State of Minnesota v. Daniel Alexander Albert

This opinion is nonprecedential except as provided by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
A24-1481

State of Minnesota,
Respondent,

vs.

Daniel Alexander Albert,
Appellant.

Filed August 31, 2026
Affirmed
Bentley, Judge

Hennepin County District Court
File No. 27-CR-23-13348

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

Mary F. Moriarty, Hennepin County Attorney, Nicholas G. Kimball, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Elizabeth C. Royal, Elizabeth Royal Law Office, St. Paul, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Ross, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
After a jury trial, appellant was convicted of two counts of first- degree criminal
sexual conduct. Following a stay of this appeal for postconviction proceedings, appellant

2
challenges the convictions based on alleged trial errors and argues that the district court
abused its discretion in denying postconviction relief. We affirm in each respect.
FACTS
The following facts derive from the testimony and evidence received at trial as well
as Albert’s postconviction petition and supporting documents.
Charges
In 2022, nine-year-old M.L.G. confided in a cousin that appellant Daniel Alexander
Albert had sexually touched her. The cousin told her mom, who then told one of M.L.G.’s
guardians, and the conduct was eventually reported to the police. During a forensic
interview, M.L.G. stated that her aunt lived with Albert across the street from her
grandmother’s home and she would sometimes visit her aunt’s place while she was staying
with her grandmother . M.L.G. told the interviewer that she “got raped” by “Dan Albert”
during the visits. She described one incident as occurring around Thanksgiving that year
but stated that it happened more than one time. Identifying the place on her body where
Albert touched her, M.L.G. circled the vaginal area and buttocks on a diagram. When the
interviewer asked whether the touching was “on the outside of [her] body or the inside of
[her] body,” M.L.G. whispered, “Inside.”
Respondent State of Minnesota charged Albert with two counts of first-degree
criminal sexual conduct involving penetration or contact with an individual under 14 years

3
of age where the actor is more than 36 months older, in violation of Minn. Stat. § 609.342,
subd. 1a(e) (2022).1
Trial and Sentencing
Albert proceeded to a jury trial and was represented by appointed counsel. Before
trial, the state filed a motion in limine seeking to admit M.L.G.’s forensic interview into
evidence. The state also filed a notice of intent to offer expert testimony from the forensic
interviewer and a motion to allow the presence of a support person for M.L.G. while she
testified. Albert did not oppose those motions or object to the admission of this evidence.
During trial, the jury heard testimony from M.L .G., the forensic interviewer,
M.L.G.’s therapist, and several family members. Albert also testified in his own defense.
M.L.G. had difficulty testifying to the details of Albert’s conduct, referring to it
initially as “[w]hat Dan did.” She testified that it happened more than once and started
when she was around seven years old.
When the state asked more about “what Dan did,” the following exchange took
place:
Q: What Dan did, did you ever feel anything on your body?
A: I don’t want to talk about it.
. . . .
Q: All right. When you talked to the lady at the police station,
did you talk about what Dan did?
A: Yeah.

1 The state also charged Albert with first-degree criminal sexual conduct involving
penetration of an individual under 16 years of age where there is a significant relationship
and multiple acts, in violation of Minn. Stat. § 609.342, subd. 1a(h)(iii) (2022). That count
was dismissed before trial.

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Q: Okay. And what Dan did, would there be anything that you
would hear when that was happening, like hear with your ears
ever?
A: No.

Q: How about anything that you would see?
A: I don’t know.
. . . .
Q: What Dan did, did you feel any touches on your body?
A: Yeah.
. . . .
Q: . . . can you tell me where on your body?
A: I don’t want to answer.

When given the option, M.L.G. agreed to circle where he touched her on a diagram
of a body, and she circled the vaginal area on the diagram. M.L.G. indicated that Albert
used his hand when asked, “[W]hat would touch that part?” The state continued:
Q: . . . When his hand would touch that part, would it be over
your clothes or under your clothes or something else?
A: I don’t want to say.

Q: You don’t want to say? Okay. And when his hand would
touch that part, would it be on the outside of that part or the
inside of that part or something else?
A: I don’t know.
. . . .
Q: . . . How did that feel on your body?
A: Uncomfortable.

Q: Would your clothes ever move or be off, or would they be
on or something else?
A: I don’t know.

