                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-1574
                                        A15-1692

Ramsey County                                                               Lillehaug, J.

State of Minnesota,

                      Respondent,
vs.                                                                  Filed: July 6, 2016
                                                              Office of Appellate Courts
Aloeng Kelly Vang,

                      Appellant.

                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant Ramsey County
Attorney, Saint Paul, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

                              ________________________

                                      SYLLABUS

      1.     Minnesota Rule of Criminal Procedure 8.02, subdivision 2, did not require

the State to commence presentation of the case to the grand jury within 14 days of

appellant’s arraignment.

      2.     The postconviction court did not abuse its discretion by denying appellant’s

postconviction claim of ineffective assistance of trial counsel without an evidentiary

hearing.
                                         1
       3.     The postconviction court did not abuse its discretion by denying appellant’s

postconviction claim of prosecutorial misconduct without an evidentiary hearing.

       Affirmed.

                                      OPINION

LILLEHAUG, Justice.

       Appellant Aloeng Kelly Vang was initially charged by complaint with second-

degree intentional murder for the shooting death of Jeffrey Elling. Vang offered to plead

guilty to that charge and serve the statutory maximum sentence of 480 months. The State

rejected Vang’s offer.     One hundred and fifty days after arraignment, a grand jury

indicted Vang for first-degree premeditated murder. The district court denied Vang’s

motion to dismiss the indictment. Vang was convicted and sentenced to life in prison

without the possibility of release.

       Vang appealed his conviction and obtained a stay to pursue postconviction relief.

Without holding an evidentiary hearing, the postconviction court denied relief on Vang’s

claims of ineffective assistance of counsel and prosecutorial misconduct.          In this

consolidated direct appeal and appeal from the denial of postconviction relief, Vang

alleges three grounds for relief. We affirm.

                                               I.

       The facts of the crime are not in dispute.      On September 1, 2013, between

12:30 a.m. and 1:00 a.m., Jeffrey Elling and his girlfriend, D.H., were crossing the street

when Vang sped past them in his car. Vang parked his car in the driveway of his cousin,




                                               2
a neighbor of Elling’s. Elling approached Vang and the two exchanged words. Elling

pushed Vang, who fell to the ground. Then Elling walked back to his house.

       Vang was angry and frustrated about the encounter. He left his cousin’s house,

drove home, and retrieved a firearm from his garage. Vang then returned to Elling’s

house, rang the doorbell, and hid behind a tree. As Elling opened the front door, Vang

fired two shots, one of which struck Elling in the neck. Vang fled the scene while Elling

bled to death. Vang later returned to the scene, identified himself, and was arrested.

       On September 3, 2013, the State filed a complaint charging Vang with one count

of second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2014). The court

held a Rule 8 hearing1 on September 16, 2013. Vang pleaded not guilty.

       Thereafter, on two separate occasions, through his two assistant public defenders,

Vang made formal offers to the prosecutors to plead guilty to second-degree intentional

murder. First, on October 22, 2013, he offered to plead guilty in exchange for receiving a

sentence of 326 months, which is within the presumptive sentencing range of

278-391 months. Second, on January 9, 2014, Vang offered to plead guilty and be

sentenced to the statutory maximum of 480 months. The State rejected both offers.

       The second offer was rebuffed during a conference with the court in chambers,

held off the record, on January 21, 2014. According to the parties, one of the prosecutors

indicated that he was not authorized to provide notice to the defense regarding whether


1
       At a Rule 8 hearing, among other things, the district court informs the defendant of
the charges and certain rights, and arraigns the defendant. See Minn. R. Crim. P. 8.01-
8.02.


                                             3
the State would be submitting the matter to the grand jury. The prosecutor suggested that

Vang’s attorneys attempt to convince managing attorneys in the county attorney’s office

to accept Vang’s most recent offer. Defense counsel then sent a letter to the director of

the criminal division, asking that the county attorney allow Vang to avoid a life sentence.

There was no response.

       On February 12, 2014, a grand jury indicted Vang on charges of first-degree

premeditated murder and second-degree intentional murder. Vang moved to dismiss the

indictment as untimely under Minn. R. Crim. P. 8.02, subdivision 2. The State responded

that it had not provided notice to the court that it would be presenting the case to the

grand jury, and therefore the 14-day deadline in Rule 8.02, subd. 2, had not been

triggered. The court agreed, and denied Vang’s motion to dismiss.

       At the end of a bench trial, the court found Vang guilty on both counts. As

required by statute, Vang was sentenced to life imprisonment without the possibility of

release on the first-degree count. See Minn. Stat. § 609.106, subd. 2 (2014). Vang

appealed.

       We granted Vang’s motion to stay his direct appeal in order to allow him to pursue

postconviction relief. Vang filed a timely petition for postconviction relief, in which he

requested an evidentiary hearing. See generally Minn. Stat. § 590.01 (2014). He argued

that he had received ineffective assistance of trial counsel because counsel did not

schedule a plea hearing directly with the court, pursuant to Minn. R. Crim. P. 14.03(d), in

order to allow Vang to plead guilty to second-degree intentional murder when it was the

only charge pending against him.


