Randall Ferrell Decker, 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This opinion is nonprecedential except as provided by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
A22-0940

Randall Ferrell Decker, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 20, 2023
Affirmed
Johnson, Judge

Faribault County District Court
File No. 22-CR-12-508

Thomas K. Hagen, Kate R. Cartier, Kohlmeyer Hagen Law Office, Chtd., Mankato,
Minnesota (for appellant)

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Cameron Davis, Faribault County Attorney, Blue Earth, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Bratvold, Judge; and Florey,
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2014, a Faribault County jury found Randall Ferrell Decker guilty of six counts
of criminal sexual conduct. In 2021, Decker petitioned for post-conviction relief and
asserted a claim of ineffective assistance of counsel. Decker alleged that his trial attorney
did not inform him of a plea offer that the prosecutor had made and further alleged that he
would have accepted the plea offer if he had been informed of it. The post-conviction court
denied the petition for multiple reasons after conducting an evidentiary hearing at which
Decker testified. We conclude that the post -conviction court did not clearly err in its
findings of fact and did not err by denying the petition. Therefore, we affirm.
FACTS
In August 2012, Decker ’s minor daughter stated to a police officer that her father
had sexually abused her repeatedly for approximately two years. The state charged Decker
in an amended complaint with seven counts of first-degree criminal sexual conduct, in
violation of Minn. Stat. § 609.342, subd. 2(a) (2010), and three counts of second- degree
criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 2(a) (2010).
After a four-day trial in June 2014, a jury found Decker guilty of three counts of
first-degree criminal sexual conduct and three counts of second- degree criminal sexual
conduct. In September 2014, the district court imposed concurrent prison sentences for
five of the convictions, the longest of which is 360 months, and a probationary sentence of
25 years for the sixth conviction. This court affirmed the convictions on direct appeal .
State v. Decker, No. A14-2070, 2015 WL 4611981 (Minn. App. Aug. 3, 2015).
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In July 2019, Decker filed a pro se motion for an order compelling his trial attorney
to produce the attorney’s case file to him. In August 2019, Decker’s trial attorney
responded to the motion by stating that he recently had given Decker all the documents in
his file and by filing a three-page affidavit. In the affidavit, the trial attorney described the
evidentiary phase of the trial and included the following statements: “Before the case went
to the jury, the prosecutor offered the defendant a plea in which the defendant would plead
guilty to two charges, serve 6 years and register. The defendant rejected this plea offer. ”
Decker later withdrew his motion because he had received the trial attorney’s file.
Two years later, in August 2021, Decker petitioned for post-conviction relief, with
the assistance of new counsel. Decker alleged that, until he read his trial attorney ’s
affidavit in August 2019, he was unaware that the state had made a plea offer to his trial
attorney. He further alleged that he would have accepted the plea offer if he had been
aware of it. In an accompanying memorandum of law, Decker argued that he was denied
his constitutional right to the effective assistance of counsel. He requested an evidentiary
hearing.
The post-conviction court held an evidentiary hearing in March 2022. Decker was
the only witness. Consistent with his petition, he testified that he was unaware until August
2019 that the state had made a plea offer to his trial attorney and that he would have
accepted the plea offer if he had been aware of it. On cross-examination, Decker testified
that, since receiving his trial attorney’s aff idavit in August 2019, he had not sought or
received any additional information from the trial attorney about the state’s plea offer.
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On direct examination, Decker also testified that his then-girlfriend and his son
attended “every one of” his meetings with his trial attorney, both before and during the
