Sheila Maurise Burski, 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This opinion is nonprecedential except as provided by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
A23-1808

Sheila Maurise Burski, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 22, 2024
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Benton County District Court
File No. 05-CR-18-2496

Theresa R. Paulson, Thrive Legal Services, LLC, St. Paul, Minnesota (for appellant)

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

Kathleen L. Reuter , Benton County Attorney , Michael J.G. Schnider, Assistant County
Attorney, Foley, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Larson, Judge; and
Klaphake, 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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges her convictions of wrongfully obtaining public assistance and
financial exploitation of a vulnerable adult, arguing that the district court abused its
discretion in summarily denying her petition for postconviction relief on her claims of
discovery violations, false testimony, improper jury instructions, and ineffective assistance
of counsel. We affirm in part, reverse in part, and remand.
FACTS
Appellant Sheila Burski and Norman Meinert met in the early 1990s when they were
neighbors. In June 2005, appellant and her husband entered into a contract for deed to
purchase Meinert’s real property for $510,000. Appellant and her husband divorced in
2009, and appellant was awarded the property under contract for deed. A satisfaction of
the contract for deed was later filed in August 2011, showing that the contract for deed had
been paid in full.
In November 2013, Meinert was injured when he was st ruck by a vehicle. Shortly
thereafter, appellant was appointed as guardian and conservator over Meinert. Around the
same time, Benton County Human Services (BCHS) notified appellant that Meinert would
need to “spend down” his financial assets to maintain his eligibility for general medical
assistance. A lawful “spend down” subsequently occurred, whereas items such as funeral
expenses and legal services were paid for from Meinert’s assets.
On December 31, 2013, appellant completed a “Request for Payment of Long Term
Care Services” application for medical assistance on behalf of Meinert. Question 12 of the
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application asks: “Did you or your spouse sell, trade or give away items of income wit hin
the 60 months before the month you want [medical -assistance] payment of [long -term-
care] services to begin?” In response to this question, appellant declared the following
spend downs and their values: (1) Funeral —$12,188; (2) Apartment—$1,500; (3) Benton
Telephone—$1,000; (4) Legal Services —$8,500; and (5) Furniture —$3,650. But
appellant failed to disclose that, within the applicable 60 -month period, the contract for
deed had been satisfied in the amount of $510,000. Despite this omission, appellant signed
the application “under penalty of perjury,” representing that “all parts of [the application]
are true and correct statements, to the best of [her] knowledge.”
Pursuant to Meinert’s application, Meinert was awarded long -term medical
assistance. Appellant was later authorized to serve as the trustee of a special needs trust in
which Meinert was the subject. The basis for the special needs trust was a $50,000
settlement Meinert received as a result of the accident in which he was injured. After
expenses and fees were deducted from the settlement, approximately $16,780.5 8 funded
the trust.
Meinert passed away on August 1, 2017. Appellant was subsequently contacted by
BCHS, informing her that she needed to compete a final accounting for Meinert’s estate
and assets. But after appellant sent the necessary documents to BCHS, a collections officer
noticed that appellant was listed as the owner of property that was previously listed as
Meinert’s address. Further investigation revealed that Meinert ha d sold the property to
appellant and her husband on a contract for deed, and that, when appellant filed the
application for long-term care on behalf of Meinert, she failed to disclose that the contract
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for deed had been satisfied within the 60 -month requir ed look -back period to disclose
assets.
Respondent State of Minnesota charged appellant with wrongfully obtaining public
assistance, and two counts of financial exploitation of a vulnerable adult. At trial, evidence
was presented that, in the long -term care application appellant filed on behalf of Meinert,
appellant failed to disclose the satisfaction of the contract for deed. Respondent also
presented evidence that appellant acknowledged that she failed to disclose the satisfaction
of the contract for deed; that, because of this omission, Meinert was awarded long -term
benefits to which he was not entitled; and that Meinert was overpaid benefits in excess of
$5,000. And respondent presented evidence that transfers were regularly made between
December 2013, and November 2017, from a bank account linked to Meinert’s special
needs trust into a personal bank account linked to appellant.
