Douglas Wayne Braker, 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This opinion is nonprecedential except as provided by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
A21-1224

Douglas Wayne Braker, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 23, 2022
Affirmed
Jesson, Judge

Cass County District Court
File No. 11-CR-18-1967

David R. Lundgren, Adam T. Johnson, Lu ndgren & Johnson, PSC, Minneapolis,
Minnesota (for appellant)

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

Considered and decided by Wheelock, Presiding Judge; Jesson, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Facing six counts of criminal sexual conduct for allegedly abusing his
step-granddaughter, appellant Douglas Wa yne Braker was given a choice by the
prosecution: plead guilty to either one count of first-degree criminal sexual conduct or one
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count of second-degree criminal sexual conduct. Both options anticipated a motion for a
downward dispositional departure by Braker. Because his a ttorneys believed Braker was
unwilling to admit to multiple sexual acts—a ne cessity for pleading guilty to the second-
degree criminal sexual charge—they explained to Braker that plea ding guilty to first-
degree criminal sexual conduct was in his best interest. Braker did so. The district court
accepted the guilty plea, but at sentencing it denied the dispositional departure and imposed
a 144-month sentence.
Braker petitioned for postconviction relief pr imarily to argue that his plea was
tainted by ineffective assistan ce of counsel. Following an evidentiary hearing, the
postconviction court denied Braker’s motion. Braker appeals. Because the postconviction
court found Braker’s attorney s credible and, regardless, the advice to plead guilty
amounted to trial strategy, we affirm.
FACTS
Braker’s step-granddaughter worked in Braker’s gunsm ith shop. At times, she
stayed overnight at his house. When step-g randdaughter was in fourth grade, Braker
sexually assaulted her at his workshop. During a portion of Braker’s guilty plea colloquy,
respondent State of Minnesota asked him about an instance where he inserted his finger
into step-granddaughter’s vagina in his workshop.
STATE: And at the time she wa s under the age of 16 years
of age, is that correct?
BRAKER: Yes.
STATE: And you did so . . . wi th the intent to gain some
sexual arousal, pleasure in doing so, is that
correct?
BRAKER: Yes.
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Other allegations from the complaint (which he did not admit to at the plea hearing)
included when Braker had step-granddaughter st and on a table, slid her underwear to the
side, and inserted a coin partially into her vagina. Another night, while they shared a bed,
Braker placed something into step-granddaughter’s vagina “that was not his hands”
according to the complaint. By October 20 17, when she was 11, step-granddaughter no
longer spent the night at Braker’s house.
When she was 12 years old, step-grandda ughter reported Braker’s sexual contact.
The state charged Braker with three counts of first-degree criminal sexual conduct and
three counts of second-degree criminal sexual conduct stemming from alleged sexual acts
against his step-granddaughter.
The two contested counts are counts II a nd VI. Count II was first-degree criminal
sexual conduct (sexual penetration of a victim under the age of 16, significant relationship)
in violation of Minnesota Statutes section 609.342, subdivision 1(g) (2014). Count VI was
second-degree criminal sexual conduct (sexual penetration of a victim under the age of 16,
significant relationship, multiple acts) in violation of Minnesota Statutes section 609.343,
subdivision 1(h)(iii) (2014).
The state communicated alternative settle ment offers. The first proposal was a
guilty plea to one count of seco nd-degree criminal sexual c onduct and a dismissal of the
remaining counts. This would have resulted in a presumptive sentence of 90 to 108 months
based on the Minnesota Sentencing Guidelines, registration as a predatory offender for life,
and a ten-year conditional-release period. Th is offer assumed that Braker would file a
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motion for a downward dispositional departure. The second proposal was a guilty plea to
one count of first-degree criminal sexual conduct and a dismissal of the remaining counts.
Based on the Minnesota Sentencing Guidelines , this count would have a presumptive
sentence of 144 to 172 months , registration as a predatory offender for ten years, and a
ten-year conditional-release peri od. This offer contemplated that Braker would file a
motion for a statutory stay of execution under Minnesota Statutes section 609.342,
subdivision 3 (2018). Ultimately, Braker acce pted the second offer and pleaded guilty to
first-degree criminal sexual conduct.
Before sentencing, Braker filed a motio n for a dispositional departure and for the
district court to stay the execution under Minnesota Statutes section 609.342 (2018). The
motion highlighted his particular amenability to probation to support the departure.
At sentencing, the district court accepted the guilty plea and executed a 144-month
sentence. The district court denied the motion for a dispositional departure, reasoning that
Braker was “minimizing [his] behavior and . . . not completely grasping the consequences
of [his] actions.”
Braker petitioned for postconviction relief, alleging that he was not informed of the
first plea offer (the option to plead guilty to second-degree criminal sexual conduct), and
that his plea deal was tainted by ineffective assistance of counsel. He requested—and was
granted—an evidentiary hearing.
At the hearing, Braker’s two trial attorn eys (his primary trial attorney J.G. and
another attorney D.A.) and Braker all testified. J.G. explai ned that he believed pleading
guilty to first-degree criminal sexual conduct was Braker’s best option because “there was
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never a chance that Mr. Braker was ever going to plead guilty to multiple acts . . . kind of
a non-starter.” And he explained that there would be a benefit in asking for a departure
from a count with a higher prison sentence because it would give the district court a “thumb
on the scale” to ensure Braker would follow the terms of a potential probation. J.G. also
justified using the statutory departure approach because it might look better to the district
court to see that “the legislature itself thought a first-degree sex case involving these facts
was determined by the legislature to be grounds for a departure.”
Although he could not recall the exact timeline, D.A. confirmed that Braker would
not admit to multiple acts of se xual abuse. D.A. also stre ssed that he had a conversation
with Braker that explicitly mentioned the alternative plea offer, including the prison terms
and other differences between the offers. D.A. testified that in his conversation with Braker
to discuss the “risk of both counts,” Braker allegedly claimed he would “have to lie about
what he had done” if he pleaded guilty to multiple acts.
The postconviction court denied the petition for postc onviction relief for three
reasons. First, it credited the attorneys’ tes timony, finding that Br aker’s testimony was
“self-serving, and that the evidence indicates he was advised of th e alternatives by his
counsel.” Second, the court acknowledged c ounsel’s concerns “that [Braker] may have
had issues providing a sufficient factual basis” to support pleading guilty to multiple acts
of criminal sexual conduct. Third, as to th e advice recommending he plead guilty to the
first-degree count rather than the second-de gree count and seek a dispositional departure
under Minnesota Statutes section 609.342, the court found this to be a “tactical” choice to
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convince the district court to grant a dispositional depa rture and not a legal error. 1 The
postconviction court then concluded that Braker failed to establish a reasonable probability
that, but for his attorneys’ conduct the result of the proceeding would have been different.2
Braker appeals.
DECISION
Braker contends that the postconviction c ourt erred in denying his claim that he
received ineffective assistance of counsel when he pleaded gu ilty to first-degree criminal
sexual conduct.
We review a postconviction court’s denial of a postconviction petition for relief for
an abuse of discretion. Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015). And we will
not reverse a postconviction court’s denial of a petition for relief unless the court “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.” Reed v. State, 793 N.W.2d 725, 729
(Minn. 2010).
To succeed on an ineffec tive-assistance-of-counsel cl aim, Braker must first
establish that his “counsel’s representa tion fell below an obj ective standard of
reasonableness.” Strickland v. Washington , 466 U.S. 668, 688 (1984). Review of
counsel’s performance under this prong is “highly deferential.” Id. at 689. Under this

