                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-0546

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                     Juan Jasso, Jr.,
                                       Appellant

                                 Filed October 27, 2014
                                        Affirmed
                                     Worke, Judge

                             Kandiyohi County District Court
                                 File No. 34-CR-11-920

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his conviction of third-degree criminal sexual conduct,

arguing that the evidence was insufficient to show that the complainant was unable to
withhold consent, and that his counsel was ineffective for misadvising him on his

maximum sentencing exposure. We affirm.

                                         FACTS

       On October 28, 2011, A.R. went to her neighbor’s house for a party where she

consumed alcohol with the other guests, including appellant Juan Jasso, Jr. When A.R.

left around 1:00 a.m., she described herself as stumbling, dizzy, and ready to just go to

sleep. Between leaving the party and arriving home, Jasso asked A.R. “Can I hit that?”

and she responded “No. No. No.” and “Forget about it.” Upon arriving home, A.R.

vomited and then went to bed in her clothes, which still had vomit on them because she

was too intoxicated to clean herself. A.R. next remembers waking up to Jasso pulling her

across her bed by her ankle. When she attempted to crawl away, Jasso hit her tailbone,

which made A.R. unable to move her legs. Jasso grabbed A.R.’s face and blew what

A.R. believed to be crack-cocaine smoke into her mouth.

       Jasso took his clothes off, grabbed A.R. by the back of her head, and forced his

penis into her mouth. A.R. was not able to object to Jasso’s actions because she could

not catch her breath and was having a panic attack. A.R. got sick again and threw up.

Jasso pulled off A.R.’s pants, and A.R. told Jasso “I don’t want to do this. Please just

leave me alone.” Jasso put his penis inside of A.R.’s vagina. A.R. testified that she tried

to grit her teeth and bear it because she could not move her legs, could not catch her

breath, and was very intoxicated. Jasso does not dispute that he engaged in sexual

contact with A.R., but claims the contact was consensual.




                                            2
      After a jury trial, Jasso was found guilty of third-degree criminal sexual conduct

and was sentenced to 131 months in prison.

      Jasso’s trial counsel erroneously advised Jasso that he had only two criminal

history points, which called for a guidelines sentence between 53 and 91 months. Trial

counsel incorrectly believed that one of Jasso’s previous convictions had decayed, and

that he did not have a custody status point. In reality, Jasso had five criminal history

points, which called for a guidelines sentence between 131 and 180 months.

      Prior to trial, Jasso rejected a plea offer. After postconviction proceedings, in

which Jasso and trial counsel testified and disputed the plea offers that were

communicated, the district court found: (1) trial counsel had discussed Jasso’s potential

sentence and plea offers, including the prosecutor’s recorded offer of fourth-degree

criminal sexual conduct; and (2) trial counsel advised Jasso that he would receive a

prison sentence ranging from 53 to 91 months, despite Jasso’s claim he was informed his

maximum sentence would be 48 months.             The district court concluded that Jasso

demonstrated his trial counsel’s representation fell below an objective standard of

reasonableness, but that Jasso did not show but for the ineffective assistance of counsel

he would have accepted the plea offer.

      This appeal follows.

                                    DECISION

Sufficiency of the evidence

      We review a claim of insufficient evidence to determine whether the evidence,

when viewed in the light most favorable to the conviction, is sufficient to allow the jury


                                             3
to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must

assume that “the jury believed the state’s witnesses and disbelieved any evidence to the

contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the

verdict if the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-

77 (Minn. 2004).