                                            4
       Vang’s position was that such a plea would have prevented a first-degree murder

charge. The State countered that the prosecutors would have blocked any guilty plea by

filing a complaint charging Vang with first-degree murder, see Minn. R. Crim. P. 17.01,

subd. 1, or by dismissing the second-degree intentional murder complaint and recharging.

The State acknowledged that “[t]o avoid [the 14-day] time limitation [in Minn. R. Crim.

P. 8.02], the Ramsey County Attorney’s Office did not formally notify petitioner and his

counsel (by filing a complaint or otherwise) of its intention to present first-degree murder

charges to a grand jury.”

       Based on the State’s response, Vang filed an amended petition for postconviction

relief, adding a claim of prosecutorial misconduct. Vang argued that the State made

material misrepresentations to him and the court regarding whether it intended to seek a

first-degree murder indictment. Vang renewed his request for an evidentiary hearing.

       The postconviction court summarily denied relief without a hearing. Regarding

Vang’s ineffective-assistance-of-counsel claim, the court concluded that the performance

of Vang’s attorneys did not fall below an objective standard of reasonableness.

Specifically, the court found that if Vang’s attorneys had attempted to schedule a plea

hearing, the State would have blocked the plea either by dismissing the second-degree

intentional murder charge or by filing a complaint for first-degree premeditated murder.

The court also determined that there was no indication that, but for counsel’s alleged

errors, the outcome of the case would have been different. As to Vang’s prosecutorial-

misconduct claim, the court noted that “[t]here [was] no evidence that prosecutors

planned all along to pursue only first-degree murder charges.” In fact, 3 months of plea


                                             5
negotiations revealed “nothing but good-faith efforts by both sides to resolve this case.”

The court concluded that the prosecutors did not commit misconduct.

                                             II.

       We first address Vang’s claim that is before us on direct appeal. Vang asserts that

the district court erred in denying his motion to dismiss the first-degree murder

indictment as untimely under Minn. R. Crim. P. 8.02, subd. 2. That rule provides:

               If the complaint charges a homicide, and the prosecuting attorney
       notifies the court that the case will be presented to the grand jury, or if the
       offense is punishable by life imprisonment, the defendant cannot enter a
       plea at the Rule 8 hearing.

               Presentation of the case to the grand jury must commence within
       14 days from the date of the defendant’s appearance in the court under this
       rule, and an indictment or report of no indictment must be returned within a
       reasonable time. If an indictment is returned, the Omnibus Hearing under
       Rule 11 must be held as provided by Rule 19.04, subd. 5.

When interpreting one of our rules, “we look first to the plain language of the rule and its

purpose.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 601 (Minn. 2014).

       Vang argues that, because presentation of the case to the grand jury did not

commence within 14 days from the date of his Rule 8 appearance, the indictment should

have been dismissed. As support, he points to the 2009 amendment to Rule 8.02. 2


2
       Prior to the 2009 amendments, the language of what is now Minn. R. Crim. P.
8.02, subd. 2, was part of Minn. R. Crim. P. 8.01, subd. 1, which read in relevant part:

              If the offense charged in the complaint is a homicide and the
       prosecuting attorney notifies the court that the case will be presented to the
       grand jury, or if the offense is punishable by life imprisonment, the
       presentation of the case to the grand jury shall commence within 14 days
       from the date of defendant’s appearance in the court under this rule . . . .


                                             6
Before the amendment, the 14-day period began to run if the prosecuting attorney

notified the court that the case would be presented to the grand jury. Now, Vang argues,

the rule is split between two paragraphs and, thus, the 14-day requirement is no longer

contingent on prosecutor notification.    The result, he posits, is that the period for

indictment now begins to run from the date of the Rule 8 hearing.

       Vang’s reading of Rule 8.02 is not correct; the two paragraphs must be read

together.   See State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011) (requiring

interpretation “as a whole” and in light of the context). The second paragraph is triggered

only by the conditions of the first paragraph: a complaint charging a homicide and

notification by the prosecuting attorney that the case will be presented to the grand jury,

or the charging of an offense punishable by life imprisonment. In this case, the necessary

conditions were not present at the time of Vang’s Rule 8 hearing.           Although the

complaint charged a homicide, the prosecuting attorney did not notify the court that the

matter would be presented to a grand jury. Nor was the charged offense punishable by

life imprisonment. See Minn. Stat. § 609.19, subd. 1 (2014) (stating that second-degree

murder is punishable by imprisonment “for not more than 40 years”). Thus, the 14-day

time period in the second paragraph of Rule 8.02 did not begin to run after Vang’s Rule 8

hearing.

       Vang’s theory is that, when we amended Rule 8, we used a format change in

paragraph structure to announce, essentially, a new substantive rule, namely a 14-day

deadline to charge first-degree murder. That theory is off the mark. The announced

purpose of our 2009 amendments to the Minnesota Rules of Criminal Procedure was


                                            7
stylistic, not substantive. See Minn. Sup. Ct. Advisory Comm. on Rules of Criminal

Procedure, Report & Proposed Amendments to the Minn. Rules of Crim. Proc. for a

Complete Stylistic Revision of the Rules, at 1, No. CX-84-2137 (Apr. 23, 2009) (stating

the goal of the committee was to “stylistically revis[e] and streamlin[e] the Rules without

making substantive changes”). No substantive changes were made to Rule 8.