Q: . . . did that happen on one day or more than one day?
A: More than one day.

Q: Okay. And do you remember the last time that it happened?
A: No.

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When asked specifically about the day around Thanksgiving, M.L.G. said she did
not remember if it happened that day. She agreed that it was easier to remember when she
was “talking to the lady at the police station” because it was “a lot closer to the time.” She
confirmed that she gave truthful answers during that conversation.
The state offered the video recording of the forensic interview into evidence through
the testimony of the forensic interviewer and provided the jury with a transcript of the
interview. Albert did not object, and the district court admitted them. The video was played
to the jury.
The jury found Albert guilty of both counts of first-degree criminal sexual conduct.
At sentencing, Albert moved for a downward dispositional departure on the basis
that he is “particularly amenable to probation.” The court found, after “read[ing] through
the presentence report, the psychosexual evaluation, and . . . [sitting] through the trial,” that
Albert was not particularly amenable to probation and denied the motion. The district court
noted its concerns about whether Albert would engage in treatment and whether his failure
to take accountability would affect his success in treatment.
The district court convicted Albert on both counts and sentenced him to 180 months’
imprisonment on count one and 144 months’ imprisonment on count two, to be served
concurrently.
Albert retained private counsel and filed a direct appeal with a corresponding brief.
The appeal was then stayed to permit Albert to seek postconviction relief in the district
court.

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Postconviction
In his petition for postconviction relief, Albert argued that he received ineffective
assistance of counsel and that his right to counsel of his choice had been violated.
Regarding ineffective assistance of counsel, Albert argued that on multiple occasions his
trial attorneys “failed to make proper objections, file motions, and elicit available evidence
favorable to [him].” In support of those arguments, Albert relied on a report from a clinical
psychologist analyzing the weaknesses of the forensic interview in this case and opining
that Albert’s counsel should have offered their own expert testimony dissecting the
interview and discussing the amount of weight to give M.L.G.’s allegations. He also relied
on an affidavit of a private investigator who provided “an outline and recommendations”
of things “that should have been investigated” by Albert’s attorneys.
With respect to the right to counsel of choice, Albert argued that his right was
violated because his trial attorneys advised him not to talk to anybody about his pending
charges, including family. Albert understood that to mean that he could not talk to family
about hiring a private attorney. To support the argument that this advice violated his right
to counsel of his choice, Albert relied on his own affidavit and an affidavit from his brother
asserting that, if Albert had been able to talk with his family, they would have provided
financial resources to pay for an attorney.
Albert also moved for the district court to order the state to pay “reasonable expert
witness fees” under Minnesota Statutes section 563.01, subdivision 4 (2024).
The district court denied Albert’s petition without an evidentiary hearing. On the
ineffective-assistance-of-counsel issue, the district court identified that “trial strategy

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is . . . generally the province of the attorney.” It noted that Albert “listed multiple instances
where [he] believed the defense performed poorly but failed to explain how that
performance fell below the standard of reasonableness.” The district court determined that
Albert’s “position is primarily that he disagrees with the attorneys’ choices.” The court
also stated that Albert failed to allege how the claimed errors affected the outcome of the
case and therefore did not demonstrate prejudice. Addressing the counsel-of-choice
argument, the district court noted that Albert “provided no information that he was
unsatisfied with the [appointed counsel] or that he was denied any attempts to actually hire
his own attorney.”
In a separate order, the district court denied Albert’s motion for expert-witness fees.
We dissolved the stay of the appeal.
DECISION
We begin by considering the arguments made in Albert’s principal brief filed before
his appeal was stayed for postconviction proceedings. Then, we reach Albert’s challenge
to the district court’s summary denial of his postconviction petition. Finally, we address
Albert’s appeal of the order denying expert-witness fees.
I. Direct-Appeal Claims
Albert argues in his direct appeal that the district court made numerous errors at trial
and sentencing that call for various forms of relief. First, he asserts that he is entitled to a
new trial because the district court plainly erred by admitting the forensic interview and
because the prosecutor committed misconduct amounting to plain error by vouching for
M.L.G.’s credibility in her closing argument. Second, he argues that his convictions must

