                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1351

                             Jeffrey Edward Morey, petitioner,
                                        Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                     Filed June 6, 2016
                                         Affirmed
                                      Peterson, Judge

                               Winona County District Court
                                 File No. 85-CR-14-1789

Andrew M. Irlbeck, Andrew Irlbeck Lawyer Chtd., St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Karin L. Sonneman, Winona County Attorney, Kevin P. O’Laughlin, Erin C. Stephens,
Assistant County Attorneys, Winona, Minnesota (for respondent)

         Considered and decided by Jesson, Presiding Judge; Peterson, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from the denial of his postconviction motion to withdraw his guilty

plea, appellant argues that his plea was inaccurate because it was not supported by a proper

factual basis and was involuntary because he received ineffective assistance of counsel
before and during the plea hearing. Because appellant’s plea was accurate and voluntary,

we affirm.

                                           FACTS

       On July 23, 2014, law enforcement was called to investigate a report of suspected

gunshots and was notified that a person wearing camouflage clothing may have fired the

shots. Appellant Jeffrey Morey and two other men were present when law enforcement

arrived at the scene, and Morey was wearing a camouflage jacket. The chief of police

approached the men and asked whether anyone had a firearm, and Morey volunteered that

he did have a firearm. The police chief removed a firearm from a holster inside Morey’s

clothing. A sheriff’s deputy conducted a pat down of Morey and discovered a second

firearm.

       According to the complaint, the sheriff’s deputy also discovered “a plastic bag that

contained a small amount of suspected marijuana” and a “silver pipe [that] was of a type

used to smoke marijuana” and “smelled of marijuana.” Also according to the complaint,

Morey “admitted [that] he last smoked marijuana the day before” and “told [the] Deputy

that [he] uses marijuana to help him with pain in his back.” Morey had a permit to carry a

firearm, and law enforcement discovered that the suspected gunshots were actually the

sound of a vehicle’s tire being slashed.

       Morey was charged with being an ineligible person in possession of a firearm

(unlawful user of a controlled substance) under Minn. Stat. § 624.713, subd. 1(10)(iii)

(2012). He moved for suppression of evidence and dismissal of the charge on the basis of

an unconstitutional pat-down search. The district court denied the motion because it


                                             2
determined that the pat down was supported by reasonable suspicion that Morey was

engaged in criminal activity and was armed and dangerous.

       Morey then signed a plea petition and agreed to plead guilty to the charged offense.

In the plea petition, Morey: (1) acknowledged that he received and read a copy of the

complaint and understood the charge; (2) confirmed that he was given sufficient time to

discuss his case with an attorney and was satisfied with the representation provided by his

attorney; (3) agreed to waive his right to a jury trial or court trial where the state would be

required to prove his guilt beyond a reasonable doubt and where he could cross-examine

the state’s witnesses, call favorable witnesses, and choose whether to testify; and

(4) affirmed that nobody made promises or threats to induce his plea.

       During the plea hearing, Morey confirmed that he understood and was guilty of the

charge and agreed to a sentence that included unsupervised probation, 20 hours of

community service, and wearing a drug patch for six months. He also confirmed that he

understood and wished to waive his rights to a trial and to remain silent. He acknowledged

that he reviewed the plea petition with his attorney, read and understood it, and signed it

that day. Morey then admitted that, on July 23, 2014, he had two firearms on his person

and that an officer “frisked [him] and found a small amount of marijuana in [his] pocket.”

He acknowledged that he “admitted [to officers] that [he] had on occasion used marijuana

to ease and relax the discomfort [he] feel[s in his] back,” and he admitted that his use of

marijuana is illegal.

       The district court found that a proper factual basis supported Morey’s plea and that

the plea was knowing, intelligent, and voluntary. The court ordered Morey to complete


                                              3
two years of unsupervised probation, and the terms of probation included performing 20

hours of community service, submitting to random drug and alcohol testing, and using a

drug patch for six months.