A jury found appellant guilty as charged. The district court then sentenced appellant
to stays of imposition with superv ised probation for ten years , and ten days in the county
jail, for the wrongfully -obtaining-public-assistance count, and one count of financial
exploitation of a vulnerable adult. The district court also ordered restitution in the amount
of $122,197.39, plus fines and fees.
Appellant filed a notice of appeal, which was later dismissed at appellant’s request.
Appellant then filed a petition for postconviction relief, arguing that her convictions must
be reversed or, in the alternative, she should be grante d a new trial, because, among other
things: (1) she obtained newly discovered evidence that was withheld from her by
respondent in violation of Brady v. Maryland , 373 U.S. 83 (1963); (2) respondent’s
5
witnesses provided false testimony which took appellant by surprise; (3) the district court
committed plain error in instructing the jury; and (4) her trial counsel was ineffective. The
district court summarily denied appellant’s petition. This appeal follows.
DECISION
Appellant challenges the district court ’s denial of her petition for postconviction
relief. This court reviews the district court’s denial of a petition for postconviction relief
for an abuse of discretion; the court’s factual findings are reviewed for clear error and its
legal conclusions are reviewed de novo. Peltier v. State , 946 N.W.2d 369, 372 (Minn.
2020). 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.” State v. Nicks,
831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted).
I.
Appellant argues that the district court erred in determining that respondent’s failure
to disclose the following two items of evidence did not constitute Brady violations: (A) the
entirety of the Health Care Programs Manual; and (B) an interview with one of Meinert’s
previous landlords.
In Brady, the United States Supreme Court held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. For a Brady violation to exist, three elements
must be present:
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(1) the evidence must be favorable to the defendant because it
would have been either exculpatory or impeach ing; (2) the
evidence must have been suppressed by the prosecution,
intentionally or otherwise; and (3) the evidence must be
material—in other words, the absence of the evidence must
have caused prejudice to the defendant.

Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).
“Evidence is material under Brady if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Zornes v. State, 903 N.W.2d 411, 418 (Minn. 2017) (quotations omitted). “A
reasonable probability is one that is sufficient to undermine confidence in the
outcome.” Id. (quotations omitted). “[A] new trial is not required simply because a
defendant uncovers previously undisclosed evidence that would have been possibly useful
to the defendant but unlikely to have changed the verdict.” Walen, 777 N.W.2d at 216.
Because the materiality analysis involves a mixed issue of fact and law, we review a district
court’s materiality determination de novo. Id.
A. Entirety of the Health Care Programs Manual
Appellant argues that the district court abused its discretion in determining that the
failure to disclose the entire Health Care Programs Manual did not constitute a Brady
violation. To support her position, appellant refers to the Health Care Programs Manual,
which provides that “[s]ome uncompensated transfers meet an exception, which means
there is no penalty even though the transfers were uncompensated.” She argues that,
“[w]hen the prosecutor limited the disclosure, defense counsel could have not been
prepared to accurately articulate or cross -examine the areas that were not disclosed,” and
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that without all of this information, her trial counsel “would not have been able to argue
. . . that the informatio n provided to the jury was the complete information available for
consideration.” We are not persuaded.
In Zornes, the supreme court determined that “allegedly suppressed evidence was
not material because it was readily available in other documents.” 903 N.W.2d at 418.
The supreme court concluded that “no reasonable probability existed that, had the evidence
been disclosed to the defense, the result of the trial would have been different.” Id.
Here, Zornes begs a similar conclusion. A review of t he record indicates that
respondent provided an abundance of information related to “transfers.” For example, in
the chapter entitled “Transfers,” the second paragraph states: “Transfers can result in a
period of ineligibility, known as a transfer penalty, if the client: • did not receive adequate
compensation; and • there is no transfer penalty exception . (Emphasis in original.)