8
be reversed because the evidence presented was insufficient to prove penetration, one of
the elements of the crimes for which he was found guilty. Third, he seeks resentencing on
the basis that the district court abused its discretion by denying his motion for a
dispositional departure. We address these issues in turn.
A. Arguments for a New Trial
1. Forensic Interview
Albert did not object to the admission of the forensic interview at trial, so the
standard of review on appeal is plain error. See State v. Manthey, 711 N.W.2d 498, 504
(Minn. 2006). Under the plain-error standard, Albert must establish (1) an error; (2) that
was plain; and (3) that affected his substantial rights. State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). “An error is plain if it was clear or obvious.” State v. Strommen, 648 N.W.2d
681, 688 (Minn. 2002) (quotations omitted). If all three prongs are met, an appellate court
must then “assess whether reversal is required to ensure the fairness, integrity, or public
reputation of judicial proceedings.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016)
(quotation omitted).
Albert asserts that the admission of the forensic interview was error because it was
hearsay and the district court did not decide , on the record, whether an exception applied
to the general rule that hearsay is inadmissible . The state argues that the district court did
not err because, had Albert objected, there were multiple hearsay exceptions they would
have asserted, including the recorded-recollection exception under Minnesota Rule of
Evidence 803(5), the “catchall” exception under Minnesota Rule of Evidence 807, or a
statutory provision that makes “[a]n out-of-court statement made by a child under the age

9
of ten years . . . alleging, explaining, denying, or describing any act of sexual contact or
penetration” admissible when certain conditions are met, under Minn. Stat. § 595.02,
subd. 3 (2024). Albert disputes the applicability of these exceptions and maintains that the
district court had an obligation to explain the exception that it applied.2
These arguments illustrate the importance of an objection at trial to the admission
of hearsay evidence. The Minnesota Supreme Court has recognized the difficulty in
reviewing hearsay issues under the plain-error standard and underscored that hearsay
objections are “particularly important to the creation of a record of the trial court’s
decision-making process.” Manthey, 711 N.W.2d at 504; see also State v. Stone, 982
N.W.2d 500, 512 (Minn. App. 2022) (stating that “[t]he supreme court has indicated a
hesitancy to deem the admission of hearsay plain error”), aff’d on other grounds, 995
N.W.2d 617 (Minn. 2023). Because Albert did not object to the admission of the forensic
interview as hearsay, we have no record on which we can assess the district court’s
decision-making process. Even assuming without deciding that the district court erred in
admitting the forensic interview, we cannot say, based on the record before, us that any
such error was “clear or obvious,” Strommen, 648 N.W.2d at 688 (quotations omitted), in
light of the numerous potential exceptions that may have applied if the issues had been
developed in the district court, see Manthey, 711 N.W.2d at 504.

2 With respect to the exception in Minnesota Statutes section 595.02, subdivision 3, Albert
focuses on the fact that the court did not conduct a hearing outside the presence of the jury
on the reliability of the statement, as would have been required if the state had relied on
that provision.

10
Albert also does not refer us to caselaw that requires a district court to sua sponte
conduct a hearing and make findings about the applicability of hearsay exceptions in the
absence of an objection, and we are aware of none. To the contrary, in State v. Burns, the
supreme court concluded that the district court’s failure to hold a hearing under section
595.02, subdivision 3, “does not justify granting the defendant a new trial” when
“defendant did not request such a hearing or object to the lack of one.” 394 N.W.2d 495,
496-98 (Minn. 1986). In State v. Alvarez, we concluded in the context of the admissibility
of statements by co-conspirators under Minnesota Rule of Evidence 801(d)(2)(E) that “[n]o
Minnesota caselaw directly requires the district court to state in writing or on the record its
finding that the requisite showings have been made.” 820 N.W.2d 601, 620 (Minn. App.
2012), aff’d sub nom. State v. Castillo-Alvarez, 836 N.W.2d 527 (Minn. 2013). And in
State v. DeRosier, applying the “catchall exception,” the supreme court has noted that the
district court should make findings on the enumerated requirements “on the record unless
there is a waiver, explicitly or by silence, or the basis of the ruling is obvious.” 695 N.W.2d
97, 105 (Minn. 2005) (quotation omitted). These cases further lead us to conclude that the
district court did not plainly err in declining to make findings or conclusions of law on the
record regarding the admission of hearsay evidence absent an objection.
Because Albert has not established plain error in the admission of the forensic
interview, we do not reach the other factors of the plain-error test. State v. Brown, 815
N.W.2d 609, 620 (Minn. 2012).

