Tescil Romalis Mason-Kimmons, 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This opinion is nonprecedential except as provided by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
A21-0696

Tescil Romalis Mason-Kimmons, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 28, 2022
Reversed and remanded
Frisch, Judge

Hennepin County District Court
File No. 27-CR-17-30036

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

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Smith, John,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FRISCH, Judge
Following the denial of his motion to withdraw his guilty plea, appellant asserts that
a manifest injustice occurred when he received ineffective assistance of counsel . We
reverse and remand.
FACTS
On November 29, 2017, respondent State of Minnesota charged appellant Tescil
Romalis Mason-Kimmons with second -degree murder, pursuant to Minn. Stat. § 609.19,
subd. 1(1) (2016). On March 2, 2018, a grand jury indicted Mason -Kimmons on charges
of first-degree murder, pursuant to Minn. Stat. § 609.185(a)(1) (2016), and being a felon
in possession of a firearm, pursuant to Minn. Stat. § 624.713, subd. 1(2) (2016).
Mason-Kimmons was initially represented by counsel from the public defender’s office ,
but in February 2018, he discharged his public defender and retained private counsel.
Over the objection of new counsel, t he district court scheduled Mason-Kimmons’s
trial for August 13, 2018 . Counsel informed the district court that he had five upcoming
trials over the summer and his schedule would therefore not afford him sufficient time to
prepare for a first-degree murder trial as scheduled.
Counsel thereafter moved to continue the trial date three times; the district court
denied each continuance request. Counsel first moved to continue the trial on May 31,
2018, claiming that his schedule impeded his ability to work on the case and that he needed
additional time to conduct his own discovery and to review the significant amount of
discovery produced by the state. In denying the motion, the district court stated that “[t]he
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August 13, 2018 trial setting will remain in place at this time, but the Court will entertain
another continuance request if circumstances change.”
Counsel submitted a second continuance request on August 6, 2018, a week before
trial. Counsel reiterated that his schedule had interfered with his ability to prepare the case
and that he needed more time to complete discovery. Three days later, at the pretrial
hearing, counsel stated that “[i]f you order us to go to trial next week . . . it’s basically
tantamount to saying okay, he’s going to be found guilty because his lawyer is telling you
right here in court that I’m unprepared.” The district court again denied the motion ,
concluding that counsel’s private investigator had sufficient time to complete the
investigation and that counsel would be able to sufficiently prepare the case before the
commencement of trial the following week.
Also at the pretrial hearing, counsel learned that the state had produced
supplemental discovery. Counsel collected the new discove ry later that day. This
discovery consisted of approximately 400 pages, included several witness interviews, and
identified witness contact information that was previously unknown to the defense.
Counsel submitted the third continuance request on the d ay of trial, August 13,
2018. In support of the motion, counsel reiterated the earlier-identified reasons and added
that the new discovery he received four days prior contained new information requiring
additional investigation. Counsel stated that “I’m not prepared to go to trial. . . . [I]t’s not
my intention to go to trial.” The district court denied the motion.
The district court then proposed that it take a recess before commencing the trial to
enable the parties to discuss a potential resolution. During the one-hour-and-forty-minute
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recess, the parties agreed, in pertinent part, that Mason-Kimmons would plead guilty to an
amended charge of second-degree murder and the remaining charges would be dismissed.
The district court then held a guilty-plea hearing. The district court engaged in the
following colloquy with Mason-Kimmons:
THE COURT: [O]bviously it’s a really important decision you
made going forward. And it’s your decision to make. It’s not
mine, it’s not [counsel’s]. I want to make sure that among the
options that you have, that this is the option that you want to
go forward with.
MASON-KIMMONS: Correct.

THE COURT: And like I said, it’s a big decision and I know
there’s been some time pressure. I don’t want to pressure you
into it. And I know it seems like I’ve been trying to move the
case forward. But as I mentioned a couple of times, I recognize
this is a big case for you and [counsel]. And I don’t want the
pressure of the moment to be the only thing that allows you to
make your decision. Do you know what I’m saying?
MASON-KIMMONS: I hear what you’re saying, but you
didn’t give us no time to speak to the other witnesses, though.
Yeah.

THE COURT: All right. You understand that you’d be giving
up your right to continue to ask for a continuance, as well as to
go forward with trial in this case?
MASON-KIMMONS: Yes, Your Honor.

