Herald Edward Liu, 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This opinion is nonprecedential except as provided by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
A21-1008

Herald Edward Liu, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 7, 2022
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-18-5096

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the postconviction court’s denial of his request to withdraw
his guilty pleas to four counts of theft -by-swindle, arguing that his pleas were inaccurate
and therefore invalid. Because the plea -hearing record adequately supports appellant’s
guilty pleas, and because his pro se arguments do not merit relief, we affirm.
FACTS
Respondent State of Minnesota charged a ppellant Herald Edward Liu with six
counts of theft-by-swindle under Minn. Stat. § 609.52, subd. 2(a)(4) (2012). The complaint
alleged that Liu was a “licensed resident insurance producer” and that he obtained personal
loans from at least ten of his clients between April 2013 and October 2016. Th ose clients
were mostly elderly persons ranging from 74 to 90 years of age. He was alleged to have
obtained over $100,000 from one 90 -year-old client alone. The total amount of the loans
alleged in the complaint was over $200,000.
According to the complaint, Liu began asking clients for loans “because his business
was failing and he needed the money to ke ep his business going.” Clients reported that
Liu had asked them “for loans to keep his business afloat” and that he had asked “for loans
to help his business.” Many clients liquidated investments from retirement savings, trusts,
annuities, “and other financial instruments” to make the loans. Some of the clients received
promissory notes, but “[n]one of these victims had the money repaid.”
Officers spoke to Liu during the investigation, and he admitted to “taking ‘loans’
from the victims and using the money to pay his mortgage, utilities and other personal
expenses.” He stated he “used some of the money from certain victims to pay back other
victims” and acknowledged “that he has a fiduciary duty to the victims.” Investigators
obtained Liu’s bank statements and discovered that he had used “[m]ost of the money . . .
to pay cell phone bills, health insurance, internet provider bills, utility bills and other
personal expenses, including groceries and clothing.” When he received funds from other
sources, “he did not give money to most of the victims but rather, spent it on his own
personal expenses.” Investigators also found one victim’s “check book, tax information
and other financial documents” at his home.
Liu reached a plea agreement with the state. He pleaded guilty to counts one through
four of the complaint in exchange for the state’s agreement to dismiss counts five and six
and to recommend a 39 -month sentence. 1 During the plea colloquy for count 1, Liu
admitted that the individuals identifi ed in the complaint loaned him money. He also
admitted that the loans were made “with an understanding” that the “money was to be used
solely for business purposes” and that when he obtained the loans, he “in fact, had the intent
of using that money not solely for business purposes but for personal reasons as well.” He
made substantially similar admissions for counts two, three, and four.2
Liu also admitted that the amounts he took relating to each count were “in excess of
$35,000,” and that the victims were “clients” of his “estate planning, insurance” business.

1 The complaint itemized the amounts taken throughout months-long increments. Count 1
includes $40,472.45 in unrepaid loans between April 15, 2013 and September 20, 2013.
Count 2 includes $40,200 in unrepaid loans between October 25, 2013 and April 25, 2014.
Count 3 includes $42,600 in unrepaid loans between February 13, 2015 and July 14, 2015.
Count 4 includes $35,500 in unrepaid loans between August 11, 2015 and February 16,
2016. Counts 5 and 6 include $8,000 and $6,300, respectively, for unrepaid loans obtained
between March and October 2016. The complaint also listed $41,300 in loans that were
not included in any of the six counts.

2 For example, during the colloquy for count 3, he admitted that “at the time [he] obtained
those loans, [he] made the representation to [the victim] that, again, the money was to be
used solely for business purposes when, in actuality, [his] intent at the time was to use the
money for both business and personal reasons.”
He agreed that the victims loaned him money “in part because of the relationship” he had
with them. He also affirmed that he had reviewed the complaint and “that the facts
contained therein” showed that he was “guilty of theft by swindle against those victims.”
The district court accepted Liu’s guilty pleas, entered judgment of conviction on
each count, and sentenced him to 39 months on count four, with concurrent sentencing on
counts one, two, and three. Almost two years later, Liu petitioned for postconviction relief.