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2. Prosecutorial Misconduct
Albert separately argues that he should be afforded a new trial because the
prosecutor committed misconduct in her closing argument. Specifically, Albert asserts that
the state improperly vouched for M.L.G.’s credibility at two points in the closing argument.
First, when referring to M.L.G.’s testimony, the prosecutor stated:
[T]he reality is that that is the best evidence you’re ever going
to get in a case like this. Kids don’t talk about this stuff right
away. [He] [d]idn’t . . . leave her with injuries. He didn’t do it
in front of anybody. It happens in secret, and that’s the way
kids keep it. Sometimes forever. That is the best evidence you
will get in a case like this. Hearing from [M.L.G.] what
happened to her body, what she felt, what she experienced.

Second, when recounting the forensic interview footage and discussing the penetration
element of the offenses, the prosecutor stated:
And she says, “Inside.”
“Did any part of his hand, um, was that touching on the
outside of your body or the inside of your body?”
And she whispers, “Inside.”
“Can you show me where the touch went inside your
body?”
And she puts a second circle around the genital area on
the front of her body. That’s penetration.

Because Albert did not object to these statements at trial, we apply the modified
plain-error standard of review. Peltier, 874 N.W.2d at 803. Under that test, the appellant
must first demonstrate “that the prosecutor’s conduct constitutes an error that is plain.”
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the appellant makes that showing,
the burden then shifts to the state to demonstrate that the misconduct did not affect the
appellant’s substantial rights. Id.

12
“A prosecutor may not personally endorse the credibility of witnesses.” State v.
Swanson, 707 N.W.2d 645, 656 (Minn. 2006). A statement constitutes impermissible
vouching “when the government implies a guarantee of a witness’ s truthfulness, refers to
facts outside the record, or expresses a personal opinion as to a witness’s credibility.” State
v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted). But the state can
argue that certain witnesses were or were not credible. State v. Lopez-Rios, 669 N.W.2d
603, 614 (Minn. 2003) . It also “has the right to analyze and explain the evidence, and to
argue all proper inferences to be drawn from the evidence.” State v. Mems, 708 N.W.2d
526, 532 (Minn. 2006). “When evaluating alleged vouching, a court will look at the closing
argument as a whole.” State v. Fields, 730 N.W.2d 777, 785 (Minn. 2007) (quotation
omitted).
Albert argues that the first statement he identified about the “best evidence” was
improper vouching because it invoked a pattern from child sexual-abuse cases generally,
which he alleges placed greater pressure on the jury to believe M.L.G. But this argument
is undermined when we look at the closing argument as a whole and the context in which
the statement was made. See id. The prosecutor stated multiple times before and after the
“best evidence” statement that, if the jury believes M.L.G.’s statements, then that is enough
to find him guilty. The prosecutor did not usurp the jury’s role in determining witness
credibility. Instead, she repeatedly reminded the jury that it was their decision whether to
believe M.L.G. Considering the closing as a whole, we cannot conclude that the district
court plainly erred in allowing that aspect of the closing argument.

13
Regarding the second challenged portion of the state’s closing, Albert argues the
statement, “That’s penetration,” amounted to the state “vouching for the child witness’s
understanding that inside meant penetration.” But the state is permitted to analyze and
explain the evidence and to argue that the jury should draw proper inferences. Mems, 708
N.W.2d at 532. We are not persuaded that the statement here fell so far outside the bounds
of permissible advocacy that the district court plainly erred in allowing it. Again, because
Albert has not established a plain error, he is not entitled to relief. See State v. Epps, 964
N.W.2d 419, 423 (Minn. 2021) (“[A] negative answer to any one of the three parts of the
plain error doctrine may end our analysis and a defendant’s quest for relief.”).
B. Argument for Reversal for Insufficient Evidence
Albert argues that his convictions must be reversed because there is insufficient
evidence to prove a violation of Minneso ta Statutes section 609.342, subdivision 1a(e),
beyond a reasonable doubt. The statute provides:
A person who engages in penetration with anyone under
18 years of age or sexual contact with a person under 14 years
of age . . . is guilty of criminal sexual conduct in the first
degree if . . . the complainant is under 14 years of age and the
actor is more than 36 months older than the complainant.

