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This opinion is nonprecedential except as provided by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
A23-1943

State of Minnesota,
Respondent,

vs.

Christian Rosario-Torres,
Appellant.

Filed October 21, 2024
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CR-21-337

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

Mary F. Moriarty, Hennepin County Attorney, Matthew D. Hough, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mark D. Kelly, Law Offices of Mark D. Kelly, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Connolly , Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant challenges the execution of his sentence for criminal sexual conduct,
arguing that he received ineffective assistance of counsel. Because appellant failed to meet
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his burden to establish that his trial counsel’s assistance was constitutionally ineffective or
that he was prejudiced by this allegedly deficient performance, we affirm.
FACTS
On January 18, 2022, appellant Christian Rosario-Torres pleaded guilty to second-
degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(c) (2020).
On March 29, the district court stayed imposition of Rosario-Torres’s prison sentence for
three years, placed him on probation, and ordered that he serve 365 days in jail. The district
court’s sentencing order noted that, “if you are revoked from probation, it would likely
result in a 90-month prison sentence with a 10 -year term of conditional release if you are
sent to prison.”
On May 31, 2022, the district court received a probation-violation report that
Rosario-Torres had failed to remain law-abiding because respondent State of Minnesota
charged Rosario-Torres with felony domestic assault. A probation officer filed an
addendum on May 8, 2023, setting forth additional probation violations for failing to
remain law-abiding associated with other criminal charges for firearm possession by an
ineligible person and chemical-test refusal.
On August 22, 2023, the district court held a hearing to resolve all of
Rosario-Torres’s outstanding criminal matters pursuant to a global plea agreement.
1 The
plea agreement provided that Rosario-Torres would plead guilty to possession of a firearm
by an ineligible person and receive a downward durational sentencing departure to 48

1 Two other misdemeanor charges were also the subject of the hearing.
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months in prison, that he would also plead guilty to refusing to submit to a chemical test,
and that the state would dismiss the felony domestic-assault charge.
Also as part of the plea agreement, Rosario-Torres agreed to admit to violating the
terms of his probation related to the criminal-sexual-conduct conviction. The parties
agreed that the executed sentence on the criminal-sexual-conduct case would be served
concurrently with the 48-month sentence for the firearm charge. The state represented that
“[b]y making the admission to the probation violation, [Rosario- Torres] is being revoked
on his remaining time on his [criminal-sexual -conduct case], which balances out to about
the same amount of time, 48 months.” Rosario-Torres then entered a plea of guilty to the
firearm and test-refusal charges. The district court ordered a presentence investigation and
scheduled the case for sentencing.
At the sentencing hearing, the district court imposed a downward durational
departure sentence of 48 months in prison for the firearm charge and 364 days in jail for
the test-refusal charge, to be served concurrently.
The district court next addressed the probation violations for the
criminal-sexual-conduct conviction. Rosario-Torres agreed to waive his right to a
contested probation-violation hearing, admitted to the violations, and requested imposition
and execution of his previously stayed 90-month sentence. Trial counsel confirmed with
Rosario-Torres that he understood the implications of executing this sentence:
Q: You know if you wanted to, Mr. Torres, you would not
have to have that sentence executed on the criminal sexual
conduct . . . do you remember that?
A: Yes.

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Q: So you know that when you got out of prison, you could
actually still go back and be on probation and not have to serve
that additional time, correct?
A: Correct.

Q: Actually in this particular situation, with all of your jail
credit you have, I believe you’re going to be darn close to
getting it all executed at the same time as this new sentence, as
it will run concurrent; do you understand that?
A: Yes.

