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This opinion is nonprecedential except as provided by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
A21-0824

State of Minnesota,
Respondent,

vs.

Gail Lynn Schauer,
Appellant.

Filed February 13, 2023
Affirmed
Reyes, Judge

Scott County District Court
File No. 70-CR-20-406

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Faison T. Sessoms, Minneapolis, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues in this postconviction appeal that her guilty plea and conviction
must be vacated because: (1) she did not make a knowing, intelligent, or voluntary guilty
plea; (2) she receiv ed ineffective assistance of trial counsel; (3) the state engaged in
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prosecutorial misconduct ; and (4) the district court failed to follow Minn. R. Crim. P.
15.04, subd. 3(2). We affirm.
FACTS
On February 3, 2019, appellant Gail Lynn Schauer ran a stop sign with her vehicle
and struck another vehicle. The crash killed a 14- year-old passenger in the vehicle that
appellant struck. It also resulted in injuries to the driver of that vehicle and to an individual
in a third vehicle . According to t he complaint, moments before the collision, appellant
placed a call and texted using her cell phone. Respondent State of Minnesota charged
appellant with one felony count of criminal vehicular homicide in violation of Minn. Stat.
§ 609.2112 subd. 1(a)(1) (2018), and two gross-misdemeanor counts of criminal vehicular
operation in violation of Minn. Stat. § 609.2113 subd. 3(1) (2018). As a severity- level-
eight offense, the felony criminal-vehicular-homicide charge has a presumptive
commitment to prison of 41 to 57 months. Minn. Sent’g Guidelines 5.B, 4.A (2018).
Appellant’s Guilty Plea
At a hearing in October 2020, the state provided the terms of a plea offer:
Well, the -- the general framework is plea to Count I, the
Criminal Vehicular Homicide count. The other count s
dismissed, a stay of execution of 48 months, supervised
probation for five years, serve 365 days in the Scott County Jail
with work release , and then other cond itions: remain law
abiding, no traffic violations, no use of cellphones, electronics
in vehicles, 80 hours of community work service, and there is
some stipulations on how that would be done, pay
restitution . . . .

Appellant’s counsel requested, and the district court granted, a continuance for time for
appellant to consider the state’s offer. T he district court noted that “the victims in this
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case . . . need some finality so there won’t be any additional continuances.” Moreover, the
district court verified with the state that if there was not a resolution with the offer at the
next hearing, then the offer would be withdrawn, and the state would “ask[] for a guideline
sentence.”
Later that month, a ppellant signed a guilty -plea petition , stating that appellant
agreed to plead guilty to one count of felony criminal vehicular homicide with the
remaining charges dismissed and the following: “[s]tay of [e]xecution 48 months;
[s]upervised probation for five years; [s]erve 365 Scott County Jail with work release.” At
the plea hearing, the state orally presented the plea agreement without mention of work
release. Appellant’s counsel confirmed that the state’s representation was consistent with
appellant’s understanding, also without mention of work release. The district court and the
state then questioned appellant to establish the factual basis, during which she confirmed
all facts relevant to the guilty plea. The district court deferred acceptance of the plea,
ordered a presentence investigation report (PSI), and set a sentencing date.
In December 2020, appellant met with a probation officer as part of the PSI. The
probation officer informed appellant that “work release” was shut down at the time . The
PSI described the plea agreement without any mention of work release. Appellant then
contacted her attorney, C.C., to ask about the status of the work-release program, and C.C.
stated that he would check into it.
Sentencing
At the April 16, 2021 sentencing hearing, appellant requested that the district court
delay her report date until August 1, 2021, because “the Scott County Jail is currently not
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offering [work release] due solely to the covid pandemic .” The state acknowledged that
work release was unavailable but opposed any delayed report date longer than two weeks .
The state argued , in part , that appellant’s report date should not be delayed because
appellant “should not have the freedom to choose her turn- in date” as her argument that
income was necessary for restitut ion “really pales in comparison to everything else in this
case: the loss of a son, the loss of a brother, nephew, the loss of a gra ndson, the loss of a
best friend.”
The district court denied appellant’s request, accepted her guilty plea, stayed
execution of a 48-month prison sentence, a downward dispositional departure, and placed
appellant on supervised probation for five years. T he sentencing order did not mention
work release.
Post-Sentencing
On April 21, 2021, appellant emailed her attorney and stated the following:
Am I wrong or does the plea agreement I signed not have
anything stating work release if eligible or anything to t hat
effect? From what I am seeing, it says: 365 days S cott County
jail work release. Doesn’t the Court have to honor that
contract? I am sorry I just still do not understand this.