Minn. Stat. § 609.342, subd. 1a(e). Albert challenges the sufficiency of the evidence only
on the element of penetration. He argues that M.L.G.’s response of “inside,” when asked
during the forensic interview whether the “touching [was] on the outside of [her] body or
the inside of [her] body,” was insufficient to prove penetration beyond a reasonable doubt.
He maintains that, to M.L.G., “inside” could have meant something other than penetration.

14
When analyzing a sufficiency-of-the-evidence claim, the “relevant standard of
review depends on whether the factfinder . . . reached its conclusion of law based on direct
or circumstantial evidence.” State v. Petersen, 910 N.W.2d 1, 6 (Minn. 2018). Direct
evidence is “evidence that is based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption.” State v. Harris, 895 N.W.2d 592, 599
(Minn. 2017) (quotation omitted). Circumstantial evidence is “evidence from which the
factfinder can infer whether the facts in dispute existed or did not exist.” Id. (quotation
omitted).
In “reviewing the sufficiency of direct evidence, [appellate courts] painstakingly
review the record to determine whether that evidence, viewed in the light most favorable
to the verdict, was sufficient to permit the jurors to reach the verdict that they did.” State
v. Segura, 2 N.W.3d 142, 155 (Minn. 2024) (quotation omitted). In contrast, when
circumstantial evidence was used to prove an element of a crime, “we apply a two-step test
to assess the sufficiency of the evidence on those elements.” State v. Firkus, 31 N.W.3d
468, 478 (Minn. 2026).
Albert argues that this court should apply the circumstantial-evidence test because
there is an inference required to determine that M.L.G .’s answer of “inside” meant
penetration. In contrast, the state asserts that the direct-evidence standard applies. We find
the state’s argument more persuasive.
The supreme court emphasized in a case involving a minor that “proof of penetration
need not be in any particular form of words.” State v. Steinbrink, 297 N.W.2d 291 , 292
(Minn. 1980). M.L.G.’s statements about the nature of the touching she experienced is

15
evidence “based on personal knowledge or observation.” Harris, 895 N.W.2d at 599
(quotation omitted). And even though M.L.G. did not use the word, “penetration,” we
disagree with Albert that an inference is required to conclude that M.L.G. was describing
penetration when she was asked in the forensic interview whether the touching was “on the
outside of [her] body or the inside of [her] body” and answered, “Inside.” M.L.G. further
indicated that penetration occurred when she was asked, “Can you show me where the
touch went inside your body?” and she circled the vaginal area on the provided diagram.
(Emphasis added.)
The state’s presentation of M.L.G.’s testimony and statements amounts to evidence
that, if true, would prove the element of penetration through “personal knowledge or
observation” and “without inference or presumption.” Thus, we apply the direct-evidence
test to Albert’s sufficiency-of-the-evidence challenge. Id. (quotation omitted). Albert does
not argue that the evidence is insufficient under the direct-evidence test. In our review, we
conclude it is sufficient. Viewed “in the light most favorable to the verdict, ” Segura, 2
N.W.3d at 155 (quotation omitted), M.L.G.’s testimony and her statements in the forensic
interview that were admitted into evidence were sufficient to permit the jurors to find that
Albert’s touching involved penetration. The evidence is therefore sufficient to sustain the
conviction.
C. Sentencing Challenge
Next, Albert alleges that the district court abused its discretion by declining to grant
his motion for a dispositional departure at sentencing. “A sentencing court must pronounce
a sentence within the applicable range unless there exist identifiable, substantial, and