The district court then imposed and executed the 90-month prison sentence to run
concurrently with the 48-month sentence for illegal possession of a firearm. T he district
court also confirmed that Rosario-Torres would be on supervised release for 30 months,
concurrent with a 10-year term of conditional release.
Rosario-Torres appeals.
DECISION
Rosario-Torres contends that he was denied his right to the effective assistance of
counsel. Generally, claims of ineffective assistance of counsel “should be raised in a
postconviction petition for relief, rather than on direct appeal” because a postconviction
hearing allows the district court to develop an evidentiary record to evaluate defense
counsel’s performance. State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017).
But where “a claim of ineffective assistance of trial counsel can be determined on the basis
of the trial record, the claim must be brought on direct appeal.” Andersen v. State, 830
N.W.2d 1, 10 (Minn. 2013). “We review a claim of ineffective assistance of counsel
de novo.” State v. Bell, 971 N.W.2d 92, 106 (Minn. App. 2022), rev. denied (Minn. Apr.
27, 2022).
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The Sixth Amendment of the United States Constitution and article I, section 6 of
the Minnesota Constitution guarantee a criminal defendant the right to the effective
assistance of counsel. Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 686 (1984)). Rosario-Torres bears the burden to
establish his counsel’s “deficient performance” by proving that counsel’s performance “fell
below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. He must
also show prejudice by demonstrating “a reasonable probability that, but for counsel’s
errors, the result of the proceedings would have been different.” Peltier v. State, 946
N.W.2d 369, 372 (Minn. 2020) (quotation omitted). “In evaluating claims of ineffective
assistance of counsel, there is a strong presumption that counsel ’s performance was
reasonable.” Andersen, 830 N.W.2d at 10. We conclude that Rosario-Torres failed to meet
his burden to establish that his trial counsel’s performance fell below an objective standard
of reasonableness or that he was prejudiced because of this allegedly deficient
performance.
Counsel’s Performance
Rosario-Torres first argues that h is trial counsel’s performance fell below an
objective standard of reasonableness because counsel misrepresented “his anticipated
release date” for the firearm charge, which induced him to request execution of the stayed
sentence in his criminal-sexual-conduct case. Specifically, he claims that trial counsel
erroneously asserted that the two concurrent sentences he was to receive “would result in
the same duration of sentence on each file.” To support this contention, he points to a
single statement made during the sentencing hearing in which trial counsel stated: “I
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believe you’re going to be darn close to getting it all executed at the same time as this new
sentence.” We disagree.
Rosario-Torres fails to meet his burden to establish that trial counsel’s performance
fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88.
The record does not support Rosario-Torres’s contention that trial counsel failed to
accurately advise him about the relative durations of his sentences. First, nothing in the
record shows that trial counsel affirmatively advised Rosario-Torres of an erroneous
anticipated release date or otherwise advised that Rosario -Torres would serve the same
duration on both files. Rosario-Torres therefore failed to establish that counsel’s
performance fell below an objective standard of reasonableness.
Second, Rosario-Torres failed to meet his burden to establish that trial counsel’s
statement that Rosario- Torres would be “darn close to getting it all executed at the same
time as this new sentence” fell below an objective standard of reasonableness. We do not
read this statement as a misrepresentation of the relative durations of the concurrent
sentences; we instead read this statement as an indication that Rosario-Torres would likely
finish serving the in-custody portion of the executed sentence for the
criminal-sexual-conduct conviction around the same time that his supervised release for
the firearm conviction would terminate. And Rosario-Torres identifies no authority
standing for the proposition that a similar representation or statement by counsel—made
on the record and in the presence of a defendant—by itself amounts to performance below
an objective standard of reasonableness.
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We therefore conclude that Rosario- Torres failed to meet his burden to establish
that his trial counsel’s performance fell below an objective standard of reasonableness.
Prejudice
Even if trial counsel misrepresented the duration of incarceration, Rosario-Torres’s
ineffective-assistance claim still fails because he has not met his burden to establish
prejudice based on trial counsel’s performance. To establish prejudice, Rosario- Torres
must demonstrate “a reasonable probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Peltier, 946 N.W.2d at 372 (quotation omitted).
Rosario-Torres argues that “[b]ut for the representations of [trial counsel] and the
prosecutor, there is no logical reason” for him to have requested execution of the
criminal-sexual-conduct sentence.
2 We disagree for four reasons.
First, there is no evidence in the record—such as a motion to withdraw the plea, an
affidavit, or testimony—to support the claim that but for counsel’s alleged
misrepresentation of the duration of incarceration, Rosario -Torres would have proceeded
with a contested probation-revocation hearing, and that the ultimate results would have
been different or more favorable to Rosario-Torres. See Ellis-Strong, 899 N.W.2d at 540
(finding insufficient record evidence to determine prejudice where defendant “ never