Moreover, the next paragraph refers the reader to different chapters “for information on
how a client can prove that a transfe r was not done to obtain or maintain eligibility” and
“for information on uncompensated transfers that are exempt from a transfer penalty.” And
later, the document provides the steps for processing a transfer, one of which states:
“Determine if the transf er meets a transfer exception. Stop here if the transfer meets a
transfer exception. Continue to the next step if the transfer does not meet a transfer
exception.” (Emphasis in original.) As the district court found, this information “makes it
abundantly clear that exceptions exist.” The information also directs the individual where
such information can be found. Appellant fails to identify how or why this information
was unavailable to her. Therefore, appellant cannot show that the district court ab used its
8
discretion in determining that the failure to disclose the entire Health Care Programs
Manual did not constitute a Brady violation. See Zornes, 903 N.W.2d at 418.
B. Interview with Meinert’s previous landlord
Appellant argues that the district court abused its discretion in determining that the
failure to disclose an interview between an investigator and Meinert’s former landlord was
not a Brady violation because the interview provided evidence that she financi ally
supported Meinert, which pertained to the two counts of financial exploitation of a
vulnerable adult. But again, this evidence is not material because the record indicates that
the information in the interview was readily available to appellant. See id. The district
court found that appellant had corresponded with the landlord since 2009 when she applied
for housing with the landlord’s property on behalf of Meinert. The district court also found
that the landlord stated that appellant “provided him with information surrounding the
contract for deed and informed [the landlord] that she was financially supporting Meinert.”
The district court further noted that “Meinert resided in this facility from 2009 until his
passing in 2017; his tenancy required him to recertify his income each year, which
[appellant] completed on his behalf.” The district court’s findings are supported by the
record and demonstrate that appellant “undoubtedly knew that [the landlord] had
information regarding [appellant’s] fina ncial support of . . . Meinert.” Appellant has not
challenged any of the district court’s findings, nor has she otherwise articulated how the
district court’s application of the law on this issue is erroneous. Accordingly, appellant has
not met her burden to show that the district court abused its discretion in determining that
there was no Brady violation.
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II.
Appellant also argues that the following instances of false testimony took her by
surprise: (A) respondent’s expert testimony that no penalty exceptions exist in the Health
Care Programs Manual; and (B) testimony that appellant breached a fiduciary duty to the
special needs tr ust.1 Thus, she argues that we “should reverse the district court and find
[that respondent] submitted false evidence to the jury.”
Minnesota courts apply a three -prong test when evaluating false -testimony claims.
Opsahl v. State, 677 N.W.2d 414, 422 (Minn. 2004) (citing Larrison v. United States , 24
F.2d 82, 87-88 (7th Cir. 1928)). Under the Larrison test, a petitioner is entitled to a new
trial if: (1) the court is “reasonably well -satisfied that the testimony in question was false;
(2) without that testimony the [fact-finder] might have reached a different conclusion; and
(3) the petitioner was taken by surprise at trial or did not know of the falsity until after
trial.” Opsahl, 677 N.W.2d at 422-23. The first two prongs are “compulsory.” Martin v.
State, 825 N.W.2d 734, 740 (Minn. 2013). If a petitioner fails to satisfy the first or second
prong, he is not entitled to relief. Reed v. State, 925 N.W.2d 11, 19 (Minn. 2019).
A. Expert-witness testimony
At trial, respondent offered the testimon y of a lawyer and accountant as an expert
witness, who testified that she is familiar with guardianships, conservatorships, and trusts,
as well as their corresponding duties. She also testified that she is familiar with long-term-

1 As respondent points out, appellant also appears to rais e an issue related to a homestead
exemption. But “[i]t is well settled that a party may not raise issues for the first time on
appeal from denial of postconviction relief.” Azure v. State, 700 N.W.2d 443, 447 (Minn.
