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This opinion is nonprecedential except as provided by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
A21-0256

State of Minnesota,
Respondent,

vs.

Darryl Donail Walker, Sr.,
Appellant.

Filed January 31, 2022
Affirmed
Gaïtas, Judge

Polk County District Court
File No. 60-CR-19-1927

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Fi rst Assistant Co unty Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Slieter, Pres iding Judge; Smith, Tr acy M., Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Darryl Donail Walker, Sr., cha llenges his conviction and sentence for
first-degree sale of a controlled substance, arguing that his guilty plea is invalid, he
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received ineffective assistance of trial counsel, and the prosecutor committed misconduct
during sentencing. We affirm.
FACTS
In 2019, respondent State of Minnesota charged Walker with first-degree sale of
methamphetamine, first-degree possession of methamphetamine, and failure to affix a tax
stamp. See Minn. Stat. §§ 152.021, subds. 1(1), 2(a)(1), 297D.09, subd. 1a (2018). After
numerous pretrial proceedings —including two competency evaluations of Walker, the
second of which found Walker to be competent—the parties reached a plea agreement.
Walker agreed to plead guilty to the sale offense. In exchange, the state agreed to dismiss
the additional charges and to recommend a sentence of no more than 240 months’
imprisonment.
The agreement was memorialized at a plea hearing held in September 2020. After
acknowledging his guilt of first-degree sale of methamphetamine, Walker provided a
factual basis for his plea, discussing the unde rlying facts with both his attorney and the
prosecutor. The prosecutor asked Walker a se ries of questions regarding where he had
gotten the methamphetamine and what he had in tended to do with it. Walker explained
that an acquaintance, S.B., had given him a number for his “uncle” Nate, and suggested
that Walker contact Nate. Unbeknownst to Walker, Nate was an undercover officer with
the Crookston police department. Walker then de livered the “stuff” to Nate in Erskine at
the direction of S.B. and another acquaintance, V.N. The prosecutor asked Walker whether
the “stuff” that he was supposed to deliver to Nate was methamphetamine, and Walker
agreed that it was. Walker ultimately admitted that he had received three ounces of
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methamphetamine in a bag from V.N. and that he was supposed to drop it off at the Win-
E-Mac Travel Center in Erskine.
During the factual-basis discussion, th ere was some confusion about whether
Walker had intended to “se ll” the methamphetamine he wa s delivering. The prosecutor
asked, “[T]he agreement was that you we re supposed to drop off two ounces of
methamphetamine to Nate and r eceive $1,800 in return, does that sound right?” Walker
answered, “That’s not right, sir. . . . I was s upposed to drop it off, but I wasn’t supposed
to see no money.” The prosecutor then further questioned Walker about his intent:
What I’m getting at is while you may say you were doing a
favor for [V.N.] or [S.B.], the reality is you were in possession
of approximately three ounces of methamphetamine with the
intent to deliver it to another person, whether you were going
to get paid for it or not, correct ? . . . And, in the State of
Minnesota, if you possess meth amphetamine with intent to
give it to another person, to se ll it, deliver it, exchange it,
distribute it, whatever, whether or not you’re going to get
money, you’re guilty of possession with intent to sell, do you
understand that?