He sought to withdraw his guilty pleas on the ground that they were inaccurate and
therefore invalid , asserting that the plea record does not demonstrate that he had the
requisite intent. Liu requested an evidentiary hearing in a pro se affidavit.
The postconviction court denied Liu’s request to withdraw his guilty pleas ,
reasoning that all elements of theft -by-swindle were “established through [Liu’s] plea.”
The postconviction court also denied Liu’s pro se request for an evidentiary hearing ,
reasoning that his pro se submissions contained only argumentative assertions and the
record established he was not entitled to relief. Liu appeals.
DECISION
We review the denial of a petition for postconviction relief for an abuse of
discretion. Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017) ; see also Andersen v.
State, 913 N.W.2d 417, 422 (Minn. 2018) (stating the denial of an evidentiary hearing and
summary dismissal of a postconviction petition is reviewed for an abuse of discretion) . A
postconviction court abuses its discretion if it “exercised its discretion in an arbitrary or
capricious manner, based its ruling on an erro neous view of the law, or made clearly
erroneous factual findings.” Pearson, 891 N.W.2d at 596 (quotation omitted).
I.

Liu contends that he should be allowed to withdraw his guilty pleas because they
were inaccurate and therefore invalid . A defendant d oes not have an absolute right to
withdraw a guilty plea. State v. Raleigh , 778 N.W.2d 90, 93 (Minn. 2010). But a court
“must allow a defendant to withdraw a guilty plea . . . to correct a manifest injustice.”
Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists if a guilty plea is not valid.”
Raleigh, 778 N.W.2d at 94. A constitutionally valid guilty plea “must be accurate,
voluntary, and intelligent.” Id. The validity of a guilty plea is a legal issue reviewed de
novo. Id.
The accuracy requirement “protects a defendant from pleading guilty to a more
serious offense than that for which he could be convicted if he insisted on his right to trial.”
Id. The accuracy of a plea “must be established on a proper factual basis.” Id. A proper
factual basis exists if there are “sufficient facts on the record to support a conclusion that
defendant’s conduct falls within the charge to which he desires to plead guilty.” Kelsey v.
State, 214 N.W.2d 236, 237 (Minn. 1974).
Liu pleaded guilty to theft -by-swindle. A theft -by-swindle occurs when a person
“by swindling, whether by artifice, trick, device, or any other means, obtains property or
services from another person.” Minn. Stat. § 609.52, subd. 2(a)(4). The elements o f the
offense are that “(i) the owner of the property gave up possession of the property due to
the swindle; (ii) the defendant intended to obtain for himself . . . possession of the property;
and (iii) the defendant’s act was a swindle.” State v. Pratt, 813 N.W.2d 868, 873 (Minn.
2012).
A “swindle” is the act of “defrauding another person by an intentional
misrepresentation or scheme.” State v. Flicek, 657 N.W.2d 592, 598 (Minn. App. 2003).
In other words, the statute “punishes any fraudulent scheme, trick, or device whereby the
wrongdoer deprives the victim of his money or property by deceit or betrayal of
confidence.” State v. Ruffin, 158 N.W.2d 202, 205 (Minn. 1968). The swindling statute
was designed to “reach cheats and swindlers of all kinds and descriptions,” and “[n]o single
definition can cover the range of possibilities for the offense.” Id. (quotation omitted).
And it “requires a showing of affirmative fraudulent or deceitful behavior.” Flicek, 657
N.W.2d at 598.
Liu argues that the factual basis for his guilty pleas was inadequate because “the
record does not establish that he acted with intent to defraud, that his misrepresentation
was a swindle, or that his alleged victims gave up possession of their property because of
the misrepresentation.” Liu further argues that the state failed to elicit testimony regarding
his intent at the plea hearing.