2005) (quotation omitted).
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care eligibility, and exp lained that, when spending down assets to qualify for long -term
care, an applicant cannot “do what’s called an ‘uncompensated transfer,’” which means
that an applicant cannot give away assets while receiving nothing in exchange. The expert,
however, did not testify further regarding uncompensated transfers.
Appellant appears to argue that the expert witness misled the jury and presented
false testimony related to the wrongfully -obtaining-public-assistance offense because she
did not testify that transfer exceptions are permitted when they are done for purposes other
than obtaining medical assistance. But “a witness’s failure to give a full explanation of her
trial testimony [is] insufficient to establish false trial testimony .” Gilbert v. State , 982
N.W.2d 763, 770 (Minn. App. 2022), aff’d on other grounds, 2 N.W.3d 483 (Minn. 2024).
Here, appellant fails to identify any testimony of the expert witness that was false,
nor does she identify any motive for the witness to fabricate her testimony. Moreover, the
expert witness was never asked on direct examination whether transfer-penalty exceptions
existed—she simply answered the questions posed to her. In fact, appellant had the
opportunity to ask the witness about transfer-penalty exceptions on cross-examination, and
she declined to do so. As the district court determined, “[e]v en when taken as true,
[appellant’s] claim fails under the first [ Larrison] prong.” Th erefore, appellant is unable
to show that the district court’s decision on this issue was an abuse of discretion.
B. Testimony related to the special needs trust
Appellant also argues at length that false or misleading testimony was presented
related to the financial-exploitation-of-a-vulnerable-adult charges. More specifically, she
argues that misleading testimony was elicited from the expert witness related to the special
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needs trust because “Meinert was 70 years old , and was not legally eligible for a special
needs trust at that time” “[s]ince he was over the age of 65 when the trust was attempted to
be created.”2 As such, appellant appears to contend that any testimony that she breached a
fiduciary duty was false because she could not breach a duty related to her appointment as
trustee to a trust that was improperly formed and, therefore, never existed. We disagree.
Under Minnesota law, transfers into a special needs trust for the benefit of a disabled
person under the age of 65 are automatically exempt from a transfer penalty. Pfoser v.
Harpstead, 953 N.W.2d 507, 515 (Minn. 2021). In contrast, “a transfer for the benefit of
a disabled person age 65 or older i s not exempt,” unless certain exceptions apply. Id.
(emphasis omitted). Thus, as the district court found, “the only significance of . . .
Meinert’s age at the time the special needs trust was created was whether the transfer into
the trust was exempt from a penalty,” not whether the trust was valid. The record reflects
that the formation of the special needs trust on behalf of Meinert was authorized in
September 2014, and appellant is unable to show that Meinert’s age at the time of the trust’s
formation invalidated the trust. Because appellant is unable to show that the special needs

2 Appellant appears to argue that the prosecutor misstated the law and evidence in opening
and closing remarks. But this argument relate s to alleged prosecutorial misconduct, not
whether false testimony was submitted. Appellant does not argue that the prosecutor
committed misconduct at trial, nor does she cite any legal authority in support of such an
argument. Consequently, any argument related to prosecutorial misconduct is not properly
before us. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court
generally considers only those issues that were presented to the district court); see also
Brooks v. State , 897 N.W.2d 811, 818 -19 (Minn. App. 2017) (declining to consider
arguments “based on mere assertion and not supported by legal authority or argument”).
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trust was invalid, the testimony related to appellant’s fiduciary duties as trustee was not
false or misleading to the jury.
Appellant further argue s that, because she “ was appointed by the trustee and the
conservator, she had a right under the law to reimburse herself.” To support her position,
appellant refers to Minn. Stat. § 501C.0816(20) (2022), which provides that a trustee may:
pay an amount distributable to a be neficiary who is
under a legal disability or who the trustee reasonably believes
is incapacitated, by paying it directly to the beneficiary or
applying it for the beneficiary’s benefit, or by:

(i) paying it to the beneficiary’s conservator or, if the
beneficiary does not have a conservator, the beneficiary’s
guardian.