1 The district court also determ ined that there was no evidence to support that the district
court would have accepted a guilty plea to second-degree criminal sexual conduct.
2 The postconviction court also denied Braker’s assertion that, had he succeeded in
demonstrating an ineffective-assistance-of-c ounsel claim, that the remedy would be a
vacation of his sentence and the ability to accept the alternative plea offer.
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prong we do not review conduct th at “falls within trial strategy.” Andersen v. State ,
830 N.W.2d 1, 13 (Minn. 2013) (Andersen I). Second, Braker must demonstrate that “there
is a reasonable probability that, but for coun sel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. In the plea bargain
context, a defendant may show prejudice if there is a reasonable likelihood that he would
have rejected the plea agreement ha d he received proper advice. See Leake v. State ,
737 N.W.2d 531, 540 (Minn. 2007).
Braker makes two primary arguments to support his ineffective-assistance-of-
counsel claim: (1) that the record supports that he was willing to admit to multiple acts of
criminal sexual conduct; and (2) that the postconviction court erred when concluding that
much of Braker’s attorneys’ advice amounted to trial strategy. We review these assertions
in turn.
Multiple Acts
Braker first argues that his trial counsel erroneously believed that he was unwilling
to admit to multiple acts of criminal sexua l conduct—an objectively unreasonable belief
that resulted in ineffective assistance of counsel.
Here, Braker alleged in his postconviction affidavit that he was also willing to plead
guilty to multiple acts of criminal sexual conduct because between the time of the charges
and the time of his plea he had “started changing . . . and maturing” during his treatment.
But Braker’s attorneys testifie d that his pleading guilty to second-degree criminal sexual
conduct at the time of the plea offer was a “non-starter” because the count comprised
multiple acts. The postconviction court considered the conflicting testimony of Braker and
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his trial attorneys and made detailed findings regarding these claims, including that the
attorneys’ testimony was more credible. Nothing in the reco rd gives us a “definite and
firm conviction” that the pos tconviction court’s findings we re mistaken on this point.
State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010) (Andersen II).3
To persuade us otherwise, Braker points to his psychosexual evaluations and two
letters from his outpatient sex-offender treatment to verify that he was willing to admit to
multiple acts of criminal sexual conduct. His psychosexual evaluations were completed in
February and May of 2019—both before he pleaded guilty in July 2019. Braker notes that
during these evaluations he described and admitted to multiple instances of inappropriate
touching. And the letters from the outpatient treatment facility from June and September
2019 explained that Braker was making progress in his treatment.