       Morey later moved to withdraw his guilty plea. He maintained that his plea was not

supported by a proper factual basis because “there was no finding that he had used

[marijuana] recently, that he was using it on the day of his arrest, when the last time he

used it was, whether he used it regularly, or whether he had ever been treated for chemical

dependency.” He also maintained that he received ineffective assistance of counsel

because his attorney failed to move to suppress the marijuana, failed to disclose a conflict

of interest, failed to inform Morey that he would need to wear a drug patch as a condition

of probation, and coerced Morey into pleading guilty.

       During a hearing on his motion, Morey testified that his attorney told him before the

plea hearing that he “did not have a right to a trial,” “the Court [had] found [him] guilty,”

and he “ha[d] to plead guilty.” Morey denied reading the plea petition or reviewing it with

his attorney, and he testified that his attorney failed to inform him before the plea hearing

that he would need to wear a drug patch as a condition of probation. The district court

denied Morey’s motion. The court determined that the plea was supported by a proper

factual basis and that Morey’s allegations against his attorney were not credible. This

appeal follows.

                                     DECISION

       “At any time the court must allow a defendant to withdraw a guilty plea upon a

timely motion and proof to the satisfaction of the court that withdrawal is necessary to


                                             4
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists

if a guilty plea is not valid.” Barrow v. State, 862 N.W.2d 686, 691 (Minn. 2015). To be

valid, a guilty plea must be accurate, voluntary, and intelligent. Id.

       “A defendant who seeks to withdraw his guilty plea under Rule 15.05 after

sentencing must bring the motion to withdraw in a petition for postconviction relief.” State

v. Hughes, 758 N.W.2d 577, 582 (Minn. 2008). A denial of postconviction relief is

reviewed for an abuse of discretion, with legal conclusions reviewed de novo and findings

of fact reviewed for clear error. McKenzie v. State, 872 N.W.2d 865, 870 (Minn. 2015).

“Determining the validity of a guilty plea presents a question of law subject to de novo

review.” Barrow, 862 N.W.2d at 689.

   1. Accurate Plea

       The requirement that a plea be accurate “protect[s] a defendant from pleading guilty

to a more serious offense than he could be convicted of if he were to go to trial.” Matakis

v. State, 862 N.W.2d 33, 37 (Minn. 2015) (quotation omitted). A proper factual basis must

be established for a plea to be accurate. Barrow, 862 N.W.2d at 691. A district court

“should not accept a guilty plea unless the record supports the conclusion that the defendant

actually committed an offense at least as serious as the crime to which he is pleading

guilty.” Id. (quotation omitted).

       “The district court typically establishes a factual basis by asking the defendant to

express in his own words what happened.” Id. But “even if a district court does not elicit

proper responses, a defendant may not withdraw his plea if the record contains sufficient

evidence to support the conviction.” Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012)


                                              5
(quotations omitted) (stating that “the plea petition and colloquy may be supplemented by

other evidence to establish the factual basis for a plea”). Minnesota courts reviewing the

adequacy of a factual basis have looked to the complaint to supplement the defendant’s

admissions. See, e.g., State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (“The record also

contains a copy of the complaint and defendant, by his plea of guilty, in effect judicially

admitted the allegations contained in the complaint.”); Williams v. State, 760 N.W.2d 8, 13

(Minn. App. 2009) (“[T]he sworn complaint, which was part of the record at the time of

the plea and referred to at the plea hearing, summarizes witness testimony that showed, in

all likelihood, that [defendant] committed both crimes.”), review denied (Minn. Apr. 21,

2009).

           A person “shall not be entitled to possess ammunition or a pistol or semiautomatic

military-style assault weapon or . . . any other firearm” if he “is an unlawful user of any

controlled substance as defined in chapter 152[.]” Minn. Stat. § 624.713, subd. 1(10)(iii);

see also Minn. Stat. § 152.02, subd. 2(h) (Supp. 2013) (classifying marijuana as a Schedule

I controlled substance). Morey admitted during the plea hearing that he had two firearms

and a small amount of marijuana on his person on July 23, 2014. He acknowledged that

he “admitted [to officers] that [he] had on occasion used marijuana to ease and relax the

discomfort [he] feel[s in his] back,” and he also acknowledged that his use of marijuana is

illegal.