Walker answered both questions affirmatively.
Walker also made inconsistent statements regarding the nature of the substance that
he received from V.N. He initially stated that he “didn’t even think it was real because
someone played a game on [him] in St. Cloud [and] gave [him] some . . . SMG stuff and
instead it was methamphetamine. ” But he later admitted that he knew that what he was
“supposed to be delivering was methamphetamine.”
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Finally, the prosecutor confirmed Walker’s understanding of hi s trial rights, the
sentence he faced, and the plea agreement. The district court accepted Walker’s guilty
plea.
Before sentencing, the prosecutor subm itted a memorandum asserting that Walker
was a “dangerous offender” under Minnesota Statutes section 609.1095, subdivision 2
(2018), and seeking an upward durational departure from the sentencing guidelines on this
basis. Walker’s attorney also submitted a sentencing memorandum, which requested the
presumptive sentence of 105 months.
At sentencing, the district court determined that Walker is a “dangerous offender”
who is “a danger to public safety” due to his hi story of violent crime. The district court
sentenced Walker to 180 months in prison.
Walker appeals.
DECISION
I. Walker’s guilty plea is constitutionally valid.
Walker first argues that his guilty plea is constitutionally deficient. To satisfy
constitutional requirements, a guilty plea must be intelligent, accurate, and voluntary.
Dikken v. State, 896 N.W.2d 873, 876 (Minn. 2017) (quotation omitted). A defendant bears
the burden of showing that a guilty plea does not comport with these requirements. State
v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
Walker did not challenge the constitutionality of his guilty plea in the district court;
he raises this claim for the first time on direct appeal. A defendant may attack the validity
of a guilty plea on direct appeal. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). But
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once a defendant has been senten ced, plea withdrawal is only permissible “if withdrawal
is necessary to correct a ‘manifest injustice.’” Raleigh, 778 N.W.2d at 93 (quoting Minn.
R. Crim. P. 15.05, subd. 1). A manifest injustice occurs if a guilty plea is not intelligent,
accurate, and voluntary. Id. at 94. We apply de novo review in considering the validity of
a guilty plea for the first time on appeal. State v. Johnson, 867 N.W.2d 210, 214-15 (Minn.
App. 2015), rev. denied (Minn. Sept. 29, 2015).1
Walker contends that his guilty plea is constitutionally invalid because it is not
accurate. A manifest injustice occurs when a guilty plea is not accurate. Raleigh, 778
N.W.2d at 94. “For a guilty plea to be accurate, a factual basis must be established showing
that the defendant’s conduct meets all elemen ts of the offense to which he is pleading
guilty.” State v. Jones , 921 N.W.2d 774, 779 (Minn. App. 2018), rev. denied (Minn.
Feb. 27, 2019); see also State v. Iverson , 664 N.W.2d 346, 349-50 (Minn. 2003). If the
defendant negates an essential element of the offense during the plea colloquy, the factual
basis is not accurate, and the plea is invalid. Jones, 921 N.W.2d at 779. But such