C.C. responded with the following:

You are correct in the wording contained in the plea agreement.
However, the “if eligible” aspect is always considered to be a
part of any work release term. A plea agreement never spells
out the if eligible part. Happy to answer any other questions.

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Shortly after the jail reinstated wor k release, the district court granted appellant’s
motion for work release and amended the warrant of commitment to reflect that. Appellant
served approximately 45 days of “straight time” in jail before she started work release.
Postconviction Court Proceedings
On July 1, 2021, appellant filed a notice of appeal. This court granted appellant’s
motion to stay her direct appeal so she could petition for postconviction relief. Appellant’s
postconviction petition sought to withdraw her guilty plea because (1) her p lea was not
knowing, intelligent, or voluntary; (2) she received ineffective assistance of counsel ;
(3) the state committed prosecutorial misconduct ; and (4) her conviction was obtained in
violation of Minn. R. Crim. P. 15.04, subd. 3(2) . At the hearing, the postconviction court
heard testimony from four witnesses: appellant’s best friend K.R., C.C., appellant, and the
prosecutor. The postconviction court denied all of appellant’s claims in an order issued on
March 1, 2022, and this court reinstate d this appeal.
DECISION
We review a denial of postconviction relief for an abuse of discretion. Crow v.
State, 923 N.W.2d 2, 9 (Minn. 2019). “A postconviction court abuses its discretion when
its decision is based on an erroneous view of the law or is against logic and the facts in the
record, or exercises its discretion in an arbitrary or capricious manner.” Id. (quotation
omitted). We review the “postconviction court’s legal determinations de novo, and its
factual findings for clear error.” Brown v. State, 895 N.W.2d 612, 617 (Minn. 2017).
6
All of a ppellant’s arguments depend on the role of work release in her plea
agreement.1 Appellant contends that her plea agreement included a promise of 365 days
of work release as inducement for the plea, which wa s violated when she had to spend a
month-and-a-half in jail. Appellant therefore asserts that her guilty plea was not valid for
four reasons: (1) appellant’s guilty plea was not knowing, intelligent, or voluntary ;
(2) ineffective assistance of trial counsel; (3) prosecutorial misconduct; and (4) the district
court violated Minn. R. Crim. P. 15.04 during the sentencing hearing. We address each
issue in turn.
I. The postconviction court did not abuse its discretion by finding that appellant’s
guilty plea was voluntary, accurate, and intelligent.

A criminal defendant does not have an absolute right to withdraw a guilty plea.
State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But under Minn. R. Crim. P. 15.05,
subd. 1, a postconviction court must allow a defend ant to withdraw a guilty plea if it is
necessary to correct a manifest injustice. A manifest injustice exists when a plea is not
constitutionally valid because it is not voluntary, accurate, or intelligent. Raleigh, 778
N.W.2d at 94. The constitutional validity of a guilty plea is a questio n of law that we
review de novo. See id.

1 Work release allows for the “continuation of . . . employment” when a defendant is
“sentenced to a term in a county jail.” 9 Minn. Prac. Series § 36:16.
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A. Work release was not an unfulfillable or unfulfilled promise that
provided material inducement for the plea.