           The state alleged in the complaint that the sheriff’s deputy who conducted the pat

down and discovered the marijuana also discovered a “silver pipe [that] was of a type used

to smoke marijuana” and “smelled of marijuana.” The state further alleged in the complaint


                                               6
that Morey “admitted [that] he last smoked marijuana the day before” and that he “told

[the] Deputy that [he] uses marijuana to help him with pain in his back.” By signing the

plea petition, Morey acknowledged that he “ha[d] received, read and discussed a copy of

the Complaint” and “underst[oo]d the charges made against [him] in this case.” The district

court referred to the complaint during the plea hearing and confirmed with Morey that he

understood the charge.

       Morey contends that the factual basis is insufficient to establish that “he possessed

a firearm at the same time that he was a controlled substance user.” He maintains that his

acknowledgment during the plea hearing that he “had on occasion used marijuana”

establishes only that he “used marijuana . . . at some time in the past” and not necessarily

when he possessed a firearm. But during the plea hearing, Morey clearly conveyed to the

district court that he was a current controlled-substance user and used marijuana for his

back pain. And the complaint provides additional evidence that Morey was a current

marijuana user. The record contains a proper factual basis to support the conclusion that

Morey committed the charged offense, and his guilty plea was accurate.

   2. Voluntary Plea

       Morey argues that his guilty plea was involuntary because, for several reasons, he

received ineffective assistance of counsel. The requirement that a plea be voluntary

“ensures a defendant is not pleading guilty due to improper pressure or coercion.” State v.

Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). “To satisfy a claim of ineffective assistance of

counsel, (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


                                             7
probability that, but for counsel’s errors, the result of the proceeding would have been

different.” State v. Taylor, 869 N.W.2d 1, 21 (Minn. 2015) (quotation omitted) (citing

Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984)).

       “When an accused is represented by counsel, the voluntariness of the plea depends

on whether counsel’s advice was within the range of competence demanded of attorneys

in criminal cases.” State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (quotations omitted).

“The objective standard of reasonableness is defined as representation by an attorney

exercising the customary skills and diligence that a reasonably competent attorney would

perform under similar circumstances.” State v. Vang, 847 N.W.2d 248, 266 (quotations

omitted).   “In cases in which the [defendant] pleads guilty, the [defendant] must

demonstrate a reasonable probability that, but for counsel’s ineffective representation, he

would not have entered his plea.” Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).

An appellate court may dispose of an ineffective-assistance-of-counsel claim on one prong

of the Strickland analysis without considering the other prong. Nissalke v. State, 861

N.W.2d 88, 94 (Minn. 2015).

   a. Coercion to plead

       Morey contends that the representation provided by his attorney was ineffective and

he was coerced into pleading guilty because his attorney told him “that the court had

decided he was guilty, that he had no right to a trial, and that his only option was to plead

guilty to the charged offense.” He further contends that his attorney did not show him a

copy of the plea petition or review the petition with him and only directed him to sign the

last page of the petition. Morey relies on his own testimony and affidavit to support his


                                             8
assertions that he was coerced into pleading guilty. But the district court determined that

these assertions were contradicted by the record and were not credible. “Because the

postconviction court is in the best position to evaluate witness credibility, [an appellate

court] review[s the] credibility determinations under the clearly erroneous standard.” Bobo

v. State, 860 N.W.2d 681, 684 (Minn. 2015) (quotation and citation omitted); see also State

v. Ali, 855 N.W.2d 235, 245 (Minn. 2014) (“In order for a credibility determination to be

clearly erroneous, we must be left with the definite and firm conviction that a mistake has

been made.” (quotation omitted)).