16
compelling circumstances that distinguish a case and overcome the presumption in favor
of the guidelines sentence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (quotation
omitted). A dispositional departure from the presumptive sentence “places the offender in
a different setting” than what the guidelines provide, such as sentencing a defendant to
probation rather than imprisonment. State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
When deciding whether to grant a dispositional departure, district courts typically
focus on the “characteristics of the defendant.” Id. A dispositional departure to a
probationary sentence may be justified based on the defendant’s “particular amenability”
to probation. Soto, 855 N.W.2d at 308 (emphasis omitted) (quotation omitted). To evaluate
particular amenability to probation, district courts apply the factors listed in State v. Trog,
which include “the defendant’s age, his prior record, his remorse, his cooperation, his
attitude while in court, and the support of friends and/or family.” 323 N.W.2d 28, 31 (Minn.
1982).
“But the mere fact that a mitigating factor is present in a particular case does ‘not
obligate the court to place defendant on probation or impose a shorter term than the
presumptive term.’” State v. Pegel, 795 N.W.2d 251, 253-54 (Minn. App. 2011) (quoting
State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984)). A district court need not discuss every
Trog factor before imposing a presumptive sentence. Id. at 254. And “[a]lthough the trial
court is required to give reasons for departure, an explanation is not required when the
court considers reasons for departure but elects to impose the presumptive sentence.” State
v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).

17
On review, appellate courts “afford the trial court great discretion in the imposition
of sentences and reverse sentencing decisions only for an abuse of that discretion.” Soto,
855 N.W.2d at 307-08 (quotation omitted). “A district 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. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted). So
long as “the record shows the sentencing court carefully evaluated all the testimony and
information presented before making a de termination,” the reviewing court should not
interfere with the district court’s exercise of discretion in imposing a sentence. Van Ruler,
378 N.W.2d at 80- 81. Only in “a rare case” will an appellate court reverse the district
court’s decision to impose a presumptive guidelines sentence. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981).
Albert argues that the district court abused its discretion by denying his motion for
a downward dispositional departure because “the district court did not properly evaluate
the factors at issue which should have given rise to a determination that he was particularly
amenable to probation.” He cites Trog factors in his favor, including his lack of a prior
criminal record, his cooperation with the proceedings, and his support from friends and
family. Albert also contends that the psychosexual evaluation’s finding that he is a “low
risk” for reoffending supports a dispositional departure.
Before imposing a guidelines sentence at the sentencing hearing, the district court
noted that it had read both the presentence investigation and the psychosexual evaluation.
Based on those documents and its observations at trial, the district court concluded that
Albert is not particularly amenable to probation. The district court explained that, in

18
reading through the psychosexual evaluation, it had the sense that Albert is “somebody
who doesn’t want to engage . . . and will simply not be involved in programming.” T he
district court also noted that Albert had failed to take accountability for his actions, which
can impact amenability to treatment. The district court’s observations are consistent with
information in the record, and its explanation reflects that it carefully evaluated the
information presented. Van Ruler, 378 N.W.2d at 80-81. Even if some Trog factors
weighed in his favor, the district court was not obligated to depart or to make findings on
every Trog factor. Pegel, 795 N.W.2d at 253-54.
The district court did not abuse its discretion by declining to grant a dispositional
departure.
II. Postconviction Claims
Albert also challenges the district court’s decision to deny his petition for
postconviction relief without an evidentiary hearing.
A district court may deny a petition for postconviction relief without an evidentiary
hearing if a claim is procedurally barred or if the petitioner fails to allege facts that, if
proved, “would entitle the petitioner to the requested relief.” Thoresen v. State, 965 N.W.2d
295, 303 (Minn. 2021) (quotation omitted). When determining whether the petitioner is
entitled to an evidentiary hearing, the district court is required to consider the facts alleged
in the petition as true and construe them in the light most favorable to the petitioner.
Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018). “[T]he burden is on a petitioner
to show facts entitling the petitioner to relief.” Allwine v. State, 994 N.W.2d 528, 541
(Minn. 2023).

19
Appellate courts review a district court’s denial of a petition for postconviction
relief for an abuse of discretion. Colbert v. State, 870 N.W.2d 616, 621 (Minn. 2015). A
district court abuses its discretion if it “exercise[s] its discretion in an arbitrary or capricious
manner, base[s] its ruling on an erroneous view of the law, or [makes] clearly erroneous
factual findings.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted).
“Legal issues are reviewed de novo,” and factual issues are reviewed for whether the record
evidence reasonably supports the findings. Id.
With that framing in mind, we turn to Albert’s arguments. First, he argues that he
received ineffective assistance of counsel. Second, he maintains that his right to counsel of
his choice was violated. We address each issue in turn.
A. Ineffective Assistance of Counsel
The supreme court has held that, “[t]o receive an evidentiary hearing on a
postconviction claim of ineffective assistance of . . . counsel, a defendant is required to
allege facts that, if proven by a fair preponderance of the evidence, would satisfy the two-
prong test” established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Bobo v.
State, 820 N.W.2d 511, 516 (Minn. 2012). The two prongs of the Strickland test are: (1) the
defendant must prove that “counsel’ s representation fell below an objective standard of
reasonableness” and (2) the defendant must prove there was a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 688, 694. While performing this analysis, there is a “strong
presumption that counsel’s performance was reasonable.” Crow v. State, 923 N.W.2d 2, 14
(Minn. 2019) (quotation omitted).

