Jimmie Dunlap, Jr., 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This opinion is nonprecedential except as provided by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
A21-0299

Jimmie Dunlap, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 27, 2021
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-4079

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Atto rney, Nicole Cornal e, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant challenges the district court’s order denying his petition for
postconviction relief. In his po stconviction petition, appellant sought to withdraw his
guilty plea based on ineffective assistance of tr ial counsel. On appeal, he argues that the
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district court abused its discretion by denying his petiti on without first holding an
evidentiary hearing. Because the district court did not abuse its discretion, we affirm.
FACTS
In February 2017, respondent State of Minnesota charged appellant Jimmie Dunlap
Jr. with first-degree burglary (assault) in vi olation of Minn. Stat. § 609.582, subd. 1(c)
(2016), and felony domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2016).
After Dunlap’s arrest, the district court appoi nted a public defender to represent Dunlap.
The following summarizes the pretrial events most relevant to this appeal.
Dunlap’s trial was scheduled for November 27, 2017. On th at day, Dunlap’s
attorney moved for a continuan ce, in part because his “investigator ha[d] not completed
the investigation necessary to establish an a libi [de]fense on behalf of Mr. Dunlap.” The
state did not oppose the continuance request, and the district court agreed to reschedule the
trial for February 2018. The trial was later c ontinued again. On Ap ril 9, 2018, Dunlap
made a speedy-trial demand. Dunlap’s trial was scheduled for June 4, 2018, a date within
the speedy-trial timeline.
In May 2018, the parties appeared before the district court at defense counsel’s
request. The purpose of the hearing was to di scuss Dunlap’s representation. The public
defender handling Dunlap’s case did not appear. Instead, another attorney from the public
defender’s office appeared. Th at attorney relayed to the di strict court that Dunlap had
requested that the public defender’s office a ssign a different public defender to Dunlap’s
case.
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Dunlap also spoke at the hearing. He told the district court that he was dissatisfied
with his attorney’s level of responsiveness, particularly in relation to his requests for
documents relating to his case. He stated that he had needed to ca ll his trial attorney’s
supervisors “multiple times” in order to receive discovery materials, motions, and
documentation of the attorney’s communications with the prosecutor. And Dunlap claimed
that he was still missing some of the requested discovery materials. Dunlap also stated that
his conversations with his trial attorney often turned into arguments and that his attorney
was “not helping [him] at all in the case.”
The attorney from the public defender’s office who appeared at the hearing told the
district court that the public defender’s office had “been in constant contact with [Dunlap’s
trial attorney] with regards to this case.” The attorney further stated that she had “checked
the files” and knew that “[a]ll of the discovery” had been pr ovided to Dunlap well before
Dunlap had contacted his trial attorney or the others from the public defender’s office. The
attorney also told the district court that the public defender’s office would not be assigning
a different attorney to Dunlap’s case.
After hearing from Dunlap and the attorn ey from the public defender’s office, the
district court informed Dunlap that he ha d three options: he coul d represent himself,
proceed with his current attorney , or retain a private attorney . Dunlap repeatedly stated
that he did not want to represent himself an d would like the public defender’s office to
represent him, but that he did not want his current attorney to do so. The district court
ultimately declined to discharge the public defender’s office and informed the parties that
the case would proceed to trial on June 4, 2018, as scheduled.
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On May 22, 2018, Dunlap’s trial attorney filed a witness list and a notice of an
affirmative alibi defense.
The parties appeared for trial on June 4, 2018, but the district court continued the
trial to the next day because the judge and prosecutor were finishing other trials. The
parties then appeared on June 5 with the intent to start jury selection on June 6. After
discussing scheduling and other matters, Dunlap’s attorney informed the court that he had
filed two amended notices of an alibi defe nse on June 4, the day before. He also
acknowledged that the original notice, filed on May 22, and the first amended notice, filed
on June 4, each contained a typographical error and, as a result, listed the incorrect address
for Dunlap’s alibi witness. The original notice was incorrect by one digit, and the first
amended notice was incorrect by two digits. Dunlap’s attorney explained that the second
amended notice, filed later on June 4, contained the correct address.