THE COURT: All right. And knowing the options that you
have, is this the option you want to exercise?
MASON-KIMMONS: Yes, Your Honor.

The district court then received testimony regarding the factual basis for the plea and
thereafter accepted Mason-Kimmons’s guilty plea.
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On October 2, 2018, the district court sentenced Mason -Kimmons to 366 months’
imprisonment. At sentencing, Mason -Kimmons stated: “I apologize for taking the plea
agreement, but I wasn’t going to get a fair trial. . . . [S]o that’s why I’m taking this deal.”
Mason-Kimmons directly appealed and then moved to stay the appeal and remand
for postconviction proceedings. We granted his motion. Mason -Kimmons then filed a
petition for postconviction relief, arguing that he was entitled to withdraw his guilty plea
because the plea was involuntary for three reasons: his attorney was unprepared due to the
district court denying his continuance requests; the district court failed to inquire into the
state’s leniency promise toward the co -defendant; and counsel provided him with
ineffective assistance. The postconviction court denied the petition without holding an
evidentiary hearing.
We then reinstated the appeal and issued an opinion o n May 18, 2020, where we
held that (1) Mason-Kimmons’s guilty plea was not involuntary because the district court
denied his continuance motions; (2) he was not coerced by an offer of third-party leniency;
and (3) his ineffective-assistance-of-counsel claim warranted an evidentiary hearing. State
v. Mason-Kimmons, No. A18-2145, 2020 WL 2517067, at *1, *4 -7 (Minn. App. May 18,
2020) (“Without an evidentiary hearing, we cannot on this record affirm that appellant
received effective assistance of counsel during the hastily arranged plea discussions.”). We
remanded to the postconviction court for an evidentiary hearing. Id. at *7.
On September 28, 2020, the postconviction court held an evidentiary hearing on
Mason-Kimmons’s ineffective-assistance-of-counsel claim. Counsel testified that his and
Mason-Kimmons’s “intent was to have a trial ,” but that Mason -Kimmons pleaded guilty
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rather than proceeding to trial with an attorney who was not prepared. Counsel also
testified that he was unable to review with Mason -Kimmons the supplemental discovery
that he received on August 9 , stating, “I think it was a hundred pages of narrative, 397
pages total, which obviously even if I could have reviewed all of it, I had not had an
opportunity to review it with him.” Mason-Kimmons testified that he intended to take his
case to trial and that he had “zero doubt” he would have gone to trial had his counsel been
prepared. Mason-Kimmons testified that the fact that his attorney was unprepared played
a “major role” in his decision to plead guilty; if counsel had been prepared,
Mason-Kimmons “wouldn’t even been thinking about pleading guilty.”
The po stconviction court again denied the petition for postconviction relief.
Mason-Kimmons appeals.
DECISION
Mason-Kimmons argues that he should be entitled to withdraw his guilty plea
because he received ineffective assistance of counsel, constituting a manifest injustice.
The Sixth Amendment of the United States Constitution guarantees the right to
effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 684 -86 (1984).
This right guarantees to a criminal defendant an attorney with “reas onable competence,”
but not necessarily “perfect advocacy.” Maryland v. Kulbicki , 577 U.S. 1, 5 (2015)
(quotation omitted). The right to effective counsel extends to a defendant’s decision to
plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
A manifest injustice occurs when a guilty plea is not constitutionally valid. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “To be constitutionally valid, a guilty plea must
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be accurate, voluntary, and intelligent.” Id. Here, Mason-Kimmons asserts that his plea
was involuntary. “The voluntariness requirement [e]nsures the defendant is not pleading
guilty because of improper pressures.” State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).
“A defendant’s guilty plea may be constitutionally invalid if the defendant received
ineffective assistance of counsel.” Sames v. State , 805 N.W.2d 565, 567 (Minn. App.
2011), rev. denied (Minn. Dec. 21, 2011). “[T]he voluntariness of the p lea depends on
whether counsel’s advice was within the range of competence demanded of attorneys in
criminal cases.” Ecker, 524 N.W.2d at 718 (quotation omitted).
We review ineffective -assistance-of-counsel claims involving mixed questions of
law and fact de novo. State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) (applying
de novo review to postconviction appeal). But we defer to a district court’s findings of fact
and “will not set them aside” unless they are clearly erron eous. State v. Anderson , 784
N.W.2d 320, 334 (Minn. 2010). “The defendant bears the burden of establishing the facts
that support his claim that the guilty plea is invalid.” State v. Mikulak, 903 N.W.2d 600,
603 (Minn. 2017).
We apply the Strickland two-part test to determine whether a criminal defendant
received ineffective assistance of counsel when entering a guilty plea. Campos v. State ,
816 N.W.2d 480, 485 (Minn. 2012). To prevail on such an ineffective-assistance claim,
Mason-Kimmons must demon strate (1) that counsel’s representation fell below an
objective standard of reasonableness and (2) “prejudice” in the form of a “reasonable
probability” that, but for counsel’s “unprofessional errors,” Mason -Kimmons would not
8
have pleaded guilty. Strickland, 466 U.S. at 687 -88, 694; Campos, 816 N.W.2d at 486.
We address the two prongs of the Strickland test in turn.
I. Counsel provided Mason-Kimmons with objectively unreasonable advice.
Mason-Kimmons argues that counsel ’s performance fell below an objective
standard of reasonableness when counsel advised Mason-Kimmons to plead guilty because
counsel was unprepared for trial .1 The state concedes that this advice is objectively
unreasonable. We agree with the parties that Mason -Kimmons received objectively
unreasonable advice when counsel advised him to plead guilty because counsel was
unprepared for trial.
The objective standard of reasonableness is measured by “prevailing professional
norms.” Strickland, 466 U.S. at 688. Counsel acts reasonably when “exercis[ing] the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances.” State v. Bobo , 770 N.W.2d 129, 138 (Minn. 2009) (quotation
omitted). This reasonableness is assessed “on the facts of the particular case, viewed as of
the time of counsel’s conduct.” Strickland, 466 U.S. at 690.
While the postconviction court found that “Mason-Kimmons fail[ed] to show that a
reasonable attorney would have been more successful in his efforts to locate supposedly
key witnesses,” the postconviction court did not address whether counsel’s specific advice
to Mason-Kimmons to plead guilty on the basis of counsel’s own lack of preparation fell