20
In the context of a postconviction petition asserting a claim of ineffective assistance
of counsel, appellate courts consider whether the district court’s factual findings are
sufficiently supported in the record. State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).
The district court’s factual findings should “not be disturbed unless they are clearly
erroneous.” Id. at 503. Appellate courts then “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.” Id. at 504.
In his petition, Albert identified 11 alleged errors committed by his trial attorneys:
(1) “[f]ailing to explain to Albert the meaning of instructions not to talk to anyone,
depriving him of his Sixth Amendment right to paid counsel of his choice”; (2) failing to
object to the admission into evidence of the forensic interview; (3) failure to object to
certain statements; (4) “[f]ailing to notice that the trial judge neither made findings nor
issued an order on the State’s motion”; (5) “[f]ailing to interview the State’s expert
witnesses and prepare for their cross-examination”; (6) failing to subpoena therapy notes;
(7) “[f]ailing to retain and call an expert witness on forensic examinations at trial”;
(8) failing to subpoena digital devices; (9) “[f]ailing to file a response and objection to the
State’s Notice of Motion and Motion In Limine . . . , and failing to provide notice of intent
to impeach” M.L.G.’s father; (10) failing to object to M.L.G.’s support person; and
(11) failing to object to the state’s vouching.
Albert’s arguments do not warrant relief. Appellate courts “generally do not review
ineffective assistance of counsel claims based on trial strategy.” Francis v. State,

21
781 N.W.2d 892, 898 (Minn. 2010). Trial strategy includes “[w]hat evidence to present to
the jury, what witnesses to call, and whether to object.” State v. Bobo, 770 N.W.2d 129,
138 (Minn. 2009). The supreme court has emphasized that appellate courts should refrain
from reviewing such decisions to afford trial counsel “the flexibility to represent a client
to the fullest extent possible.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (declining
to review allegations that “counsel should have sought a change of venue, should have
hired an investigator, and should have interviewed prospective witnesses” because “none
of [those] contentions concern errors in professional performance but instead relate to trial
strategy”).
Nearly all the conduct Albert alleges falls within the trial-strategy categories
identified in Bobo—what evidence or witnesses to present to the jury and whether to object
to those offered by the prosecution. 770 N.W.2d at 138.
3 As a result, we generally would
not review them. See Francis, 781 N.W.2d at 898.
Albert maintains, at least with respect to trial counsel’s decisions not to object to
admission of the forensic interview and not to offer expert testimony about the
inadequacies of the forensic interview, that they do not constitute legitimate trial strategy
and, instead, reflect objectively unreasonable conduct. This position is not supported in the
record. A written statement by one of his attorneys reveals that their strategy, in the event
M.L.G. testified, was for the forensic interview to come in to “demonstrate[] that the
investigation wasn’t performed properly, [M.L.G.’s] answers were the product of

3 Counsel’s advice to Albert not to speak with others about the details of his case does not
amount to trial strategy but, as discussed further below, it was not objectively unreasonable.