On June 6, the parties appeared before the district court to address unresolved
motions prior to the start of trial. The state moved to continue the trial, noting that Dunlap’s
attorney filed the corrected alibi notice just two days earlier. The prosecutor requested “a
continuance to do further investigation of that alibi defense.” The prosecutor indicated that
additional time was necessary because the alibi notice cont ained only an address—the
notice did not include the name of the alibi w itness. As a result, the prosecution’s ability
to investigate the alibi witness was hindered by the errors in the prior alibi notices. In
addition, because a continuance would result in the trial occurring outside of the 60-day
speedy-trial timeframe, the state requested that the district court find good cause to delay
the trial. Dunlap’s attorney opposed the motion, arguing th at Dunlap was “ready to go”
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and that the state had known about the alibi defense for a couple of weeks, although he
again acknowledged the typographi cal errors in the earlier versions of the notice. The
district court agreed with the state and found good cause to delay the trial. The district
court then rescheduled the trial for July 16.
On June 15, approximately one month before the schedul ed trial, Dunlap pleaded
guilty pursuant to a plea agreement with the state. Consistent with the agreement, Dunlap
pleaded guilty to the first-de gree burglary charge, and the state dismissed the felony
domestic-assault charge as well as other charges pending against Dunlap in separate court
files. The district court sentenced Dunlap, in accordance with th e plea agreement, to
67 months in prison, stayed for five years.
In September 2020, Dunlap filed a petiti on for postconviction relief, requesting to
withdraw his guilty plea on th e basis of ineffective assistance of counsel. In an
accompanying legal memorandum, Dunlap argued that his trial attorney “failed to
adequately communicate with [h im], failed to investigate his alibi defense, and failed to
adequately prepare for trial.” The memorandum also asserted that Dunlap had called the
district court twice in March 2018 and left voicemails expressing hi s concerns that his
attorney was not communicatin g with him, had not yet re quested a speedy trial on his
behalf, and had refused to investigate his alibi witness. He also purportedly told the district
court that he and his attorney were having disagreements about whether to request an
evidentiary hearing or present an alibi defense. Dunlap’s memorandum further argued that
Dunlap decided to plead guilty after the district court told him that he would need to keep
his current attorney or represent himself beca use he felt that he would not be adequately
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represented at trial. Dunlap’s postconvic tion attorney—who was no t his trial attorney—
did not file an affidavit from Dunlap, or any other person, to support the assertions in the
memorandum. Dunlap’s postconviction attorney later requested an evidentiary hearing on
the petition.
The district court denied Dunlap’s postconvi ction petition without an evidentiary
hearing. The district court determined that Dunlap had failed to alle ge sufficient facts to
support a conclusion that his trial attorney was ineffective.
Dunlap appeals.
DECISION
Dunlap argues that the district court abused its discretion when it denied his
postconviction petition to withdraw his guilty plea due to ineffective assistance of counsel
without first holding an evidentiary hearing. We disagree.
We review a district court’s denial of a postconviction petition, as well as a request
for an evidentiary hearing, fo r an abuse of discretion. Chavez-Nelson v. State ,
948 N.W.2d 665, 671 (Minn. 2020). A district court does not abuse its discretion when it
denies a petition for postconvic tion relief unless it has “exercised its discretion in an
arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made
clearly erroneous factual findings.” Henderson v. State , 906 N.W.2d 501, 505
(Minn. 2018) (quotation omitted).
A court may dismiss a petition for postc onviction relief wit hout conducting an
evidentiary hearing if “the petition and the files and records of the proceeding conclusively
show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2020). To
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determine whether an evidentiary hearing is required, the dist rict court must consider the
facts alleged in the petition as true and view them in “the light most favorable to the
petitioner.” Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018) (quotation omitted).
No evidentiary hearing is required “if the petitioner fails to a llege facts that are sufficient
to entitle him or her to the relief requested.” Leake v. State , 737 N.W.2d 531, 535
(Minn. 2007). A petitioner will not meet his burden if he merely offers “conclusory,
argumentative assertions, without factual support.” State v. Turnage , 729 N.W.2d 593,
599 (Minn. 2007).
“A defendant has no absolute right to wi thdraw a guilty plea after entering it.”