Appellant contends that, because respondent “did not disclose this information to the [jury],
and prevented disclosure of exculpatory evidence as to the funds [she] was paying to . . .
Meinert,” false testimony was created that a conservator is not permitted to reimburse
themselves. Again, we disagree.
The record reflects that appellant had the opportunity to testify and present evidence
related to the funds she was paying to Meinert. I n fact, appellant testified that she kept
ledgers of expenses that she would pay and reimburse herself from the trust account, and
that she had “[t]wo dressers full” of documents related to her care of Meinert. But th ese
ledgers were never disclosed to respondent and appellant never attempted to offer them as
an exhibit. As such, appellant is unable to demonstrate that she was denied the opportunity
to prove that she was permitted reimbursement as a conservator.
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Moreover, respondent’s expert witness te stified that there are circumstances in
which a trustee can pay themselves from the trust funds, but it “has to be for their actual
work as a trustee. So it is highly recommended that the trustee keeps a log of their time
they’ve worked on it.” This concept articulated by respondent’s witness also applies to
conservators. See Minn. Stat. § 524.5-502(c) (2022). Under these circumstances, appellant
cannot show that false or misleading testimony was submitted at trial related to the special
needs trust. The district court did not abuse its discretion in concluding that respondent
did not submit false or misleading testimony to the jury that took appellant by surprise.
III.
Appellant argues that a new trial is warranted because the jury instructions related
to the financial -exploitation-of-a-vulnerable-adult charges misstated the law. “While
district courts have broad discretion to formulate appropriate jury instructions, a district
court abuses its discretion if the ju ry instructions confuse, mislead, or materially misstate
the law.” State v. Lampkin, 994 N.W.2d 280, 285 (Minn. 2023) (quotation omitted). But
when, as here, the defendant does not object to jury instructions, we review the jury
instructions for plain error. See State v. Beganovic, 991 N.W.2d 638, 655 (Minn. 2023).
“To establish plain error warranting reversal of a conviction based on an unobjected-
to error, an appellant must show (1) an error (2) that is plain (3) that affects a defendant’s
substantial rights.” Id. “An error is plain if it ‘contravenes case law, a rule, or a standard
of conduct.’” State v. Simion, 745 N.W.2d 830, 843 (Minn. 2008) (quoting State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006)). But “even when these three prongs are establ ished,
a plain error does not justify granting a new trial unless [the appellate court’s] failure to do
14
so will cause the public to seriously question the fairness and integrity of our judicial
system.” State v. Bey, 975 N.W.2d 511, 521 (Minn. 2022) (quotation omitted).
Here, appellant was charged with financial exploitation of a vulnerable adult under
Minn. Stat. § 609.2335 (2016), for alleged conduct occurring between December 2013, and
November 2017. Subdivision 4 of that statute provides: “In any pros ecution under this
section, the value of the money or property or services received by the defendant within
any six -month period may be aggregated and the defendant charged accordingly in
applying the provisions of subdivision 3 . . . .” Minn. Stat. § 609.2335, subd. 4.
At trial, the jury was instructed that, to find appellant guilty of financial exploitation
of a vulnerable adult, it must find that appellant “intentionally used, managed, or took either
temporarily or permanently the real or personal prop erty or other financial resources of
. . . Meinert, whether held in the name of . . . Meinert or a third party, for the benefit of
someone other than the vulnerable adult,” and that appellant’s “act took place between
December 31, 2013 and November 20, 2017.”