trial. Decker introduced affidavits executed by his former girlfriend and his son, which are
consistent with his testimony about their attendance at meetings with his trial attorney. On
cross-examination, Decker admitted that he spoke with his trial attorney on a few occasions
while he was detained in jail and that his then-girlfriend and his son were not present for
those conversations. He also admitted that they were not at counsel table during trial and,
thus, were not part of conversations between Decker and his trial attorney at counsel table.
In May 2022, the post- conviction court filed a five-page order in which it denied
Decker’s petition based on a series of four alternative findings of fact. First, the post-
conviction court found that Decker did not prove by a preponderance of the evidence that
the state made a plea offer to his trial attorney. Second, the post-conviction court found
that Decker did not prove that, if the state made a plea offer, his trial attorney did not
communicate the plea offer to him. Third, the post-conviction court found that Decker did
not prove that, if a plea offer was made and was communicated to him, he would have
accepted the plea offer. And fourth, the post-conviction court found that Decker did not
prove that, if a plea offer was made and was communicated to him and would have been
accepted by him, the district court would have accepted the plea agreement. Decker
appeals.
DECISION
Decker argues that the post-conviction court erred by denying his petition for post-
conviction relief.
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“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also Minn. Const. art.
I, § 6. The Sixth Amendment right to counsel guarantees “the right to the effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis
added). In general, to prevail on a claim of ineffective assistance of counsel, a defendant
must satisfy two requirements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Cram, 718 N.W.2d
898, 906-07 (Minn. 2006).
The two-part Strickland test applies to a claim that trial counsel was ineffective in
connection with the plea-bargaining process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). In
that context, trial counsel has “the duty to communicate formal offers from the prosecution
to accept a plea on terms and conditions that may be favorable to the accused.” Missouri
v. Frye, 566 U.S. 134, 145 (2012). Accordingly, a post-conviction petitioner may establish
the first requirement of the Strickland test by proving that trial counsel failed to comply
with that duty. See id.
To establish the second requirement of the Strickland test based on trial counsel’s
failure to communicate a plea offer, a petitioner must establish “a reasonable probability
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they would have accepted the earlier plea offer had they been afforded effective assistance
of counsel” and “a reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they had the authority to
exercise that discretion under state law.” Id. at 147. Furthermore, a petitioner must “show
a reasonable probability that the end result of the criminal process would have been more
favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id.; see
also Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020); Pearson v. State, 891 N.W.2d
590, 598 (Minn. 2017).
As stated above, the post-conviction court denied Decker’s petition based on a series
of four alternative findings of fact. On appeal, Decker challenges each of the four findings.
The first and second findings relate to the first requirement of the Strickland test; the third
and fourth findings relate to the second requirement of the Strickland test. See Frye, 566
U.S. at 145-47. To prevail on appeal, Decker must show that the post-conviction court
erred with respect to each of the four findings. See State v. Mosley, 895 N.W.2d 585, 591
(Minn. 2017).
In considering Decker’s arguments, we assume without deciding that the state made
a plea offer to Decker’s trial attorney. A ccordingly, we focus on Decker ’s arguments
concerning the post-conviction court’s second, third, and fourth findings. We apply a
clear-error standard of review to a post-conviction court’s findings of fact. Sanchez v.
State, 890 N.W.2d 716, 720 (Minn. 2017).