State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But, upon a timely motion, a district
court “must allow” a defendant to withdraw a plea if it “is necessary to correct a manifest
injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest in justice exists if a guilty plea
is not valid.” Raleigh, 778 N.W.2d at 94. “To be constitutionally valid, a guilty plea must
be accurate, voluntary, and intelligent.” Id.
Dunlap contends that his guilty plea to first-degree burglary was involuntary and
therefore invalid because his tria l attorney was ineffective. See Sanchez v. State,
868 N.W.2d 282, 286 (Minn. App. 2015) (“In effective assistance of counsel renders a
guilty plea involuntar y and unintelligent.”), aff’d, 890 N.W.2d 716 (Minn. 2017). To
obtain relief on his claim of ineffective assist ance of counsel, Dunlap “must allege facts
that, if proven by a fair pr eponderance of the evidence,” would show that (1) his trial
attorney’s representation fell below an objec tive standard of reasonableness and (2) there
is a reasonable probability that he would not have pleaded guilty but for his trial attorney’s
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errors. Chavez-Nelson, 948 N.W.2d at 67 1 (quotation omitted); Campos v. State ,
816 N.W.2d 480, 486 (Minn. 2012). We need not address both prongs of the test if one
prong is determinative. Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020).
Dunlap argues that the district court a bused its discretion by summarily denying his
postconviction petition because his petition and the record show that his attorney failed to
adequately communicate with him, failed to investigate his alibi defense, and failed to
adequately prepare for trial. We address each of Dunlap’s arguments in turn.
A. Communication
In the memorandum accompanying his pos tconviction petition, Dunlap argued that
his trial attorney “failed to adequately communicate” with Dunlap. Dunlap supported that
argument by pointing to two ex parte voicemails that Dunlap le ft for the district court in
March 2018 in which he expressed his concern that “his attorney was not communicating
with him.” Dunlap also relied on statements that he made at the May 2018 hearing, during
which he explained to the court that he was unhappy with his trial attorney’s level of
communication with him. Ba sed on its review of Dunlap ’s memorandum and the other
documents in the record, the district court concluded that Dunlap had not alleged sufficient
facts to show that his atto rney’s communication with Dunl ap fell below an objective
standard of reasonableness. The district court found that the record reflected that Dunlap’s
attorney “did in fact commun icate with [Dunlap] on several occasions.” And the district
court determined that, although there may have been some conflict between Dunlap and
his attorney that “may constitute imperfect communication,” Dunlap had “not alleged any
facts that show exactly what his former counsel failed to communicate with him about.”
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Based on our own careful review of the reco rd, we agree with the district court that
Dunlap failed to allege sufficient facts to support his claim that his trial attorney’s level of
communication with him was ob jectively unreasonable. Foremo st, as the district court
concluded, Dunlap did not identify with any specificity the subject matter about which his
trial attorney allegedly failed to communicate with him. Dunlap’s memorandum to the
district court merely summarized the complaints that he made about his trial attorney in the
March 2018 voicemails and during his stat ements at the May 2018 hearing. The
memorandum did not make any affirmative assertions that Dunlap’s attorney in fact failed
to communicate with him about any important information. And Dunlap’s appellate brief
fails to direct us to any information in th e record that would support his conclusory
assertion that his trial attorney “failed to adequately communicate” with him.
We acknowledge that Dunlap’s petition indi cates that Dunlap was disappointed with
his trial attorney’s level of responsiveness, and it appears that he and his trial attorney had
some disagreements regarding trial strategy. But the petition, files, and records of the
proceeding—even when viewed in the light most favorable to Dunlap—do not show that
his attorney’s level of communication fell below an objective standard of reasonableness.
The district court did not abuse its di scretion by summarily denying Dunlap’s
postconviction petition on that basis.
B. Investigation of Alibi Defense
Dunlap also argues that his trial attorney was ineffective because he “failed to
investigate [Dunlap’s] alibi defense.” The di strict court concluded that the record shows
that the attorney “did inve stigate [Dunlap’s] alibi defense” and that, therefore, the
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attorney’s performance was not unreasonable on that basis. We agree with the district
court.
The record supports the dist rict court’s finding of fact th at Dunlap’s trial attorney
investigated his alibi defense. The reco rd reflects—and Dunl ap acknowledges—that
Dunlap’s trial counsel filed a notice of an alibi defense on May 22, 2018. His trial counsel
then filed an amended notice on June 4, 2018, and a second amended notice that same day.
