State of Minnesota v. Paul Wayne Swan, Sr.

This opinion is nonprecedential except as provided by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
A24-0903

State of Minnesota,
Respondent,

vs.

Paul Wayne Swan, Sr.,
Appellant.

Filed August 24, 2026
Affirmed
Rasmusson, Judge

Beltrami County District Court
File No. 04-CR-21-2059

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

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Eric J. Olson, Olson Defense, Bloomington, Minnesota (for appellant)

Considered and decided by Rasmusson, Presiding Judge; Johnson, Judge; and Bond,
Judge.
NONPRECEDENTIAL OPINION
RASMUSSON, Judge
In this direct appeal stayed for postconviction proceedings, appellant challenges the
district court’s denial of his petition for postconviction relief, arguing that the district court
abused its discretion by determining that he did not receive ineffective assistance of

2
counsel. Because appellant fails to demonstrate that counsel’s allegedly deficient
performance prejudiced him, we affirm.
FACTS
Respondent State of Minnesota charged appellant Paul Wayne Swan Sr. with ten
counts of first -degree criminal sexual conduct and one count of second -degree criminal
sexual conduct. Swan was 72 years old when the state first brought the charges against
him in August 2021.
That November, Swan’s first attorney filed a motion seeking a competency
examination under Minn esota Rule of Criminal Procedure 20.01, which provides for
competency proceedings when a prosecutor, defense attorney , or the court “doubts the
defendant’s competency to proceed.” Counsel raised concerns regarding Swan’s memory
and potential dementia. The district court ordered a competency examination. The
examiner stated that he believed that Swan was competent but that it was “a close call.”
Swan’s attorney objected to the examiner’s report.
Swan’s first attorney left her position, and substitute counsel took over as Swan’s
attorney.1 At a hearing in May 2022, substitute counsel requested a second examination.
When asked about the legal authority for a second examination, substitute counsel stated
that he had not yet identified relevant legal authority. The district court declined t o order
a second examination but stated that it would be willing to reconsider the request upon

1 Multiple attorneys represented Swan during the relevant period. Throughout this opinion,
we refer to the attorney who allegedly provided ineffective assistance of counsel as
“substitute counsel.”

3
submission of additional legal authority. It additionally scheduled a contested rule 20.01
hearing. Subsequently, substitute counsel filed motion s raising challenges to the first
examination, seeking a continuance of the contested hearing , and requesting a second
evaluation. These motions did not cite legal authority regarding the district court’s ability
to order a second examination.
The parties addressed the motion s at a subsequent hearing . Substitute counsel
contended that rule 20.01, subdivision 4(a), and a nonprecedential decision from this court
supported his request for a second examination. Additionally, substitute counsel stated that
it might be necessary to call Swan’s first attorney to testify and that he was “looking into
the possibility that the Defense could request funding to do an evaluation . . . but that would
require [him] to requisition funds,” which he had “not had time to really dig into yet.” The
district court granted the request for a continuance but denied the request for a second
examination.
Before the rescheduled contested competency hearing, substitute counsel moved for
an additional continuance to accommodate the schedule of Swan’s first attorney, whom he
intended to call as a witness. The district court denied the motion, noting that coun sel
could seek a subpoena or court order to secure the presence of Swan’s first attorney.
Substitute counsel subsequently filed a notice requesting that Swan’s first attorney be
allowed to appear via Zoom. The record does not reflect that the district court addressed
this request or that substitute counsel pressed the district court to address this request.
On June 30, 2022, the parties appeared for the contested competency hearing. The
state presented testimony from the examiner, and the defense presented testimony from

4
Swan. Following the hearing, substitute counsel filed a memorandum of law and cited
caselaw demonstrating that a district court ordered a second examination under facts
similar to the case at bar. Following the hearing, the district court filed an order finding
Swan competent.2
The matter proceeded to a jury trial in January 2024. The jury found Swan guilty
of five of the first -degree criminal-sexual-conduct counts and not guilty of the six
remaining counts. The district court entered convictions on those five counts and sentenced
Swan to 360 months in prison.
Swan filed a direct appeal, and we granted Swan’s motion to stay his appeal and
remanded to the district court for postconviction proceedings. Swan subsequently filed a
petition for postconviction relief in which he alleged that substitute counsel provided
ineffective assistance during the competency proceedings and requested an evidentiary
hearing. During a September 2025 evidentiary hearing, Swan presented testimony from
an examiner who evaluated Swan’s competency in 2025, an expert witness who addressed
the standard of care, and substitute counsel. The district court filed an order denying the
petition, and we dissolved the stay and reinstated the appeal.