       Therefore, our holding in State v. Parker, 585 N.W.2d 398 (Minn. 1998), is still

good law. In Parker, we held that “[u]nder [Rule 8], a case must be presented to the

grand jury within 14 days when (1) the offense charged is a homicide and the prosecuting

attorney notifies the court that the case will be presented to the grand jury; or (2) the

offense is punishable by life imprisonment.” Id. at 403. As neither condition was met in

Vang’s case, the State was not required to present the case to the grand jury within

14 days of the Rule 8 hearing.

       Alternatively, Vang argues that the prosecutors triggered the 14-day period during

the January 2014 chambers conference by providing constructive notice of their intent to

present the case to the grand jury. This argument is without merit. By the plain words of

Rule 8.02, assuming the conditions in the rule exist, the 14-day period is triggered no

later than the Rule 8 hearing. There is no 14-day requirement thereafter. Therefore, the

trial court did not err when it denied Vang’s motion to dismiss the first-degree murder

indictment.

                                           III.

       We next address Vang’s postconviction claims. “We review a denial of a petition

for postconviction relief, as well as a request for an evidentiary hearing, for an abuse of


                                            8
discretion.”   Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).            A petition for

postconviction relief may be denied without an evidentiary hearing if “the petition and

the files and records of the proceeding conclusively show that the petitioner is entitled to

no relief.” Minn. Stat. § 590.04, subd. 1 (2014). The postconviction court must consider

the facts alleged in the petition as true and construe them in the light most favorable to

the petitioner. See Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012); Riley, 819 N.W.2d

at 167. “[T]he postconviction court must grant the evidentiary hearing whenever material

facts are in dispute.” Wilson v. State, 726 N.W.2d 103, 107 (Minn. 2007). But the

postconviction court “need not hold an evidentiary hearing when the petitioner alleges

facts that, if true, are legally insufficient to entitle him to the requested relief.” Bobo,

820 N.W.2d at 516.

                                            A.

        The first postconviction issue is whether Vang received ineffective assistance of

trial counsel. Such a claim is a mixed question of law and fact subject to de novo review.

State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).

        Vang contends that he received ineffective assistance because his trial counsel did

not file a written request to schedule an appearance or otherwise arrange for Vang to

plead guilty to second-degree murder. See Minn. R. Crim. P. 14.03(d). Vang asserts that

his trial counsel mistakenly believed that the prosecutors could have blocked his guilty

plea.   But for counsel’s mistake of law, Vang contends, he would not have been

convicted of first-degree premeditated murder because his guilty plea would have caused

jeopardy to attach and precluded a first-degree murder charge.


                                             9
       The Sixth Amendment to the U.S. Constitution guarantees the right to reasonably

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

prevail on a claim of ineffective assistance, “(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 errors, the result of

the proceeding would have been different.” Nicks, 831 N.W.2d at 504 (citing Strickland,

466 U.S. at 687-96). “[T]here is a strong presumption that counsel’s performance was

reasonable.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). “[W]e need not address

both prongs of the [Strickland] test if one is determinative.”          State v. Whitson,

876 N.W.2d 297, 305 (Minn. 2016).

       Vang argues that counsel’s performance became deficient when, after it became

clear that the State would not agree to a straight plea to second-degree murder, his

counsel did not schedule a guilty plea hearing to enter that plea. This claim fails on the

second prong of Strickland. Vang has not proven that he was prejudiced; he has not

shown that, but for the alleged error, the result would have been any different. The

postconviction court is correct that the State could have dismissed the complaint without

the court’s approval even if Vang had procured a plea hearing. See Minn. R. Crim. P.

30.01. The State then could have convened a grand jury, see Minn. R. Crim. P. 18.01,




                                            10
subd. 1, to seek an indictment for first-degree premeditated murder.3 Therefore, the

postconviction court did not err in dismissing this claim without an evidentiary hearing.

                                            B.

       The second postconviction issue is whether the prosecutors committed

misconduct.     Pointing to a prosecutor’s affidavit submitted in the postconviction

proceeding, Vang contends that one line indicates that the prosecutors misled him into

believing that a plea agreement was possible when, in fact, the county attorney planned to

seek an indictment all along. Vang argues that this alleged misrepresentation affected the

way defense counsel approached the case. Vang claims that he did not discover the

alleged misconduct until after trial.

       The district court did not read the prosecutor’s affidavit in the same way Vang

does, and neither do we. The affidavit simply made it clear that the prosecutors were not

authorized to agree to a plea to second-degree murder.        The postconviction court’s

findings that there was no prosecutorial misconduct but only “good-faith efforts by both

sides to resolve the case” are not clearly erroneous and therefore an evidentiary hearing

was unnecessary.

       Therefore, we affirm Vang’s first-degree premeditated murder conviction.

       Affirmed.




3
      We need not decide whether the State could have blocked Vang’s guilty plea by
simply filing a first-degree murder complaint.


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