The record also reflects that Dunlap’s trial attorney informed the district court that the first
two notices contained typographical errors regarding the alibi address information, and that
the most recent notice had the correct addre ss information. Acco rdingly, the record
conclusively shows that Dunlap’s trial attorney did investigate his alibi defense.
Dunlap’s arguments on appeal do not persuade us otherwise. In his appellate brief,
Dunlap notes that his trial attorney did not file the notice of his alibi defense until after the
trial had been continued twice and Dunlap had complained to the dist rict court about his
attorney’s performance. And he emphasizes that when his trial attorney filed the notice of
alibi defense, “it was defici ent and required several corrections and resulted in another
continuance, beyond Mr. Dunlap’s speedy trial timeframe.” Dunlap does not explain how
either of those allegations sup ports his position that his attorney “failed to investigate his
alibi defense.” Instead, he appears to impl icitly argue that his attorney was ineffective
because he delayed his investigation into Dunlap’s a libi. But Dunlap does not explicitly
make that argument, and he does not allege facts to show that any delay was objectively
unreasonable.
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Because Dunlap did not provide any support for his allegation that his trial attorney
failed to investigate his alibi defense, the district court did not abuse its discretion by
summarily denying his postconviction petition on that basis.
C. Preparation for Trial
Dunlap next argues that his trial attorn ey was ineffective because he failed to
adequately prepare for trial. Before the district court, Dunl ap appears to have based this
argument primarily on his two prior arguments—that his trial attorney failed to adequately
communicate with him and failed to investigate his alibi defense. He also argued that his
trial attorney “failed to give him his discovery materials as requested.” The district court
rejected Dunlap’s argument, concluding that his counsel’s trial prep aration did not fall
below an objective standard of reasonableness. The district court determined that the
attorney “was prepared to proceed to trial on June 6, 2018,” “filed several motions on
[Dunlap’s] behalf” both before and after the June 6 hearing, and “made numerous
arguments to the court on [Dunlap’s] behalf, in cluding an argument to proceed to trial on
June 6, 2018.”
On appeal, Dunlap appears to make largely the same argument as he did before the
district court. He also appears to argue that the district court’s de scription of the record
fails to consider that “[t]he first notice or motion [his] attorney filed on his behalf occurred
after the continued trial date and after Mr. D unlap contacted the court to complain about
his attorney’s deficient performance.” We are not persuaded that Dunlap has demonstrated
an abuse of discretion by the district court.
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To the extent that Dunlap’s argument rega rding his attorney’s trial preparation is
based either on his contention that his attorney failed to adequately communicate with him
or on his claim that his attorney failed to investigate his alibi defense, we conclude, relying
on our earlier analyses, that Dunl ap has failed to allege su fficient facts to support the
argument. Moreover, even if Dunlap’s inadequate-trial-preparation argument is distinct
from his other arguments, we are unconvinced. Based on our careful review, we conclude
that the record suppor ts the district court’s findings th at Dunlap’s trial attorney made
several motions and arguments on Dunlap’s be half throughout the pretrial proceedings.
For instance, counsel made a speedy-trial dema nd, filed a defense witness list, and filed
notice of Dunlap’s alibi defense.1 At an omnibus hearing, counsel inquired into the state’s
level of contact with the victim and argued that the district court should not impose a
no-contact order against Dunlap. Counsel al so argued against the state’s continuance
request at the June 6, 2018 he aring. There is no indication in the record that Dunlap’s
counsel was unprepared to proceed to trial on that day. And Dunlap’s general complaint
that his attorney delayed in f iling motions or providing notice of his alibi defense fails to
show that his attorney was in adequately prepared. The dist rict court did not abuse its
discretion by summarily denying Dunlap’s postconviction petition on that basis.

1 The district court’s register of actions also reflects that counsel requested a bail hearing
and contested probable cause.
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Conclusion
In sum, because Dunlap fa iled to allege facts sufficien t to entitle him to the relief
requested and offered only conc lusory, argumentative asserti ons, the district court acted
within its discretion when it summarily denied Dunlap’s petition for postconviction relief.
Affirmed.