1 Despite the state’s argument to the contrary, review of the validity of a guilty plea, even
when performed for the first time on appeal, is de novo. Th e federal authorities provided
by the state, including Greer v. United States, 141 S. Ct. 2090 (2021), and its analysis of
Federal Rule of Criminal Procedure 52(b), are inapposite. Minnesota courts are not bound
by the Federal Rules of Criminal Procedure or by United States Supreme Court caselaw
interpreting those rules. See State ex. rel. Humphrey v. Philip Morris, Inc. , 606 N.W.2d
676, 686-87 (Minn. App. 2000) (stating federal rules and federal caselaw interpreting those
rules are helpful only insofa r as they “provide valuable guidelines in understanding
[Minnesota rules’] purpose and application” where “there are only minor differences
between [the federal and state rules]”) (quotation omitted), rev. denied (Minn. Apr. 25,
2000).
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statements may be “corrected” during the plea hearing. State v. Mikulak, 903 N.W.2d 600,
605 (Minn. 2017).
Walker pleaded guilty to first-degree sale of a controlled substance. A person is
guilty of that offense if “on one or more occasions within a 90-day period the person
unlawfully sells one or more mixtures of a total weight of 17 grams or more
containing . . . methamphetamine.” Minn. Stat . § 152.021, subd. 1(1). “Sell” is broadly
defined as “(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to
another, or to manufacture; or (2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).” Minn. Stat. § 152.01, subd.
15a (2018). The complaint charged Walker with possessing metham phetamine with the
intent to sell it. And at Walker’s guilty plea hearing, the prosecutor stated that the plea was
to the offense of “Possession with Intent to Sell.”
According to Walker, his guilty plea was not accurate because he made statements
that negated two essential elements of the offense in question: (1) knowledge that the
substance in his possession was a controlled substance and (2) intent to sell that substance.
We examine Walker’s statements relating to each of these elements in turn.
Knowledge of the Nature of the Controlled Substance
To commit a drug-possessi on offense under Minnesota law, a person must have
actual knowledge that th e item possessed is a controlled substance. See State v. Ali, 775
N.W.2d 914, 918 (Minn. App. 2009) (stating that drug-possession crimes require proof of
actual knowledge of the na ture of the substance), rev. denied (Minn. Feb. 16, 2010).
7
Walker argues that he negated the knowledge element when he stated that he “didn’t even
think [the methamphetamine] was real.”
Preliminarily, we note that Walker’s argument assumes, without accompanying
authority, that knowledge of the nature of a substance is an element of a sale offense. Given
the broad language of the definition of “sell,” which includes offers and agreements to sell,
this proposition may not be universally correct. See, e.g., State v. Fugalli, 967 N.W.2d 74,
78-81 (Minn. 2021) (concluding that defendant’s guilty plea to first-degree sale of heroin
was accurate where he offered to sell more than the threshold amount of 10 grams of heroin
but delivered less than that amount because the plain language of the term “sell” does not
require the actual delivery of 10 grams or mo re). But Walker specifically pleaded guilty
to possessing methamphetamine with the intent to sell it. Because the sale offense here is
predicated on Walker’s act of possession, we assume without deci ding that Walker’s
knowledge of the nature of the substance is an element of the offense.
In support of the argument that his statem ents negated the knowledge element of the
offense, Walker cites Mikulak. There, the defendant plea ded guilty to the offense of
knowingly violating the predatory- offender-registration statute. Mikulak, 903 N.W.2d at
602; see Minn. Stat. § 243.166 (2020) (predatory-offender-registration statute). During the
plea colloquy, he told the district court that he did not realize that the law required him to
register within a certain time period. Id. at 604-05. After some additional questioning, the
district court asked Mikulak whether he was familiar with the time element of the law, to
which Mikulak responded, “Yeah, now I am.” Id. at 605 (emphasis added). The supreme
court determined that Mikulak’s initial statement to the district court regarding his lack of
8
knowledge negated the knowledge element of the crime. Id. And the court concluded that
the second statement did not correct the problem but merely affirmed that he did not have
the requisite knowledge at the time of the alleged offense. Id. Thus, the supreme court
held that Mikulak’s plea was inaccurate and invalid. Id.
Here, Walker’s statement that he “didn’ t even think [the me thamphetamine] was
real” suggested that he did not have know ledge that the item in his possession was a
controlled substance. But unlike Mikulak, Walker subsequently made multiple statements
to the contrary. He admitte d telling the police that he was in Erskine to deliver
methamphetamine. He stated that V.N. had asked him to deliver me thamphetamine. He
acknowledged that he possessed methamphetamine with intent to deliver it to another
person. He admitted that his intent was to give two ounces of methamphetamine to Nate
and one ounce to another person. And he agreed that he fulfilled the intent element of the
crime. These statements, which were clear admissions that Walker knew he possessed a
controlled substance, corrected Walker’s in itial statement that he did not believe the
methamphetamine was real. Because Walker admitted to knowing possession of
methamphetamine, his statements established that he had actual knowledge of the nature
of the substance.
Intent to Sell
An intent to sell is an essential element of a first-degree drug sale. Minn. Stat.
§§ 152.01, subd. 15a, 152.021, subd. 1; State v. Heath, 685 N.W.2d 48, 62-63 (Minn. App.
2004), rev. denied (Minn. Nov. 16, 2004). Walker cont ends that he negated this element
during his plea hearing when he repeatedly st ated that he did no t intend to sell the
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methamphetamine, and instead “describe[ed] a situation where he was asked to deliver a
truck full of all of V.N.’s property to so mebody meeting him outside Erskine.” Although
he acknowledges that he also admitted to having the requisite intent during the plea hearing,
he emphasizes that these statements were only the result of “highly leading questions” and
were made “begrudgingly.”
As noted, the legislature has broadly de fined the term “sell. ” This definition
includes selling, giving away, bartering, delivering, exchanging, distributing, “dispos[ing]
of to another,” and manufacturing. Minn. Stat. § 152.01, subd. 15a. Under this definition,
possessing a controlled substance with the intent to deliver is a sale. Thus, Walker’s
statements that he merely planned to make a delivery did not negate the intent-to-sell
element.
We have carefully reviewed the transcript of Walker’s plea hearing. At times, he
was reluctant to admit to cert ain facts. He also made se veral statements minimizing his