3 Braker makes two additional arguments in passing that his trial counsel was ineffective:
(1) that he was not informed about the offer to plead guilty to seco nd-degree criminal
sexual conduct, and (2) that he did not care about the length of predatory-offender registry,
so trial counsel’s justifica tion that a short predatory-o ffender registration period made
pleading to first-degree criminal sexual conduc t better was improper. Braker testified at
the evidentiary hearing that he was never informed about the offer to plead guilty to
second-degree criminal sexual conduct. His attorneys testified that they did inform Braker
of both possibilities. The postconviction c ourt made detailed find ings regarding these
claims and credited his attorneys’ testim ony. We defer to a postconviction court’s
credibility assessment. Miles v. State , 840 N.W.2d 195, 201 (M inn. 2013). Braker
presented no evidence to demonstrate that his counsel’s representation fell below an
objective standard of reasonableness other than his allegations at the evidentiary hearing.
See Griffin v. State , 941 N.W.2d 404, 408-09 (Minn. 2020) (concluding that in finding a
trial counsel’s testimony more credible than th e appellant, there is no error in denying an
ineffective-assistance-of-counsel claim). A nd considering Braker had the knowledge of
the alternative plea deal, the choice between them amounts to trial strategy, which we do
not review. Andersen I, 830 N.W.2d at 13. As for Braker’s claim that he did not care about
the length of predatory-offender registration, that assertion is not supported by the record.
State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014).
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But none of these documents demonstrate that Braker was willing to admit to having
sexual intent in any of the instances of contac t. For example, in his second psychosexual
evaluation Braker described his “first incide nt” of sexual abuse as occurring when the
ten-year-old victim requested a massage. He acknowledged, “my fingers were in the area
of her breasts” but he denied sexual intent. And during the evaluation, he also admitted to
touching his step-granddaughter while she wa s in his workshop—first on her chest and
escalating to touching her vaginal area—but claimed that it was in a search for wood ticks.
The psychosexual evaluator wrote that Braker “denied any sexual intent with regard
to the victim, at any time.” 4 And sexual intent is a crucia l element for e ither count of
criminal sexual conduct. The record does not support Brak er’s contention that he was
willing to admit to having sexual intent with respect to multip le acts of criminal sexual
conduct.
Trial Strategy
Braker, in addition to arguing that his c ounsel was ineffective based on their plea
recommendation, argues his attorneys—spec ifically J.G.—were ineffective on an
additional legal ground: a lega lly erroneous belief that the statutory basis for departure
made a sentencing departure more likely. In the first-degree criminal-sexual-conduct
context, a district court has discretion to issu e a stay of imposition or execution if it finds
that a stay is in the best interest of the family unit, and that an offender has been accepted

4 We observe that both psychosexual evaluations occurred before Braker entered his guilty
plea. By the time of the plea hearing, Braker did admit to having sexual intent during the
sole incident of criminal sexual conduct to which he pleaded guilty.
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by and can respond to a treatment progr am. Minn. Stat. § 609.342, subd. 3. 5 Explaining
why he sought a statutory stay, J.G. testifie d that pursuing a stay through a tool designed
specifically by the legislature would be more pe rsuasive to the district court than using a
standard departure.
This decision amounts to trial strategy, which we do not review on appeal.
Andersen I, 830 N.W.2d at 13. J.G. believed the di strict court would be more persuaded
by the legislature-created option than one by the sentencing guidelines commission. Even
if a statutory stay might, in some circumstances, be less likely than a guidelines departure
because the defendant must show participation in treatment, taking that calculated risk is a
matter of trial strategy for the trial attorneys and defendant. Because the choice to advocate
for a statutory departure amounted to trial strategy, J.G. did no t provide ineffective
assistance by advising Braker to pursue this option.
In sum, the record supports the trial attorneys’ concern about Braker’s unwillingness
to plead guilty to multiple acts of criminal sexual conduct. It further demonstrates that
Braker’s trial attorneys believed that a statutory stay would be more attractive to the district
court, which amounts to trial strategy. Accordingly, the postconviction court properly

5 In comparison to the statutory stay, the Minn esota Sentencing Guidelines afford district
courts more discretion. A sentencing court can exercise its discretion to depart from the
guidelines by focusing on a defendant’s individual characteristics and what sentence would
be best for the defendant and society. State v. Heywood , 338 N.W.2d 243, 244 (Minn.
1983). The guidelines provide a nonexclusive list of mitigating factors that may warrant a
dispositional departure, including when the defendant is “particularly amenable to
probation.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014). But the presence of
mitigating factors does not obligate the di strict court to grant a departure. Wells v. State,
839 N.W.2d 775, 781 (Minn. App. 2013).
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concluded that Braker’s trial attorneys’ representation did not fall below an objective
standard of reasonableness. See Jackson v. State , 817 N.W.2d 717, 722 (Minn. 2012)
(stating that we can dispose of an ineffectiv e-assistance-of-counsel claim if one prong is
not met). The postconviction court did not abuse its discretion by denying Braker’s petition
for postconviction relief when concluding th at he did not establish an ineffective-
assistance-of-counsel claim.6
Affirmed.

6 Braker also raised an issue about the proper remedy should we find his attorneys’
assistance ineffective. Because we conclude that Braker received effective assistance of
counsel, we need not address this issue.