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A. Whether Trial Attorney Communicated Plea Offer to Decker
Decker argues that the post-conviction court erred by finding that he did not prove
that, if the state made a plea offer, his trial attorney did not communicate the plea offer to
him.
The post-conviction court made this finding after noting the statement in the trial
attorney’s affidavit that he informed Decker of the state’s plea offer. The post-conviction
court also noted Decker ’s testimony that he never was informed of the plea offer, but the
post-conviction court discounted that testimony as “self-serving.” The post-conviction
court further reasoned that the affidavits of Decker ’s former girlfriend and son are “not
persuasive” on the ground that they could not have been present for every conversation
between Decker and his trial attorney. The post-conviction court relied on Decker’s cross-
examination testimony that his former girlfriend and son were not present when he spoke
with his trial attorney from jail and were not seated at counsel table during trial.
Decker contends that the post-conviction court erred by requiring him to prove a
negative. In reality, the post-conviction court simply found Decker’s testimony to be not
credible. We generally defer to a fact-finder ’s credibility determination. See Griffin v.
State, 941 N.W.2d 404, 408-09 (Minn. 2020). In addition, the post-conviction court had a
valid basis for disbelieving Decker’s testimony: the trial attorney’s affidavit, which stated
that Decker rejected the state’s plea offer, which implies that the trial attorney informed
Decker of the plea offer. In that way, this case is like State v. Powell, 578 N.W.2d 727
(Minn. 1998), in which the appellant’s trial attorney executed an affidavit stating that he
had communicated two plea offers to the appellant. Id. at 730. The post-conviction court
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relied on the affidavit in finding that the trial attorney had communicated the plea offers to
the defendant, and that finding was upheld by the supreme court. Id. at 732.
Decker also contends that the post- conviction court erred by not crediting the
affidavits of his former girlfriend and his son, both of which state that Decker’s trial
attorney never told Decker about the state’s plea offer. The post-conviction court did not
place great weight on those two affidavits because Decker admitted that his former
girlfriend and son were not present for every conversation between him and his trial
attorney. The post-c onviction court had a valid basis for so believing because Decker
testified on cross-examination that his former girlfriend and his son did not participate in
conversations with Decker’s trial attorney while Decker was in jail or at counsel table.
Thus, the post-conviction court did not clearly err by finding that Decker did not
prove that, if the state made a plea offer, his trial attorney did not communicate the plea
offer to him.
B. Whether Decker Would Have Accepted Plea Offer
Decker also argues that the post-conviction court erred by finding that he did not
prove that, if a plea offer was made and was communicated to him, he would have accepted
it. The post-conviction court made this finding for two primary reasons: the lack of
evidence about which two charges were referenced in the state’s plea offer and Decker’s
persistent claims of innocence.
On appeal, Decker emphasizes his own testimony that he certainly would have
accepted the plea offer. He also notes the evidence that he previousl y had pleaded guilty
to charges of criminal sexual conduct after maintaining his innocence. But Decker does
9
not address the post-conviction court’s statement that there is no evidence about the two
counts on which he would have needed to admit guilt. At the evidentiary hearing, Decker
testified that he does not know which two charges were referenced in the plea offer.
Decker also does not respond to the post -conviction court’s statement that he had
consistently maintained his innocence, both before and after trial. The post-conviction
court noted that, during the pre-sentence investigation, Decker maintained his innocence
without qualification, and that statement is supported by the record. The post- conviction
court also stated that, at the post-conviction evidentiary hearing, Decker maintained his
innocence on three counts, and that statement is consistent with his testimony. In addition,
the trial attorney’s affidavit flatly states that Decker actually “rejected th[e] plea offer.”
The state contends that the trial attorney ’s statement is “sufficient support for the post-
conviction court’s finding.” We agree.
Thus, the post-conviction court did not clearly err by finding that Decker did not
prove that, if a plea offer was made and was communicated to him, he would have accepted
it.
C. Whether District Court Would Have Accepted Plea Agreement
Decker argues further that the post-conviction court erred by finding that he did not
prove that, if a plea offer was made and was communicated to him and would have been
accepted by him, the district court would have accepted the plea agreement.
In challenging this finding, Decker focuses on his testimony that he would have
accepted the plea offer if it had been communicated to him. But that issue is separate from
10
the issue of whether the district court would have accepted a plea agreement that conformed
to the plea offer. See Frye, 566 U.S. at 147.
The state contends that Decker introduced no evidence that the district court would
have accepted the plea agreement. Our review of the record indicates that the state is
correct: Decker did not introduce any evidence or make any argument as to whether the
district court would have accepted the plea agreement. As a matter of law, a district court
“may accept a plea agreement of the parties when the interest of justice would be served,”
after considering, among other factors, whether the “defendant has acknowledged guilt and
shown a willingness to assume responsibility for the criminal conduct.” Minn. R. Crim. P.
15.04, subd. 3(3), 3(3)(b). But a district court “may, in its discretion, refuse to accept a
plea agreement and is not bound by a plea agreement as to any sentence to be imposed.”
Johnson v. State, 641 N.W.2d 912, 918 (Minn. 2002). Because Decker had the burden of
proof, the lack of any evidence as to whether the district court would have accepted the
plea agreement is a sufficient basis for affirming the post-conviction court’s finding. See
Powell, 578 N.W.2d at 732.
Thus, the post-conviction court did not clearly err by finding that Decker did not
prove that, if a plea offer was made and was communicated to him and would ha ve been
accepted by him, the district court would have accepted the plea agreement.
In sum, the post-conviction court did not err by denying Decker’s petition for post-
conviction relief.
Affirmed.