Obtaining loans based on a false or misleading representation may constitute a
“swindle” because “‘permanent deprivation’ is not an element of theft by swindle.” Pratt,
813 N.W.2d at 875. At the plea hearing, Liu admitted that he obtained money from his
clients in the form of loans and that he told his clients that the funds would be used for
business purposes. He also admitted that he actually intended to use the money for personal
expenses, and not only for business purposes. Those admissions constitute sufficient
evidence that Liu engaged in “affirmative fraudulent or deceitful behavior” in obtaining
the loans. Flicek, 657 N.W.2d at 598.
Moreover, in determining the accuracy of a guilty plea, a reviewing court may
consider allegations in the complaint if the truthfulness and accuracy of the allegations
have been expressly admitted to by the defendant. Rosendahl v. State , 955 N.W.2d 294,
302 (Minn. App. 2021). We consider the allegations in the complaint in this case because
Liu expressly admitted that the facts in the complaint demonstrate his guilt.
The complaint contains statements from victims indicating that Liu asked them f or
loans “to keep his business afloat,” “to help his business,” or because “he needed the money
to keep his business going.” The complaint also states that Liu used the money to pay for
personal expenses and did not repay the loans despite giving promisso ry notes to some of
the victims and despite obtaining money from other sources. Those facts demonstrate that
Liu intentionally and affirmatively misrepresented his need for the funds, as well as his
intended use of the funds, and support a conclusion that Liu thereby perpetrated a
fraudulent scheme to deprive the victims of their money “by deceit or betrayal of
confidence.” Ruffin, 158 N.W.2d at 205.
Liu argues that he “must have done more than merely misrepresent what he intended
to do with the money” and that he “must have had the specific intent to obtain [the victims’]
money and not pay it back.” Liu asserts that “he demonstrated an intent to repay his debt
by making small repayments to some of his clients” and that “[h]is past conduct also
demonstrates an intent to repay his debts.”
Once again, the essence of our inquiry when considering a challenge to the factual
basis for a guilty plea is whether there are “sufficient facts on the record to support a
conclusion that defendant’s conduct falls wit hin the charge to which he desires to plead
guilty.” Kelsey, 214 N.W.2d at 237. “[I]f an element to an offense is not verbalized by the
defendant, a district court may nevertheless draw inferences from the facts admitted to by
the defendant.” Rosendahl, 955 N.W.2d at 299 (emphasis omitted) (reviewing plea record
for evidence that would support an inference of intent necessary to support a guilty plea).
Here, the record —including the admitted allegations in the complaint —supports an
inference that Liu never intended to pay his victims back.3
Liu also argues that his convictions violate the Minnesota Constitution’s prohibition
on imprisonment for failure to repay a debt. See Minn. Const. art. I, § 12 (“No person shall
be imprisoned for debt in this state . . . .”). But section 12 states that the provision against
imprisonment for debt “shall not prevent the legislature from providing for imprisonment,
or holding to bail, persons charged with fraud in contracting said debt.” Id. In the case of
fraud, the “imprisonment . . . is for the fraud and not for the debt.” Wojahn v. Halter, 39
N.W.2d 545, 548 (Minn. 1949). Because Liu’s convictions for theft -by-swindle are
premised on the misrepresentation he made in procuring the loans, and not for t he failure
to repay them, the convictions are constitutionally sound. See Ruffin, 158 N.W.2d at 205
(stating the theft -by-swindle statute punishes the defendant for the “fraudulent scheme,
trick, or device” used to procure money or property).

3 Indeed, when Liu informed the district court, at sentencing, that he intended to pay the
victims back, the district court responded, “I find it very hard to believe that your intention
was always to pay this money back. There’s no indication of that. There’s indication of a
pattern of accumulating additional victims and stringing them along for more and more
money.”
In sum, the plea -hearing record establishes that Liu’s behavior “falls within the
charge” of theft-by-swindle. Kelsey, 214 N.W.2d at 237. Thus, Liu’s guilty pleas are valid,
and the postconviction court did not abuse its discretion by ruling that Liu could not
withdraw them.
II.
Liu raises additional issues in a pro se supplemental brief. He contends that the
postconviction court erred by summarily dismissing his postconviction petition and by
denying his pro se request for an evidentiary hearing. He also suggests that the heightened
standard used to assess the validity of an Alford plea applies to his case. See Doe 136 v.