Appellant argues that the jury instructions were plainly erroneous because section
609.2335, subdivision 4 “does not permit [respondent] to aggregate alleged offense s for
more than a six-month period.” We agree. The pertinent statute provides that “the value
of money or property or services received by the defendant within any six -month period
may be aggregated.” Minn. Stat. § 609.2335, subd. 4 (emphasis added). This language
limits the offenses that can be aggregated to form a more serious charge to those occurring
within a six-month period. See id.; see also State v. Anderson, No. A23-0613, 2024 WL
1613914, at *3 (Minn. App. Apr. 15, 2024) (stating that section 609.2335, subdivision 4,
15
“limits the offenses that can be aggregated to form a more serious charge to those occurring
within a six-month period”).3 Therefore, the district court erred by instructing the jury that
it could find appellant guilty if the aggregated alleged offenses occurred over a 47 -month
period, which is more than the six-month period allowed by Minn. Stat. § 609.2335, subd.
4. And because the instruction contravenes the statute, the error is plain. See Simion, 745
N.W.2d at 843 (“An error is plain if it contravenes case law, a rule, or a standard of
conduct.” (quotation omitted)).
Nevertheless, to be entitled to relief, appellant must show that the plain error
affected her substantial rights. See Beganovic, 991 N.W.2d at 655. “An erroneous jury
instruction affects a defendant’s substantial rights if the error was prejudicial and affected
the outcome of the case.” State v. Huber, 877 N.W.2d 51 9, 52 5 (Minn. 2016). The
appellant “bears the burden of establishing that there is a reasonable likelihood that the
absence of the error would have had a significant effect on the jury’s verdict.” State v.
Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted).
Here, respondent presented evidence that appellant withdrew money directly from
Meinert’s special needs trust account and deposited this money into appellant’s small
business account. These transactions occurred in at least two distinct , six-month periods,
and the aggregated amount of the transactions in each of these six-month periods exceeded
$5,000. For example, the record reflects that, between February 2, 2016, and July 8, 2016,
over $5,000 was transferred from the special needs trust accou nt to appellant’s small

3 We cite this nonprecedential opinion for its persuasive value. See Minn. R. Civ. App. P.
136.01, subd. 1(c).
16
business account. And from April 3, 2017, to June 30, 2017, over $5,000 was transferred
from the trust account into appellant’s small business account. Appellant fails to
demonstrate that any of the funds transferred to her small business account were used in
connection with her care of Meinert. See id. (stating that an appellant “bears the burden of
establishing that there is a reasonable likelihood that the absence of the error would have
had a significant effect on the jury’s verdict”). Therefore, even if the jury had been properly
instructed to consider aggregation of amounts spanning only six -month time -frames,
appellant is unable to show that the result of the proceedings would have been different.
Appellant further argue s that the jury instructions were plainly erroneous because
they “did not make it clear that [appellant] was entitled to transfer money to her account if
the money was spent for the benefit of [Meinert].” But this argument was not raised below
and, therefore, it is not properly before us. See Roby, 547 N.W.2d at 357. Moreover,
appellant fails to point to any authority supporting her position. Nor has appellant pointed
to any caselaw, rule, or standard of conduct stating that it is error to fail to instr uct a jury
on how to evaluate lawful reimbursements. Consequently, appellant has failed to establish
that the district court plainly erred by failing to instruct the jury on how to evaluate lawful
reimbursements. See Simion , 745 N.W.2d at 843 (stating th at an error is plain if it
contravenes case law, a rule, or a standard of conduct).
IV.
Appellant argues that she was denied the effective assistance of counsel. Whether
a defendant received ineffective assistance of counsel involves a mixed question of law
17
and fact, and this court reviews a postconviction court’s decision on the issue de novo.
Dereje v. State, 837 N.W.2d 714, 721 (Minn. 2013).
To demonstrate ineffective assistance of counsel, a defendant must satisfy the two -
part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Peltier, 946 N.W.2d
at 372 (citing Strickland, 466 U.S. at 687). To prevail under Strickland, a defendant “must
show that counsel’s representation fell below an objective standard of reasonableness” and
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 466 U.S. at 687 -88, 694; see also
State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) (applying Strickland to a claim of
ineffective assistance of counsel). Both parts of the Strickland test need not be analyzed if
either one is determinative. Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009).