Appellant first argues that her guilty plea was not voluntary because (1) the plea
agreement contained an unfulfillable or unfulfilled promise of work release which
(2) provided a material inducement for the plea. We disagree.
“A guilty plea cannot be induced by unfulfilled or unfulfillable promises . . . .”
State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). “ A guilty plea is involuntary when it
rests ‘in any significant degree’ on an unfulfilled or unfulfillable promise . . . .” Uselman
v. State, 831 N.W.2d 690, 693 (Minn. App. 2013) (quoting Perkins v. State, 559 N.W.2d
678, 688 (Minn. 1997)). If there is a promise that is part of a plea agreement that is not
honored, the guilty plea may be withdrawn. Kochevar v. State , 281 N.W.2d 680, 687
(Minn. 1979). However, “[w]hile the government must be held to the promi ses it made, it
will not be bound to those it did not make.” Brown, 606 N.W.2d at 674 (quotation omitted).
Whether the plea agreement contained a promise of work release is a question of
fact. A postconviction petitioner bears “the burden of proof . . . to establish the facts by a
fair preponderance of the evidence .” Minn. Stat. § 590.04, subd. 3 (2020). The
postconviction court is in the best position to evaluate witness credibility to which we defer.
Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
The postconviction court found that most of the testimony from two witnesses,
including appellant, who asserted that work release was a promise or guaranteed to her to
be not credible. But it found the testimony from two witnesses, C.C. and the prosecutor,
who asserted that work release was only available to appellant if eligible to be credible .
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This finding is supported by the record. While, at one point, C.C. told appellant that work
release was automatic or guaranteed , he eventually clarified t hat “if eligible” is “always
considered to be a part of any work release term ” and a “plea agreement never spells out
the ‘if eligible’ part.” While appellant’s plea petition references work release without
mention of “if eligible,” the state did not make any mention of work release as a term of
the agreement at the plea hearing. Moreover, the prosecutor never agreed to an
unconditional promise of work release. Additionally, even after all parties, and the district
court, were aware of the unavailability of work release at the time of sentencing, appellant
did not object or move to withdraw her guilty plea and, ultimately, the initial warrant of
commitment did not include work release . We conclude that appellant has not met her
burden to demonstrate that work release amounted to a promise made by the state as part
of the guilty-plea agreement.2
Further, the alleged “promise” of work release in appellant’s case is similar to one
related to parole eligibility in a recent case decided by this court. See State v. Bell, 971
N.W.2d 92 (Minn. App. 2022) , rev. denied (Minn. Apr. 27, 2022) . Bell argued that his
guilty plea was involuntary because it was based on an unfulfillable promise by the district
court. Id. at 104- 05. The district court provided Bell with “incomplet e information
regarding the department’s parole decision -making process” during the plea hearing, but

2 Appellant also seems to assert that her plea agreement is analogous to a contract and that
the principles of contract law dictate whether the plea agreement has been fulfilled. See In
re Ashman, 608 N.W.2d 853, 858 (Minn. 2000) (“In Minnesota plea agreements have been
analogized to contracts . . . .”). Because we conclude that work release was not a promise,
we are not persuaded by analogizing work release to a term in a contract.
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this court concluded that the “incomplete information” did not “amount[] to an affirmative
promise by the district court that the department would exclusi vely consider his in- prison
conduct as a basis for determining parole -eligibility or that good behavior alone would
guarantee his release.” Id. Similar reasoning applies here. The state asserts that any work-
release term within a plea agreement is unive rsally understood to be conditioned on
eligibility. Therefore, the work- release component of appellant’s plea agreement was not
a promise and simply included “incomp lete information” that was unobjected to by
appellant at both the plea hearing and at sent encing.
Because we conclude that work release did not amount to a n unfulfillable promise,
we need not address whether it induced appellant’s guilty plea.
B. Appellant made a knowing and intelligent guilty plea because w ork
release was not a direct consequence of the plea.