culpability. In response, the prosecutor asked Walker multip le leading questions. Our
supreme court has emphasized that this is not a best-practice. See Raleigh, 778 N.W.2d at
95 (“[W]e generally discourage the practice of establishing a guilty plea’s factual basis by
permitting counsel to ask leading questions of a defendant, with the court remaining
silent.”) But the supreme court has also clarified that the aim of the accuracy requirement
is to ensure that a defendant “does not plead guilty to a crim e more serious than that of
which he could be convicted if he elected to go to trial.” Id.
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That concern is not present here. Based on our review of the pl ea hearing, we are
satisfied that Walker’s admissions during the plea hearing established his guilt of first-
degree sale of methamphetamine. We therefore conclude that his guilty plea is accurate.
II. Walker’s trial counsel did not provide ineffective assistance.
In a pro se supplemental brief, Walker ar gues that his conviction must be reversed
because he received ineffective assistance of trial counsel. He alleges that his trial counsel
provided deficient representa tion by failing to request a co mpetency evaluation after he
was found competent and by submitting an inadequate sent encing memorandum. “To
prove ineffective assistance of counsel, a de fendant must show that (1) his attorney’s
performance fell below an obj ective standard of reasonabl eness, and (2) a reasonable
probability exists that the outcome would have been different, but for counsel’s errors.”
State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2019) (quotations omitted). Trial counsel is
deficient when counsel “does not exercise the customary skills and diligence that a
reasonably competent attorney would pe rform under simila r circumstances.” White v.
State, 248 N.W.2d 281, 285 (Minn. 1976) (quoting United States v. Easter, 539 F.2d 663,
666 (8th Cir. 1976)). We presume that “counsel’s performance fell within a wide range of
reasonable assistance.” Bruestle v. State, 719 N.W.2d 698, 705 (M inn. 2006) (quotation
omitted).
Walker first argues that his trial attorn ey should have reque sted a competency
evaluation under Minnesota Rule of Criminal Procedure 20.01 following an evaluation that
found him competent. “A defendant has a due process right not to be tried or convicted of
a criminal charge if he or she is legally incompetent.” Bonga v. State, 797 N.W.2d 712,
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718 (Minn. 2011). The rule states, “If the prosecutor, defense counsel, or the court, at any
time, doubts the defendant’s competency, the prosecutor or defense counsel must make a
motion challenging competency, or the court on its initiative must raise the issue.” Minn.
R. Crim. P. 20.01, subd. 3. Upon such a moti on in a felony case, the district court must
suspend the proceedings, dete rmine whether there is prob able cause for the charged
offenses, and if so, order a competency evaluation. Minn. R. 20.01, subd. 3(b), (c).
The record shows that Walker initially had a competency evaluation that concluded
he may never gain competence to stand trial due to his diagnoses of “Major Neurocognitive
disorder due to TBI [traumatic brain injury ]” and “Mild Intellectual Disability.” But a
second evaluation reached the opposite conclusion, finding that Walker was “malingering”
and noting his “long history of intentionally exaggerating or feigning cognitive deficits and
physical impairment for secondary gain, including delaying lega l consequences and
obtaining better housing in the DOC.” Walker contends that his attorney’s failure to
request a third evaluation—even after he privately told his attorney that he was concerned
about the decision to forego another evaluation—was unreasonable.
We disagree. “The prosecutor, defense a ttorney, and the court share the duty to
protect the right of a defenda nt not to be tried or convi cted while incompetent.” Bonga,
797 N.W.2d at 718. Neither the prosecutor, the defense attorney, nor the judge raised any
concerns about Walker’s comp etence following the second evaluation. Moreover, our
review of the plea and sentencing transcripts re veals that Walker was lucid, logical, and
responsive. We cannot conclude based on th e record that a reasonable defense attorney
would have requested a competency evaluation under the circumstances. Finally, Walker
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makes no argument that he was not competent. Thus, he has not shown that his attorney’s
decision to forego a third evaluation affected the outcome of the proceedings. See Martin
v. State , 825 N.W.2d 734, 745 (Minn. 2013) (re jecting the claim that counsel was
ineffective for failing to request a competency evaluation where appellant did not contest
postconviction court’s finding that appellant fully participated in his trial).
Walker also argues that his trial counse l’s sentencing memorandum was inadequate.
He contends that the memora ndum presented “mitigating fact ors, but cited no caselaw,
statutes, or any rulings that would be in favor of Mr. Walker’s mitigating factors.”
At sentencing, the prosecutor asked the dist rict court to conclude that Walker was
a “dangerous offender” under Minnesota Statutes section 609.1095, subdivision 2, and to
depart on that basis. In making this dete rmination, the district court was required to
consider whether Walker had two qualifying prior convictions and was “a danger to public
safety.” Id. Walker’s attorney submitted a memo randum containing facts about Walker
as an individual.
The attorney’s approach to sentencing and the contents of her sentencing
memorandum were matters of strategy. We do not second-guess an attorney’s strategic
decisions; they are within the discretion of counsel and will not be reviewed for
competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Moreover, we cannot
conclude that a memorandum containing mo re legal authority wo uld have changed the
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district court’s sentencing decision. Thus, we reject Walker’s second claim of ineffective
assistance of trial counsel.2
III. The prosecutor did not commit misc onduct sufficient to warrant reversal.
Finally, Walker argues that the pros ecutor committed misconduct warranting
reversal at sentencing “by intentionally misrepresenting, misleading, and lying to the court
about Mr. Walker’s criminal record.” Specifically, Wa lker challenges the following
statements: (1) “the defendant’s got eight prior felony convictions,” (2) “of the eight, five
were for violent crimes,” and (3) Walker is “a violent thug who hur ts any and everybody
that gets in his way.” Walker characterizes these comments as “false, prejudicial, and . . .
unwarranted and unfounded.”
There was no objection to these statemen ts during the senten cing hearing. We
review claims of unobjected -to prosecutorial misconduct under a modified-plain-error
standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this approach, the
defendant must first establish the existence of an error that was plain, and then the burden
shifts to the state to establish that the plain error did not a ffect the defendant’s substantial
rights. Id.