Under the first prong of Strickland, an objective standa rd of reasonableness is
“representation by an attorney exercising the customary skills and diligence that a
reasonably competent attorney would perform under similar circumstances.” State v.
Jones, 977 N.W.2d 177, 193 (Minn. 2022). We apply “a strong pre sumption that [an
attorney’s] performance falls within the wide range of ‘reasonable professional
assistance.’” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Appellant argues that her trial counsel ’s representation fell below an objective
standard of reasonableness because a reasonably competent attorney would have reviewed
discovery and prevented the false and misleading testimony related to the transfers of
property, and caught the error related to “the issue of the age limit as to the [special needs]
trust.” But as we determined above, appellant failed to show that false or misleading
18
testimony was presented at trial, and that Meinert’s age affected the validity of the trust.
Thus, appellant’s argument fails under the first Strickland prong.
Appellant also argues that her counsel was ineffective because he failed to challenge
restitution under Minn. Stat. § 256.98 (2022) . But “[a] party may not ‘obtain review by
raising the same general issue litigated below but under a different theory.’” State v.
McMurray, 860 N.W.2d 686, 689 n.2 (Minn. 2015) (quoting Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988)). Here, although appellant argued in her postconviction petition
that her trial counsel was ineffective for failing to challenge restitution, he r challenge was
not based on section 256.98. As such, appellant’s ineffective-assistance claim, as it relates
to restitution, is not properly before us because it is being raised under a different theory
than was argued below.
Appellant further argues that her counsel’s performance was deficient because he
failed to (1) investigate the law as to transfers, fiduciary compensation, and appellant’s
transactions; (2) hire an expert at torney and forensic accountant; (3) cross -examine
witnesses regarding the laws of eligibility; (4) attend continuing legal education as to
medical assistance, trusts, guardianships, and conservatorships; (5) object to misstatements
of the law and the jury instructions; and (6) file discovery motions. Because most of these
arguments relate to trial strategy, we do not address them. See State v. Bobo, 770 N.W.2d
129, 138 (Minn. 2009) (“What evidence to present to the jury, what witnesses to call, and
whether to object are part of an attorney’s trial strategy which lie within the proper
discretion of trial counsel and will generally not be reviewed later for competence.”).
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However, appellant’s ineffective-assistance-of-counsel claim has merit as it relates
to ledgers she allegedly kept on behalf of Meinert. Specifically, appellant claims that she
kept le dgers accounting for her use of the special needs trust funds, which she alleges
demonstrate that the trust funds were used for Meinert’s needs and care. Appellant argues
that a reasonable, competent attorney would have presented these le dgers to the jury in
defense of the financial-exploitation-of-a-vulnerable-adult charges.
To be entitled to an evidentiary hearing based on a claim of ineffective assistance
of counsel, “an appellant must allege facts that, if proven by a fair preponderance of the
evidence, would satisfy the two-prong test set forth in Strickland.” Chavez-Nelson v. State,
948 N.W.2d 665, 671 (Minn. 2020) (quotation omitted). And “[i]n determining whether
an evidentiary hearing is required, a postconviction court considers the facts alleged in the
petition as true and construes them in the light most favorable to the petitioner.” Andersen
v. State, 913 N.W.2d 417, 422-23 (Minn. 2018) (quotation omitted).
Here, appellant has alleged facts related to the ledgers that, if true, would potentially
be exculpatory on the financial-exploitation-of-a-vulnerable-adult charges. Based on this
record, appellant is entitled to an evidentiary hearing on her ineffective -assistance-of-
counsel claim because she has satisfied the Strickland test. Accordingly, we reverse and
remand for an evidentiary hearing solely on appellant’s claim that her counsel was
ineffective for failing to investigate and offer the ledgers in defense of the financial-
exploitation-of-a-vulnerable-adult charges.
Affirmed in part, reversed in part, and remanded.