1 Mason-Kimmons advances additional theories as to why counsel provided him with
objectively unreasonable advice. We need not address those alternate theories in light of
our holding.
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below an objective standard of reasonablene ss. This omission is particularly troubling
because the postconviction court explained “that [counsel] advised Mr. Mason -Kimmons
to take a guilty plea because he believed his lack of preparation might hurt
Mr. Mason-Kimmons at trial” and that “[counsel] b elieved that his client only pled guilty
because he believed [counsel] was not prepared for trial, and that his client would have
proceeded to trial if he believed [counsel] was fully prepared.” In assessing the first
Strickland prong, the postconviction court was obligated to assess whether this advice fell
below an objective standard of reasonableness, and its failure to do so is error.
We need not remand this issue to the postconviction court because , on our de novo
review, we conclude that counsel’s advice to a criminal defendant to plead guilty because
counsel is unprepared for trial falls below an objective standard of reasonableness. At oral
argument, the state agreed that such advice is objectively unreasonable.
The American Bar Association’s standards support our conclusion. See Strickland,
466 U.S. at 688 (“Prevailing norms of practice as reflected in American Bar Association
standards . . . are guides to determining what is reasonable.”). The standards specify that:
“Defense counsel should not recommend to a defendant acceptance of a pl ea unless
appropriate investigation and study of the case has been completed.” Am. Bar. Ass’n,
Crim. Just. Standards, Pleas of Guilty, 14 -3.2(b) (3d ed. 1999). Federal caselaw further
supports this conclusion. See Via v. Superintendent, Powhatan Corr. C tr., 643 F.2d 167,
175 (4th Cir. 1981) (“Defense counsel who is unprepared to try a case is also inadequately
prepared to advise his client intelligently to plead guilty and accept a plea bargain calling
for a substantial sentence.”); United States v. Moor e, 599 F.2d 310, 313 (9th Cir. 1979)
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(“A plea entered because counsel is unprepared for trial is involuntary.”), cert. denied, 444
U.S. 1024 (1980); Colson v. Smith , 438 F.2d 1075, 108 0-81 (5th Cir. 1971) (concluding
that a “guilty plea was the product of ineffective assistance of counsel” when the attorney
was “unprepared to go to trial” and there was “no evidence that counsel’s advice to plead
guilty was based on any evaluation of petitioner’s chances had he gone to trial”). Finally,
Strickland itself strongly indicates that such advice is unreasonable. Strickland, 466 U.S.
at 690-91(“[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.”); id. at 686 (“The benchmark for judging any claim of ineffectiveness is
whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”); id. at 696 (“[T]he
ultimate focus of [the] inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged.”). Taken together, we are compelled to agree with the parties
that the advice of counsel to a criminal defendant to plead gu ilty because counsel is not
prepared for trial falls below an objective standard of reasonableness.
Accordingly, Mason-Kimmons satisfies the first prong of the Strickland test because
his counsel provided him with objectively unreasonable advice.
II. The postconviction court must determine whether Mason-Kimmons was
prejudiced by counsel’s objectively unreasonable advice.