22
suggestion and were significantly different than her trial testimony.” The cross-
examination of the state’s witnesses was consistent with this strategy. Because the record
reaffirms that the decision not to object to the forensic interview was part of the trial
strategy, we decline to second-guess it. We also will not consider counsel’s decision not to
call independent expert witnesses to establish that the investigation was not properly
performed. See Bobo, 770 N.W.2d at 138; Jones, 392 N.W.2d at 236.
Albert does not dispute that the other conduct he identifies falls within counsel’s
trial strategy. Instead, he claims that, considering the alleged shortcomings together, we
should conclude that counsel’s conduct was objectively unreasonable and constitutes
ineffective assistance. Reviewing the record as a whole, we are not persuaded to deviate
from our general practice of refraining to review trial strategy on appeal.
We conclude that Albert failed to meet his burden under the first Strickland prong
to establish objectively unreasonable conduct, and we therefore do not reach the prejudice
prong. See Sanchez v. State, 890 N.W.2d 716, 720 (Minn. 2017) (stating that appellate
courts “need not analyze both elements of the Strickland test if one or the other is
determinative”). Because Albert failed to allege facts establishing ineffective assistance of
counsel, the district court did not abuse its discretion by denying his postconviction petition
without an evidentiary hearing. See Bobo, 820 N.W.2d at 516 (stating that “[t]o receive an
evidentiary hearing on a postconviction claim of ineffective assistance of . . . counsel, a
defendant is required to allege facts that, if proven by a fair preponderance of the evidence,
would satisfy the two-prong test announced in Strickland”).

23
B. Counsel of Choice
Albert argues that he was deprived of the right to counsel of his choice because his
appointed counsel advised him not to talk to anyone about his case, and he interpreted this
to mean he could not ask for help retaining private counsel.
“[A] defendant’s constitutional right to assistance of counsel includes a fair
opportunity to secure counsel of his own choice.” State v. Courtney, 696 N.W.2d 73, 81
(Minn. 2005). But, as the district court noted, the right to counsel of choice does not include
the right to appointed counsel of choice. See State v. Vance, 254 N.W.2d 353, 358 (Minn.
1977) (“[T]he right of an indigent to have counsel does not give him the unbridled right to
be represented by counsel of his choice.”). The record supports the district court’s finding
that Albert “provided no information that he was unsatisfied with the Public Defender’s
Office or that he was denied any attempts to actually hire his own attorney.” It follows that
the district court did not violate Albert’s right to counsel of choice. We construe his
argument pertaining to his attorney’s conduct as an additional ineffective-assistance-of-
counsel claim.
Considering the allegations in the petition and taking them as true, we cannot
conclude that counsel’s advice was objectively unreasonable. There are complicated family
dynamics in this case with numerous family members ultimately called to act as witnesses
during the trial. It is not unreasonable that Albert’s attorney advised him to avoid
complicating things further or potentially implicating himself by speaking with others.
Moreover, Albert’s affidavit states that he was instructed not to “talk to anybody about
[his] case or the charges,” which strikes us as distinct from speaking generally about his

24
attorney. While we must take as true that Albert understood counsel’s advice to mean he
could not ask for his family’s help in paying for a private attorney, that understanding was
not an objectively reasonable interpretation of his counsel’s statements. Further, nothing in
the record, nor in Albert’s petition shows that Albert’s counsel had reason to know about
his misunderstanding, because there is nothing to suggest that Albert expressed discontent
with his appointed counsel, inquired about obtaining different counsel, or asked for
clarification on counsel’s advice not to discuss his case. We therefore conclude that Albert
has failed to allege facts showing that counsel was objectively unreasonable in giving the
advice in question. Strickland, 466 U.S. at 688.
Additionally, Albert has also not established prejudice. He did not argue in his
petition or supporting documents that, if he had obtained private counsel, there is a
reasonable probability the outcome of his case would have been different. His ineffective-
assistance-of-counsel claim therefore fails. Id. at 687. It follows that Albert failed to allege
facts that would entitle him to relief and that an evidentiary hearing was unnecessary.
Thoresen, 965 N.W.2d at 303-04. We see no basis to conclude that the district court abused
its discretion because it did not misstate the law, nor did it act in an arbitrary and capricious
manner. Pearson, 891 N.W.2d at 596.
III. Motion for Fees
As a final matter, Albert claims that the district court erred by denying his motion
for expert fees related to his postconviction petition. We do not reach these arguments
because his challenge to the district court’s separate order denying his request for fees is
beyond the scope of our review on this appeal. In our order dissolving the stay of Albert’s

25
direct appeal, we directed that his briefing must be “limited to the issues that were raised
and decided in the postconviction proceeding.” Albert’s motion for expert fees was
independent of his postconviction petition and was resolved separately by the district court.
Affirmed.