Appellant argues that she did not make an intelligent (i.e., knowingly and
understandingly made) plea because she did not know that work release was unavailable
at the time of her plea and because it is a direct consequence of the plea, her guilty plea is
invalid. We are not persuaded.
To assess the intelligence of a plea, courts consider whether the defendant
understood the charges, rights, and consequences of the plea. State v. Trott , 338 N.W.2d
248, 251 (Minn. 1983); see Williams v. State , 760 N.W.2d 8, 15 (Minn. App. 2009), rev.
denied (Minn. Apr. 21, 2009). “Counsel, however, is not required to advise the defendant
of every consequence for the defendant’s plea to be intelligent.” Taylor v. State , 887
N.W.2d 821, 823 (Minn. 2016). Rather, only direct consequences are relevan t. See id.
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(citing Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998), abrogated in part by Padilla v.
Kentucky, 559 U.S. 356, 374 (2010) ); see also Campos v. State , 816 N.W.2d 480, 485
(Minn. 2012). Direct consequences are those “which flow definitely, i mmediately, and
automatically from the guilty plea —the maximum sentence and any fine to be imposed.”
Alanis, 583 N.W.2d at 578. Collateral consequences, in contrast, are those which do not
punish, “‘serve a substa ntially different purpose ’ than to punish, and ‘are imposed in the
interest of public safety.’” Bell, 971 N.W.2d at 101 (quoting Kaiser v. State, 641 N.W.2d
900, 905 (Minn. 2002) ). A defendant’s lack of knowledge about the collateral
consequences of thei r guilty plea “does not re nder the guilty plea unintelligent and entitle
a defendant to withdraw it.” Taylor, 887 N.W.2d at 823 (Minn. 2016).
The postconviction court concluded that work release was a collateral consequence
because it is only provided “if eligible” and, therefore, appellant’s lack of knowledge about
the availability of work release “does not render the guilty plea unintelligent and entitle
[appellant] to withdraw it.” Bell, 971 N.W.2d 92 at 101 (quoting Taylor, 887 N.W.2d at
823). We agree for several reasons.
First, appellant asserts that work release is a direct consequence because an inmate
“may serve work release within the correctional facility ,” so it is still incarceration. State
ex rel. Huseby v. Roy, 903 N.W.2d 633, 637 (Minn. App. 2017). Roy, however, considered
whether an inmate participating in a work- release program had been released from prison
to start a five-year conditional-release term. Id. at 635. It did not address the validity of a
guilty plea . Id. at 635. Second, work release is not a consequence “which flow [s]
definitely, immediately, and automatically from the guilty plea .” Alanis, 583 N.W.2d at
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578. Rather, work release is a discretionary decision made by the sentencing court . See
Minn. Stat. § 631.425, subd. 2 (2022). Third, wor k release is not a punishment. Rather,
work release is referred to as a “privilege.” See, e.g., State v. Bachmann, 521 N.W.2d 886,
887 (Minn. App. 1994); State v. Larson, 393 N.W.2d 238, 243 (Minn. App. 1986) ; State v.
Wilwert, 317 N.W.2d 346, 347 (Minn. 1982).
We conclude that appellant provided a knowing and intelligent plea because she
understood the charges, rights, and direct consequences of the plea.
II. Appellant did not receive ineffective assistance of counsel.
Appellant argues that her guilty plea and conviction must be vacated because C .C.
provided appellant with ineffective assistance of counsel. We are not persuaded.
Claims of ineffective assistance of counsel in a petition for postconviction relief
present mixed questions of law and fact , and appellate courts review the postconviction
court’s decision de novo. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013). If appellant
makes a successful showing of ineffective assistance of counsel, she has demonstrated a
“manifest injustice” requiring plea withdrawal. See State v. Ellis-Strong, 899 N.W.2d 531,
541 (Minn. App. 2017).
The Sixth Amendment of the United States Constitution guarantees criminal
defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 685- 86 (1984) . We apply the two -prong Strickland test to determine whether a
defendant received ineffective assistance of counsel. Peltier v. State, 946 N.W.2d 369, 372
(Minn. 2020) . The Strickland test requires appellant to prove tha t: (1) her “counsel’s
representation fell below an objective standard of reasonableness” and (2) “there is a
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reasonable probability that, but for counsel ’s unprofessional errors, the result of the
proceeding would have been different.” Zumberge v. State, 937 N.W.2d 406, 413 (Minn.
2019) (quotations omitted). The claim must satisfy both of the Strickland prongs, so if one
prong is not met, the claim fails , and we need not apply the other prong. Swaney v. State,
882 N.W.2d 207, 217 (Minn. 2016) . Because it is dispositive, we address only the second
Strickland prong. Appellant can show prejudice by demonstrating “a reasonable
probability that, but for counsel ’s errors, [they] would not have pleaded guilty and would
have insisted on going to trial.” Campos, 816 N.W.2d at 486 (citing Hill v. Lockhart, 474
U.S. 52, 59 (1985)). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
Appellant first argues that “she would not have entered a guilty plea had she known
that she would not receive work release.” She does not cite any legal authority or facts to
support this argument, therefore, we do not consider it. See State v. Butcher, 563 N.W.2d
776, 780 (Minn. App. 1997), rev. denied (Minn. Aug. 5, 1997) (concluding that an
inadequately briefed argument is waived on appeal).
Appellant next contends that the evidence shows that she is not guilty. Specifically,
she argues that holding her phone at the time of the accident did not violate any l aw, the
state does not have any evidence indicating that she manually used her phone immediately
prior to the crash because she may have used a talk-to-text function, and the accident would
not have occurred but for decedent’s father’s speeding, as shown by the state’s evidence.
The record does not support her arguments.
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First, appellant’s argument is in direct conflict with the testimony she provided at
her plea hearing:
THE COURT: Okay. And would you agree with me that based
on your text message and your call that you were, in fact,
distracted?
THE DEFENDANT: I was distracted.
THE COURT: Okay. And you’ve indicated already that the
result of the crash ended with somebody dying; is that correct?
THE DEFENDANT: Correct.
THE COURT: And you now know that the person that died
was a 14 year old; is that correct?
THE DEFENDANT: Correct.
THE COURT: And would you agree with me that you were
not only the cause of the crash but you were the cause of his
death? Would you agree with me with that?
THE DEFENDANT: Yes.
THE COURT: And would you agree that based on the fact that
you were on your phone, and that you did not see the stop sign,
that you operated your motor vehicle in a grossly negligent
manner? Would you agree with that?
THE DEFENDANT: Yes.