2 Walker also takes issue with the district court’s imposition of an upward durational
departure more generally. However, given the district court’s conclusion that Walker was
a dangerous offender under section 609.1095, subdivision 2—a decision that Walker does
not challenge—the district court’s sentencing decision was within its broad discretion. See
State v. Barthman, 938 N.W.2d 257, 269 (Minn. 2020) (holding that a district court abuses
its discretion in departing only when its reasons for departure are legally impermissible or
the decision is supported by insufficient evidence).
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Walker fails to show that the prosecuto r’s discussion of his criminal history was
plain error. It is true that Walker did ha ve numerous prior convictions, including several
convictions for violent offenses. And Walker’s criminal history was a proper consideration
at sentencing. See Minn. Sent. Guidelines 2.B.01 (Supp. 2019) (indicating criminal history
is, along with severity of the conviction offe nse, one of two factors to be applied in
dispositional decisions).
But we are concerned about some of th e prosecutor’s other remarks. The
prosecutor’s sentencing memorandum called Walker “a violent gang-banging drug-dealer
– pure and simple” and “a violent gang-banger who decided to sell methamphetamine for
profit.” And at sentencing, the prosecutor added that Walker is “a drug dealer” and
“[a]dmitted gang member, who isn’t going to stop committing crime.” Certainly, “the
state’s argument is not required to be colorless.” State v. Davis , 735 N.W.2d 674, 682
(Minn. 2007). But the prosecutor’s inflammato ry language here—and particularly, the
repeated use of the term “gang-banger,” which has racial overtones—served no legitimate
purpose.3 While these statements did not amount to plain error here, and we are confident

3 Minnesota courts have consistently held th at prosecutors may not “inject[] irrelevant
racial issues” into a matter in an effort to exploit the passions and prejudices of the
decisionmaker. State v. Jackson , 714 N.W.2d 681, 693 (Minn. 2006); see also State v.
Cabrera, 700 N.W.2d 469, 475 (Minn. 2005) (“We emphasize . . . the improper injection
of race can affect a juror’s impartiality and must be removed from courtroom proceedings
to the fullest extent possibl e.” (quotation omitted)). Indeed, prosecutors have an
affirmative obligation to ensure defendants recei ve a fair trial, free from improper racial
considerations. See State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007) (“The prosecutor
is an officer of the court charged with the affirmative obligation to achieve justice and fair
adjudication, not merely convictions.”).
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they did not affect the district court’s sentencing decision, we caution prosecutors to avoid
unnecessarily inflammatory language of this nature.
Affirmed.