2 In September 2022, Swan filed notice of his intent to raise a mental -illness or
cognitive-impairment defense. The district court ordered a separate examination of Swan
pursuant to Minnesota Rule of Criminal Procedure 20.02, which allows a district court to
order a mental examination of a defendant when the defendant plans to present a defense
of mental illness or cognitive impairment. The rule 20.02 report did not support a claim of
mental illness.

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DECISION
This case concerns a challenge to a denial of a petition for postconviction relief
following a stay of Swan’s direct appeal. “When a defendant initially files a direct appeal
and then moves for a stay to pursue postconviction relief, we review the [ district] court’s
decisions using the same standard that we apply on direct appeal.” State v. Beecroft, 813
N.W.2d 814, 836 (Minn. 2012). When reviewing a district court’s denial of relief on an
ineffective-assistance-of-counsel claim, appellate courts “will consider the court’s factual
findings that are supported in the record, conduct a de novo review of the legal implication
of those facts on the ineffective assistance claim, and either affirm the court’s decision or
conclude that the court abused its discretion because postconviction relief is warranted.”
State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).
Swan sought postconviction relief on the basis that he received ineffective
assistance from substitute counsel , arguing that more diligent representation would have
changed the competency determination . Criminal defendants enjoy the right to counsel
under the federal and state constitutions. U.S. Const. amend. VI; Minn. Const. art. I, § 6.
This right includes “the right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quotation omitted). In reviewing claims of
ineffective assistance of counsel, Minnesota courts apply the two-pronged test set forth in
Strickland. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Under this test, a defendant
bears the burden of showing 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.’”

6
Id. (quoting Strickland, 466 U.S. at 688, 694). Appellate courts “may analyze the
Strickland requirements in either order and may dispose of a claim on one prong without
considering the other.” Lussier v. State, 853 N.W.2d 149, 154 (Minn. 2014).
Swan’s ineffective-assistance-of-counsel argument relates to substitute counsel’s
handling of the 2022 competency proceedings. Minnesota law provides that “[n]o person
having a mental illness or cognitive impairment so as to be incapable of understanding the
proceedings or making a defense shall be tried, sentenced, or punished for any crime .”
Minn. Stat. § 611.026 (2024). A defendant is not competent to stand trial if “the defendant
lacks the ability to: (1) rationally consult with counsel; (2) understand the proceedings; or
(3) participate in the defense.” Minn. Stat. § 611.42, subd. 1 (2024).
We begin our analysis by addressing whether substitute counsel’s allegedly
deficient performance prejudiced Swan. Under this prong, a defendant must show “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Gates, 398 N.W.2d at 561 (quoting Strickland,
466 U.S. at 694). A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Berry v. State, 33 N.W.3d 683, 694 (Minn. 2026) (quotation
omitted). In other words, “a defendant must show that counsel’s errors actually had an
adverse effect.” Id. (quotation omitted). A defendant must prove this “actual prejudice”
“by a preponderance of the evidence.” State v. Blanche , 696 N.W.2d 351, 376 (Minn.
2005).
In his postconviction petition, Swan argued that he received ineffective assistance
of counsel during the rule 20.01 proceedings because substitute counsel failed to

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“meaningfully contest[]” the competency examination. In support of this argument, Swan
contended that counsel “fail[ed] to seek funding for a second examination, fail[ed] to obtain
a second examination, fail[ed] to call an expert witness, fail[ed] to subpoena the first public
defender, and fail [ed] to ensure that the first public defender could testify [ virtually].”
Regarding prejudice, Swan noted that the initial examiner believed that it was a “close call”
whether Swan was competent, meaning that more diligent representation by substitute
counsel would have resulted in a different outcome. At the postconviction hearing, Swan
presented the testimony and report of a private examiner who found him incompetent
following an April 2025 examination.
The district court determined substitute counsel’s performance did not prejudice
Swan. It first explained that the argument that a second examination would have caused
the court to rule differently is speculative because it relied on multiple assumptions. The
district court additionally noted that the 2025 examination is not relevant to Swan’s
competency in 2022 and that observations of other examiners and the court contradict the
2025 report. The district court further reasoned that some of Swan’s daily activities showed
higher-level functioning in 2022.
In challenging the district court ’s decision, Swan raises three primary arguments.
He argues that the district court erred by (1) requiring proof of certainty of prejudice rather
than proof of a probability of prejudice, (2) concluding that the only relevant time to find
competency was 2022, and (3) relying on irrelevant facts.
We first address Swan’s argument that the district court applied an incorrect
standard by requiring proof of “certainty” rather than a proof of “probability” of prejudice.