        Morey acknowledged during the plea hearing that he reviewed the plea petition

with his attorney and read, understood, and signed the petition. The plea petition informed

Morey that he had a right to a jury trial or court trial where the state would be required to

prove his guilt beyond a reasonable doubt and where he could cross-examine the state’s

witnesses, call favorable witnesses, and choose whether to testify. Morey confirmed during

the plea hearing that he understood and wished to waive his right to a trial. Based on this

record, we are not left with a definite and firm conviction that the district court was

mistaken when it determined that Morey’s allegations of coercion by his attorney were not

credible. Morey has not proved that his attorney provided representation that fell below an

objective standard of reasonableness.

   b. Drug patch

       Morey asserts that his attorney provided ineffective assistance by failing to inform

him that he would need to wear a drug patch as a condition of probation. “To determine

whether a plea is voluntary, the court examines what the parties reasonably understood to


                                             9
be the terms of the plea agreement.” Raleigh, 778 N.W.2d at 96. During the plea hearing,

Morey’s attorney recited the terms of the plea agreement and the stipulated sentence, which

included that Morey “w[ould] utilize the drug patch for a period of six months.” The

district court then confirmed with Morey that he wished to plead guilty and that he agreed

to the sentence. Morey did not object or ask questions when his attorney mentioned the

drug patch or when the district court ordered him to wear a drug patch for six months. Even

if Morey and his attorney did not discuss a drug patch before the plea hearing, Morey stated

during the plea hearing that he wished to plead guilty, and he proceeded to plead guilty,

knowing that wearing a drug patch for six months would be a condition of probation.

Morey has not demonstrated a reasonable probability that, but for the alleged failure by his

attorney, he would not have pleaded guilty.

   c. Conflict of interest

       Morey argues that he received ineffective legal representation because his attorney

“very likely” simultaneously represented Morey and one of the sheriff’s deputies who was

at the scene of the pat down, which created a conflict of interest. “A lawyer’s performance

is deficient if he represents a client despite having a conflict of interest.” State v. Paige,

765 N.W.2d 134, 140 (Minn. App. 2009) (citing Wood v. Georgia, 450 U.S. 261, 271-72,

101 S. Ct. 1097, 1103-04 (1981)); see also Minn. R. Prof. Conduct 1.7(a) (stating that

conflict of interest exists if “the representation of one client will be directly adverse to

another client” or “there is a significant risk that the representation of one or more clients

will be materially limited by the lawyer’s responsibilities to another client, a former client

or a third person, or by a personal interest of the lawyer”).


                                              10
       Morey contends that Winona County Sheriff’s Deputy Morken was at the scene of

the pat down. Morey provides no support for this assertion, and the documents and

testimony in the record do not indicate that Morken was at the scene. Furthermore, Morey

presumes that his attorney was simultaneously representing Morey and Morken because

Morken allegedly committed crimes before Morey’s case was resolved. But Morey

acknowledges that he does not know when his attorney began representing Morken, and

Morey’s attorney filed a certificate of representation in Morken’s case after Morey’s plea

and sentencing hearing were completed. Morey has not established that a conflict of

interest existed and has not proved that his attorney’s representation fell below an objective

standard of reasonableness.

   d. Motion to suppress

       Finally, Morey argues that his attorney provided ineffective assistance by failing to

move to suppress the marijuana discovered on his person. He contends that, if his attorney

had brought such a motion, there is a reasonable probability that the case against him would

have been dismissed. Although Morey’s memorandum on his suppression motion focused

on the discovery of the firearms, he moved to suppress “any evidence against [him]

obtained as the result of” the pat down. The district court ruled that the pat down was

supported by reasonable suspicion that Morey was engaged in criminal activity and was

armed and dangerous.

       Morey could have appealed the court’s suppression order but did not do so.

Although Morey testified during the postconviction hearing that his attorney coerced him

into pleading by telling him that he could not appeal the suppression order, the district court


                                              11
determined that Morey’s assertions of pressure and coercion by his attorney were not

credible.   As we have already stated, this credibility determination was not clearly

erroneous. Morey has not proved that his attorney provided ineffective assistance by

failing to move to suppress the marijuana.

       Morey has not established that he received ineffective assistance of counsel.

Because Morey’s guilty plea was both accurate and voluntary, we affirm the district court’s

denial of his motion to withdraw his plea.

       Affirmed.




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