Mason-Kimmons next argues that he was prejudiced because he would not have
accepted the state’s offer to plead guilty but for counsel’s objectively unreasonable advice.
The state disagrees, contending that the evidence in the record establishes that
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Mason-Kimmons pleaded guilty because the state’s evidence against him wa s strong and
he received a favorable plea offer.
To establish prejudice, Mason -Kimmons “must demonstrate a reasonable
probability that, but for counsel’s ineffective representation, he would not have entered his
plea.” Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
The postconviction court concluded that Mason-Kimmons was not prejudiced by
advice of counsel because he “has not proven that the outcome [of the trial] would have
been different” in the absence of the unreasonable advice. But the standard for determining
prejudice in this context is whether Mason-Kimmons would have pleaded not guilty but
for counsel’s unreasona ble advice, not whether the outcome of a trial would have been
different had his case actually proceeded to trial. See Hill v. Lockhart , 474 U.S. 52, 59
(1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial .” (emphasis added)). The postconviction
court therefore erred by applying the incorrect standard to evaluate prejudice.2

2 In our previous Mason-Kimmons opinion, we set forth the proper framework for the
postconviction court to consider in analyzing the second Strickland prong:

To our review of the record, appellant made at least a prima
facie showing that his lawyer’s deficient performance
prejudiced him and that he would not have pleaded guilty but
for that deficiency.

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We cannot resolve this issue on appeal, however, because the postconviction court
did not make any factual findings as to Mason -Kimmons’s articulated rationale for
accepting the state’s offer and made no credibility findings as to the testimony or other
evidence received at the evidentiary hearing. “Trial courts stand in a superior position to
appellate courts in assessing the credibility of witnesses.” In re Welfare of A.D. , 535
N.W.2d 643, 648 (Minn. 1995) (quotation omitted). We do not engage in fact -finding on
appeal. Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 324 (Minn. App. 2004) (“ [T]his
court cannot serve as the fact -finder.” (citing Kucera v. Kucera , 146 N.W.2d 181, 183
(Minn. 1966)), rev. denied (Minn. Dec. 14, 2004).
On this record, we cannot determine whether Mason -Kimmons was prejudiced by
his counsel’s objectively unreasonable advice. T he state identifies alternative reasons as
to why Mason-Kimmons accepted the state’s offer beyond counsel’s lack of preparedness,
including the strength of the state’s case and the favorable terms of the plea agreement. In
the absence of findings as to the credited evidence by the postconviction court , we cannot
conclude that Mason -Kimmons was prejudiced by counsel’s objectively unreasonable
advice.
We therefore reverse and remand to the postconviction court to set forth its findings
with respect to the credited evidence as to the reasons Mason-Kimmons accepted the state’s
plea offer, as well as any other relevant findings of fact .3 We furthe r direct the

2020 WL 2517067, at *8 (emphasis added).

3 We express no opinion as to whether the district court should receive additional evidence
on remand.
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postconviction court to apply the correct prejudice-prong standard to determine whether,
but for counsel’s unreasonable advice , there is a reasonable probability that
Mason-Kimmons would have pleaded not guilty . See Hill , 474 U.S. at 59 ;
Mason-Kimmons, 2020 WL 2517067, at *8.
Reversed and remanded.