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Swan contends that, in the process of showing proof of prejudice, one must necessarily
invent a scenario that might have otherwise occurred.
Swan was required to show a “reasonable probability” of prejudice “by a
preponderance of the evidence.” Id. We are not convinced that the district court
misapplied these standards. Notably, the district court explained that Swan’s offer of
prejudice relied on the following three assumptions: the district court would have granted
the request to appoint a second examiner, the second examiner would have opined that
Swan was incompetent, and the district court would have found the second examiner more
persuasive than the first examiner. The district court concluded that Swan’s multiple
assumptions, with their speculative nature, do not create a “reasonable probability ” of
prejudice. Gates , 398 N.W.2d at 561 . I t is clear that the district court considered the
reasonable probability of Swan’s arguments and did not require Swan to provide certainty
of prejudice.
Swan next argues that the district court erred by concluding that the only relevant
period to evaluate his competency was in 2022 . He contends that his 2025 evaluation is
relevant because the fact that he is presently incompetent , coupled with the initial
competency determination being a close call, raises the likelihood that he would have been
found incompetent in 2022 had substitute counsel obtained a second evaluation or made
other efforts to challenge the initial competency evaluation. He additionally points to the
2025 examiner’s testimony at the evidentiary hearing, who stated that it is more likely for
a subsequent evaluator to disagree with an initial evaluation when the initial evaluation is
a close call.

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Although the 2025 competency evaluation is not irrelevant, it provides limited
probative value. Swan’s main challenge to substitute counsel’s performance primarily
relates to substitute counsel’s failure to obtain a second evaluation or otherwise more
diligently contest his competency in 2022. More than three years elapsed between the two
competency evaluations, leaving ample time for Swan’s competency to deteriorat e.
Additionally, this argument again relies on the same assumptions that the district court
would have ordered the second evaluation, that the second evaluator would have found
Swan incompetent, and, after a contested hearing, the district court would have agreed. It
likewise assumes that other possible efforts by substitute counsel, such as calling Swan’s
first attorney as a witness at the competency hearing, would have been similarly persuasive.
These suppositions, when considered in their totality, demonstrate only a limited likelihood
that a second evaluation or other efforts by substitute counsel would have yielded a
different result. We therefore discern no error in the district court’s conclusion that Swan
failed to demonstrate a reasonable probability of prejudice.
3
Swan last argues that the district court’s prejudice determination erroneously relied
upon irrelevant facts, such as his ability to take care of himself and perform daily tasks.

3 Swan additionally notes that, because competency protections apply throughout the
entirety of the proceedings and t he trial did not occur until 2024, the 2025 evaluation is
more temporally relevant. Swan is correct that competency protections apply throughout
the course of the legal proceedings. Minn. Stat. § 611.026; Minn. R. Crim. P. 20.01,
subd. 3. This argument, however, again relies on the same multiple assumptions that we
found unpersuasive for the reasons explained above. Additionally, the record reflects no
additional requests for a competency determination until after trial, raising an inference
that neither the district court nor the parties observed deterioration in Swan’s mental
condition during the trial.

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Swan contends substitute counsel should have secured expert testimony regarding the
relevancy of these facts and consulted an expert to better prepare to cross-examine the 2022
examiner. We are not persuaded.
The district court’s competency determination offered a detailed analysis of Swan’s
ability to consult with counsel, his knowledge of the charges, and his ability to participate
in his defense. In doing so, the district court frequently referenced findings from the
examination that went well beyond Swan’s ability to complete his daily tasks.
Further, Swan fails to identify any authority that holds that a defendant’s ability to
complete daily tasks is completely irrelevant to a competency determination. To the
contrary, the first examiner testified that, although Swan’s ability to live independently is
not as relevant as some considerations, it was at least of some relevance.
Swan fails to show that hiring a separate expert or conducting another examination
would have had a reasonable probability of yielding a different competency determination.
Because Swan failed to demonstrate a reasonable probability of prejudice, we conclude
that the district court acted within its discretion by denying his petition for postconviction
relief.
4
Affirmed.

4 Because the prejudice prong is dispositive, we decline to address whether substitute
counsel’s performance was deficient. See Lussier, 853 N.W.2d at 154.