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This opinion is nonprecedential except as provided by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
A22-0534

State of Minnesota,
Respondent,

vs.

Saliou Kouyate,
Appellant.

Filed June 26, 2023
Reversed and remanded
Bryan, Judge

Anoka County District Court
File No. 02-CR-20-1187

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

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

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the d enial of his postconviction petition , arguing that he was
entitled to a new plea-withdrawal hearing under the fair and just standard with conflict -free
counsel. We agree with appellant that his plea counsel had a conflict of interest at the time
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appellant made a presentence request to withdraw his guilty plea. We reverse the denial of
his postconviction petition and remand for a new plea -withdrawal hearing with conflict -
free counsel.
FACTS
On July 29, 2020, appellant Saliou Kouyate pleaded guilty to third-degree criminal
sexual conduct in violation of Minnesota Statutes section 609.344, subdivision 1(d) (Supp.
2019). Kouyate signed a plea petition and reviewed it on the record with counsel. He also,
under oath, provided a factual basis for the plea. The district court accepted the plea and
immediately ordered Kouyate ’s release pending a sentencing hearing, which was
eventually scheduled for November 13, 2020. On that date, Kouyate requested a
continuance of his sentencing hearing so that he could obtain new counsel and seek
withdrawal of his plea. Kouyate’s counsel explained to the district court that she could not
fully advocate for plea-withdrawal. Counsel did indicate that she could advance Kouyate’s
request “in certain ways,” but counsel explained that Kouyate “ does not want me to file
that motion.” Counsel stated that s he thought Kouyate “ would like to argue some things
further than what I thought had merits.” At one point, the district court stated that “Kouyate
is saying that he was forced into pleading and he wants to withdraw his plea .” The district
court also stated that “Kouyate wanted to fire [counsel] and withdraw his plea.” The district
court granted the continuance to allow Kouyate time to retain substitute counsel.
In a January 2021 letter to the court, Kouyate’s counsel request ed another
continuance of the sentencing hearing because Kouyate was still gathering “the funds to
pay for a private attorney.” On this same day , counsel also filed a motion on Kouyate ’s
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behalf requesting to withdraw his plea. In this motion, counsel noted that Kouyate
requested to withdraw his plea “because he is innocent” and his attorney told him that if he
did not plead guilty, he was “ going to prison.”
At the subsequent sentencing hearing on January 25, 2022, 1 Kouyate had not yet
obtained substitute counsel, so his original plea counsel continued to represent him. At the
outset of the hearing, Kouyate’s counsel noted that Kouyate wanted to withdraw his guilty
plea, but counsel explained that, in her opinion, the plea was valid:
[T]his is his motion, I think when we entered the plea he made
a knowing and voluntary waiver of his rights when he entered
his plea. We went through a very thorough waiver on the
record, as the Court may have recalled. So, again, this is his
motion. I don’t know what else he ’ll want to let the Court
know about that.

Kouyate also personally addressed the court. Kouyate stated that he “wasn’t really willing
to enter no plea deal or anything . . . [he] didn’t want to do it, that [he] wanted to go through
with the trial and see the end of it.” Kouyate explained, “I know that I’m innocent . . . [b]ut
it looked like to me that my attorney didn’ t really look like she wanted to fight for me
anymore.” The district court denied the plea -withdrawal motion, observing that “the
prejudice to the State is extreme at this point, ” and that there was “a complete and total
waiver here.” The district court proceeded to sentencing and denied Kouyate’s motion for
a downward dispositional departure. The district court sentenced Kouyate to 41 months in
prison followed by a ten-year term of conditional release. Kouyate appealed his conviction.