Second, the postconviction court found credible the testimony from both appellant’s
attorney, C.C., and the prosecutor. We defer to the postconviction court’s credibility
determinations. See Miles , 840 N.W.2d at 201. Further, t he record supports their
testimony, including: information from interviews with the two surviving victims, three
witnesses, and appellant herself; details related to accident reconstruction ; data from the
vehicles involved ; and the results from examination of appellant’s cell phone . In sum,
appellant has not shown that there is “a reasonable probability ” that she would not have
pleaded guilty and instead would have insisted on going to trial. See Campos, 816 N.W.2d
at 486.
III. Appellant’s prosecutorial misconduct argument fails .
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Appellant argues that the prosecutor committed misconduct by “knowingly
offer[ing] the [a]ppellant a program that did not exist and thereby violat [ing] his
responsibility to both the [c]ourt and the defense.” We are not persuaded.
When, as here, the appellant failed to object, appellate courts review prosecutorial
misconduct under a modified plain -error standard. State v. Ramey, 721 N.W.2d 294, 296
(Minn. 2006) (stating when defendant fails to object at trial, they generally forfeit
consideration of prosecutorial misconduct on appeal, but reviewing court can still address
the misconduct under the plain-error doctrine). Plain error consists of (1) an error, (2) that
is plain, and (3) affects substantial rights. State v. Leake , 699 N.W.2d 312, 327 (Minn.
2005) (citing State v. Gri ller, 583 N.W.2d 736, 740 (Minn. 1998)). The appellant bears
the burden of satisfying the first two prongs of the plain-error test. Ramey, 721 N.W.2d at
302. “An error is plain if it was clear or obvious,” and plain error may be demonstrated “if
the error contravenes [caselaw], a rule, or a standard of conduct.” Id. (quotations omitted).
Because we have concluded that work release did not amount to an unfulfillable or
unfulfilled promise by the state , inducement is not at issue . As a result, the prosec utor’s
conduct does not clearly contravene any caselaw, rule, or standard of conduct. There was
no plain error. Appellant’s claim fails.
IV. The district court followed Minn. R. Crim. P. 15.04.
Appellant argues that the postconviction court erred by determining that the district
court followed the rules of criminal procedure because it “failed to honor the unqualified
promise contained in the plea agreement that . . . [a]ppellant would serve all 365 days on
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‘work release.’” Minnesota Rule of Criminal Procedure 15.04, subd. 3(2) , provides the
following:
When a plea is entered and the defendant que stioned, the
district court judge must reject or accept the plea of guilty on
the terms of the plea agreement. The court may postpone its
acceptance or rejection until it has received the results of a pre-
sentence investigation. If the court rejects the plea agreement,
it must advise the parties in open court and then call upon the
defendant to either affirm or withdraw the plea.

This argument depends on the assumpt ion that work release amounted to an
unfulfillable or unfulfilled promise. Because we con cluded otherwise above, we discern
no error by the district court or in turn by the postconviction court .
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Affirmed.

3 Appellant raises additional issues regarding various alleged errors made by the
postconviction court’s findings of fact and conclusions of law. Appellant asserts that the
postconviction court erred (1) by citing to two federal cases when it determined that there
was no liberty interest or violation under the due -process clause when appellant did not
receive work release for approximately a month -and-a-half; (2) by determining that the
loss of work release was not the result of any action from the state, appellant, or the district
court; (3) by commenting on the prejudice to the state should plea withdrawal be allowed ;
(4) by making an adverse credibility determination about appellant; and (5) by commenting
on whether appellant’s case was “moot.” We have carefully reviewed these alleged errors
and conclude that these arguments do not impact any of the above analyses.