that
appellant had failed to object to the concession.
The district court summarized its findings by stating that the “strength of the State’s
case, the lack of challenge to the assault charge during the course of trial, the frequent and
lengthy meetings with counsel, [appellant’s] lack of credibility, the lack of objection, and
[appellant’s] behavior show [appellant] impliedly acquiesced.”
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In sum, the district court’s findings regarding the second Luby circumstance support
its conclusion that appellant acquiesced to the concession of guilt. Th e district court did
not err in its findings and we affirm.1
Affirmed.

1 Appellant also argues that a new trial is warranted because he “could not reasonably have
been expected to have an awareness of collateral consequences . . . that could attach to the
concession, and which if known could prompt an objection to the concession.” This
argument, however, conflates th e law related to pleading guilty as set forth in cases like
State v. Trott, 338 N.W.2d 248, 251 (M inn. 1983) (requiring that a plea be “accurate,
voluntary and intelligent”), with concession of guilt during tr ial. Other than potential
immigration consequences, no scenario exists requiring an attorney to discuss collateral
consequences of guilt with a client. See, e.g., Kaiser v. State, 641 N.W.2d 900, 903-04,
907 (Minn. 2002) (stating defendant must be informed of direct consequences but not
collateral consequences).