2 Rosario-Torres appears to argue that alleged misrepresentations made by the prosecutor
should be considered in his ineffective-assistance-of-counsel claim. But prosecutorial
misconduct and ineffective assistance of counsel are separate inquiries. An
ineffective-assistance-of-counsel claim is concerned with defense counsel’s performance,
not with prosecutorial error or misconduct. Th us, the prosecutor’s alleged
misrepresentations have no bearing on our determination of Rosario- Torres’s ineffective-
assistance-of-counsel claim.
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submitted an affidavit or testified that he would not have pleaded guilty but for [trial
counsel’s] misadvice”).
Second, there is ample evidence in the record establishing that Rosario-Torres knew
that the two sentences at issue called for different periods of incarceration, and that
execution of his previously stayed sentence would result in additional prison time. The
original sentencing order for the criminal-sexual-conduct conviction notified
Rosario-Torres that violating the terms of his probation would likely result in a 90-month
prison sentence with ten years of conditional release. And at the sentencing hearing, the
district court ordered Rosario-Torres to serve that sentence. As to the firearm charge, the
district court notified Rosario-Torres that it was imposing a 48-month sentence and that he
would only serve two- thirds of that sentence if he behaved lawfully. Thus, despite trial
counsel’s alleged misrepresentation, Rosario-Torres was still properly informed about the
duration of each sentence.
Third, Rosario-Torres agreed to request execution of his sentence as part of a
beneficial global plea agreement. Pursuant to the plea agreement, the state dismissed
pending felony domestic-assault and misdemeanor charges. The agreement also provided
for a downward durational departure for the firearm charge and specified that the two
sentences be served concurrently. In the absence of this global agreement, the state could
have chosen to prosecute all Rosario-Torres’s pending cases, seek the maxim um penalty
in the event of conviction on each charge, and request that the district court impose
consecutive—rather than concurrent —sentences. Therefore, even assuming trial counsel
misinformed Rosario-Torres about the relative durations of his sentences, there is no
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reasonable probability that Rosario-Torres would have jeopardized the benefits of the
global plea agreement by refusing to request execution of his sentence.
Fourth, the record reflects that Rosario-Torres agreed to the terms of the plea
agreement well before the sentencing hearing, belying his contention that trial counsel’s
alleged misrepresentation induced him to request execution of his sentence. At the plea
hearing a month before the sentencing hearing, trial counsel informed the district court that
the agreement called for “a 48-month commit to prison” on the firearm case, “that will run
concurrent to the probation revocation.” At the same hearing, the prosecutor also
represented that “[b]y making the admission to the probation violation, he is being revoked
on that remaining time on his [criminal-sexual -conduct] case.” And in the written plea
petition—filed on the same day as the plea hearing—Rosario-Torres agreed in writing to
execute his previously stayed sentence and to serve that sentence concurrent with the
48-month sentence for the firearm case , further undermining Rosario-Torres’s claim that
his attorney’s alleged misrepresentation a month later induced him to request execution of
his sentence. See State v. Jenson, No. A23-1790, 2024 WL 3493886, at *3 (Minn. App.
July 22, 2024) (rejecting defendant’s claim that his attorney was ineffective for failing to
inform him of his potential sentence in part because he signed a plea petition expressly
stating that the plea agreement included the possibility that such a sentence could be
imposed).
3

3 We cite nonprecedential authority for its persuasive value. See Minn. R. Civ. App.
P. 136.01, subd. 1(c).
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In sum, Rosario-Torres’s ineffective-assistance-of-counsel claim fails because he
has not demonstrated that his trial counsel’s performance fell below an objective standard
of reasonableness. And even assuming deficient performance, the claim still fails because
he has not established prejudice.4
Affirmed.

4 Rosario-Torres also argues that alleged misrepresentations made by the prosecutor
“circumvented his State and Federal rights to procedural due process of law.” But
Rosario-Torres provides no analysis of how the prosecutor’s alleged misrepresentations
constituted such a violation. “An assignment of error based on mere assertion and not
supported by any argument or authorities in appellant’s brief is waived and will not be
considered on appeal unless prejudicial error is obvious on mere inspection.” State v.
Andersen, 871 N.W.2d 910, 915 (Minn. 2015) (quotation omitted). Because
Rosario-Torres has provided no substantive analysis to support his due-process claim, and
prejudicial error is not apparent, we consider this argument waived.