Liebsch, 872 N.W.2d 875, 879 (Minn. 2015) (“ An Alford plea is a plea in which an
individual accused of a crime may voluntarily, knowingly, and understandingly consent to
the imposition of a prison sentence while not admitting guilt. ” (quotation omitted)).
Finally, he suggests that his trial attorney’s representation was ineffective because he did
not challenge probable cause for the charges.
As to the summary dismissal, Liu argues that the postconviction court did not
properly consider the allegations in his pro se postconviction petition when denying relief
without a hearing. When determining whether an evidentiary hearing is re quired, a
postconviction court must consider “the facts alleged in the petition as true and construe[]
them in the light most favorable to the petitioner.” Andersen, 913 N.W.2d at 422 -23
(quotation omitted). An evidentiary hearing is not required if “the files and records of the
proceeding conclusively show that the petitioner is entitled to no relief.” Id. at 422
(quotation omitted). The files and records supporting Liu’s guilty pleas conclusively show
that he is not entitled to relief on his claim th at his pleas were inaccurate, even when the
facts in his petition are construed in his favor . He therefore was not entitled to an
evidentiary hearing.
Liu’s suggestion that the accuracy of his guilty pleas should be analyzed under the
heightened standard that applies to an Alford guilty plea is similarly unavailing. An Alford
plea is appropriate when a defendant maintains his innocence, but otherwise “reasonably
believes, and the record establishes, the state has sufficient evidence to obtain a
conviction.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing North Carolina v.
Alford, 400 U.S. 25, 37 (1970) ). “[C]areful scrutiny of the factual basis for the plea is
necessary within the context of an Alford plea because of the inherent conflict in pleading
guilty while maintaining innocence.” State v. Theis , 742 N.W.2d 643, 648 -49 (Minn.
2007). But the record shows that Liu did not proffer an Alford plea and did not maintain
his innocence at the plea hearing.
As to Liu’s suggestion that his trial attorney was ineffective because he did not
challenge probable cause for the charges, a court reviews a claim of ineffective assistance
of counsel under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To
obtain relief under the Strickland test, a defendant must prove that counsel ’s assistance
“failed to meet the standard of a reasonably competent criminal defense attorney” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors,” a different
verdict would have been reached. State v. Smith , 476 N.W.2d 511, 514 (Minn. 1991)
(quotation omitted) . An appellate court “need not address both the performance and
prejudice prongs if one is determinative.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn.
2003).
When assessing whether there is probable cause for a criminal charge, a court
determines “whether the evidence worthy of consideration brings the charge against the
prisoner within reasonable probability.” State v. Gayles, 915 N.W.2d 6, 11-12 (Minn. App.
2018) (quotation omitted); see also State ex rel. Hastings v. Bailey, 116 N.W.2d 548, 551
(Minn. 1962) (noting that at a preliminary hearing, the state need not prove guilt beyond a
reasonable doubt).
Liu asserts that count two of the complaint should have been dismissed for lack of
probable cause based on evidence in his postconviction submissions that purportedly
shows that one $6,000 loan falls outside the charged date range. But Liu admitted that the
facts in the complaint demonstrated that he was guilty of the charges. He also expressly
admitted that the amount of money he swindled from the victims related to each charge
was in excess of $35,000. Moreover, our conclusion that the record establishes that Liu’s
conduct falls within the charged offense shows that the evidence worthy of consideration
brought the charges against him within a reasonable probability . Thus, there is no
reasonable probability that Liu was harmed by his attorney’s failure to challenge probable
cause, and his ineffective -assistance-of-counsel claim fails under the second part of the
Strickland test.
We have reviewed Liu’s remaining pro se arguments and conclude that none
provides a basis for appellate relief. See Ture v. State , 681 N.W.2d 9, 20 (Minn. 2004)
(rejecting pro se arguments without detailed discussion). The postconviction court
therefore did not err by denying Liu’s pro se claims.
Affirmed.