1 The district court rescheduled the sentencing hearing to February 9, 2021, but Kouyate
did not appear on that date , and a warrant was issued for his arrest. Kouyate was
apprehended in January 2022 and appeared in custody at the January 25, 2022 hearing.
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Kouyate requested a stay of his direct appeal in order to petition for postconviction
relief. This court granted the stay . In his petition for postconviction relief, Kouyate
requested an evidentiary hearing to substantiate the claims raised in the petition—including
the claims that the guilty plea was not voluntary or intelligent. Kouyate also argued that in
the alternative, the district court should grant him a new plea -withdrawal hearing, under
the fair and just standard, because his counsel had a conflict at the time of the November
13, 2020 and January 25, 2022 hearings when Kouyate requested to withdraw his plea.
The postconviction court denied his petition without a n evidentiary hearing based on its
determination that there were no disputed issues of fact to justify an evidentiary hearing
regarding the voluntariness and intelligence of the plea. In addition, the postconviction
court rejected Kouyate’s argument that his counsel had a conflict of interest: “[N]o conflict
of interest existed that prohibited [Kouyate’s] trial attorney from adequately representing
him at the hearing on the motion to withd raw his guilty plea.” Kouyate filed a motion
requesting reinstatement of his appeal. This court granted the reinstatement request.
DECISION
Kouyate argues that his counsel’s statements on November 13, 2020, and January
25, 2022, indicate a conflict of interest and that , pursuant to binding authority, this court
should remand for a new plea -withdrawal hearing with conflict-free counsel. We agree
with Kouyate and conclude that his counsel made c omments prior to sentencing which
required the district court to determine whether an impermissible conflict existed before
addressing the merits of the plea -withdrawal motion . Because the district court did not
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make any such determination at that time, we remand to the district court to permit Kouyate
to request plea-withdrawal with the assistance of conflict-free counsel.2
The federal and state constitutions guarantee the right to the effective assistance of
counsel in criminal proceedings. U.S. Const. amend. VI; Minn. Const. art. I, § 6; Strickland
v. Washington, 466 U.S. 668, 686 ( 1984); Taylor v. State , 887 N.W.2d 821, 823 (Minn.
2016). To establish ineffective assistance of counsel, the defendant must show that
counsel’s performance was objectively unreasonable and that “the def icient performance
prejudiced the defense.” Strickland, 466 U.S. at 687-88. This court reviews ineffective
assistance of counsel claims involving application of the Strickland test de novo. State v.
Mosley, 895 N.W.2d 585, 591 (Minn. 2017). The right to effective assistance of counsel
includes a “correlative right” to conflict-free counsel, Wood v. Georgia, 450 U.S. 261, 271
(1981), and a defendant can establish the deficient performance prong of Strickland by
demonstrating that counsel had a conflict of interest, State v. Paige, 765 N.W.2d 134, 140
(Minn. App. 2009) . “A conflict of interest exists if ‘ there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer ’s
responsibilities to anot her client, a former client or a third person, or by a personal interest
of the lawyer.’” Paige, 765 N.W.2d at 140 (quoting Minn. R. Prof. Conduct 1.7(a)(2)).

2 Kouyate alternatively requested postconviction relief regarding the voluntariness and
intelligence of the plea, issues that, in this case, may have required development of the
record given the factual statements in the petition concerning the circumstances of the plea.
Given our decision, however , we need not review these alternative arguments. While we
decline to reach the merits of these issues, Kouyate’s right to pursue these claims in a
subsequent petition for postconviction relief is preserved. See State v. Gustafson, 610
N.W.2d 314, 321 (Minn. 2000).
6
A defendant who raised no objection to counsel’s representation must demonstrate
that counsel “actively represented conflicting interests” and that th e conflict “adversely
affected [the] lawyer ’s performance.” Cooper v. State, 565 N.W.2d 27, 32 (Minn. App.
1997) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)), rev. denied (Minn. Aug.
5, 1997). W hen an attorney’s statements inform the district court of a probable risk of
conflict, however, the district court is required to determine whether a conflict exist s. Id.
If the district court “f ails to take adequ ate steps to ascertain whether an impermissible
conflict exists, the defendant ’s conviction must be reversed without inquiry into prejudice
resulting from the alleged conflict.” Id. (citing Holloway v. Arkansas, 435 U.S. 475, 484,
488-89 (1978) and United States v. Fish , 34 F.3d 488, 492 (7th Cir.1994)).
This court has held that when a defendant made clear his desire to withdraw a guilty
plea and defense counsel did not file the requested motion or make any arguments on his
client’s behalf in support of this request, the conduct of defense counsel was “sufficient to
bring the district court’s attention to the fact that a potential conflict of interest existed.”
Paige, 765 N.W.2d at 140-41. In that case, the defendant pleaded guilty to second-degree
murder, but prior to sentencing wrote a letter to the court indicating that he wanted to
withdraw his plea and fire counsel, stating that he only pleaded guilty because of counsel’s
“verbal coercion and persuasion.” Id. at 136-37. Counsel appeared with P aige at
sentencing and stated that he was “a little bit in a difficult position in terms of what [he
could] and [could not] do in this case” because of Paige’s allegations that counsel was
ineffective. Id. This court determined that counsel’s comments were sufficient to bring
the district court’s attention to the fact that a potential conflict of interest existed and ,
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pursuant to Cooper, required the district court to take adequate steps to determine whether
a conflict existed. Id. at 141. This court also concluded that the district court did not follow
the requirement set forth in Cooper and did not provide Paige with substitute counsel. Id.
As a result, w e remanded the case for a new plea -withdrawal hearing with conflict -free
counsel. Id. at 142.
We conclude that here, as in Paige, counsel’s statements and conduct here were
sufficient to “bring the district court’s attention to the fact that a potential conflict of interest
existed.” 765 N.W.2d at 141. Defense counsel explained that Kouyate wanted to withdraw
his plea, but rather than advocate for this request, counsel emphasized disagreement with
the request, going so far as to expressly question the merits of the request. At the January
25, 2022 hearing, counsel defended her performance and her belief that the plea was valid.
Once counsel did so, the holdings in Cooper and Cuyler required the district court to take
steps to determine whether counsel could continue to effectively represent Kouyate. The
district cour t did not take the required steps , and Kouyate is entitled to a new plea -
withdrawal hearing with conflict -free counsel.3
The state argues that the supreme court’s holding in Butala v. State , 664 N.W.2d
333 (Minn. 2003) compels a different result, but we a re not convinced for two reasons.
First, Butala argued his lawyers provided ineffective assistance through their conduct and
advice during plea negotiations, not that his lawyers acted in conflict with his interests

3 Because Kouyate requested withdrawal of his plea prior to sentencing , he is entitled to
have his withdrawal motion consider ed under Minnesota Rule of Criminal Procedure
15.05, subdivision 2 (permitting withdrawal “if it is fair and just to do so”).
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pursuant to Cooper or Cuyler. Butala, 664 N.W.2d 341- 42. Second, and more
substantively, defense counsel representing Butala “declined to speak ” and “stepped
aside.” Id. at 337. In contrast, Kouyate’s counsel actively argued against Kouyate’s stated
interest, adversely affect ing counsel’s ability to advocate for plea withdrawal. For these
reasons, we follow Paige, Cooper, and Cuyler. Kouyate was not provided an opportunity
to fully litigate his plea-withdrawal claim with the assistance of conflict-free counsel.
As in Paige, we reverse the denial of Kouyate’s petition for postconviction relief
and re mand to the district court for another plea-withdrawal hearing with conflict -free
counsel.4
Reversed and remanded.

4 Given our decision, we need not address Kouyate’s argument that the district erred in
denying his dispositional departure motion. Kouyate’s right to pursue this argument should
the district court deny his request to withdraw his plea on remand is preserved. See
Gustafson, 610 N.W.2d at 321. We also note that Kouyate’s conviction remains intact
pending the district court’s determination on his plea -withdrawal motion. See State v.
Kaiser, 469 N.W.2d 316, 320 (Minn. 1991) (reversing this court, reinstating the
defendant ’s conviction, and remand ing for another plea -withdrawal hearing because the
district court erred by not letting the defendant testify about his lawyer ’s ineffectiveness at
the initial plea-withdrawal hearing).