       A person is guilty of third-degree criminal sexual conduct when he engages in

sexual penetration with another and “knows or has reason to know that the complainant is

. . . mentally incapacitated[] or physically helpless.” Minn. Stat. § 609.344, subd. 1(d)

(2010).   Sexual penetration includes sexual intercourse and fellatio.       Minn. Stat. §

609.341, subd. 12(1) (2010). A person is mentally incapacitated when the “person[,]

under the influence of alcohol, or a narcotic, . . . administered to that person without the

person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or

sexual penetration.” Id., subd. 7 (2010). A person is physically helpless if she “is (a)

asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of

a physical condition, or (c) unable to communicate nonconsent and the condition is

known or reasonably should have been known to the actor.” Id., subd. 9 (2010). Consent

is present when “words or overt actions . . . indicat[e] a freely given present agreement to

perform a particular sexual act with the actor. Consent does not mean . . . that the

complainant failed to resist a particular sexual act.” Id., subd. 4(a) (2010). “A person




                                             4
who is mentally incapacitated or physically helpless . . . cannot consent to a sexual act.”

Id., subd. 4(b) (2010).

          Two cases provide guidance in deciding this matter. In State v. Blevins, the

complainant went out with friends and consumed several alcoholic drinks. 757 N.W.2d

698, 699 (Minn. App. 2008). The complainant became separated from her friends and

Blevins approached her, led her under a house’s crawl space, and asked if he could

perform oral sex on her. Id. The complainant testified that she was “pretty drunk,” and

told Blevins she did not want oral sex.         Id.   Blevins performed oral sex on the

complainant and then had sexual intercourse with her. Id. Blevins was convicted of

third-degree criminal sexual conduct for sexual contact with a physically helpless victim.

Id. This court reversed his conviction because the complainant verbally expressed to

Blevins that she did not consent to the sexual encounter; therefore, “the evidence [was]

insufficient to demonstrate that she was unable to withhold or withdraw her consent.” Id.

at 701.

          In State v. Berrios, the complainant consumed several drinks, and became so

intoxicated that she had memory gaps and described her state as “‘falling down drunk.’”

788 N.W.2d 135, 137 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010). The

complainant was placed in a bedroom by her coworkers, and the next thing she

remembered was Berrios pulling down her pants. Id. The complainant said “no” and

Berrios stopped, then she passed out. Id. The complainant “later woke up vomiting and

discovered Berrios on top of her with his penis inside her vagina.” Id. She kept passing

out and was unable to move her body. Id. This court upheld Berrios’s third-degree


                                            5
criminal-sexual-conduct conviction, concluding that the jury had ample evidence to

determine that Berrios knew or had reason to know that the complainant “had been

rendered physically helpless by her alcohol consumption.”          Id. at 143.    This court

distinguished the facts in Berrios from Blevins: first, the complainant in Berrios kept

losing consciousness throughout the attack while the complainant in Blevins was awake

at all points; second, the complainant in Berrios needed assistance getting to her room

while the complainant in Blevins was able to walk independently; and third, the

complainant in Berrios was unconscious when penetrated while the complainant in

Blevins was not physically unable to withhold consent even though she felt “ill,

uncomfortable, and afraid.” Id. at 142.

       Here, A.R. was asleep and passed out from intoxication when Jasso came into her

room. Like the complainant in Berrios, A.R. was so intoxicated that she had vomited on

herself. A.R. testified that at one point she was not able to tell Jasso that she did not want

his penis in her mouth because she was having a panic attack and a difficult time

breathing. Therefore, even though A.R. verbally withheld consent during parts of the

assault, at points she was unable to withhold consent because of her level of intoxication

and because she was having a panic attack. Viewing the facts in a light most favorable to

the verdict, we conclude that the evidence sufficiently supports the jury’s verdict.

Ineffective assistance of counsel

       We review the denial of postconviction relief based on an ineffective assistance of

counsel claim de novo because it is a mixed question of fact and law. Hawes v. State,

826 N.W.2d 775, 782 (Minn. 2013). A claim of ineffective assistance of counsel is


                                              6
reviewed under the two-prong test set forth in Strickland v. Washington. State v. Rhodes,

657 N.W.2d 823, 842 (Minn. 2003) (citing 464 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984)). The appellant must show “(1) [that] his counsel’s performance fell below an

objective standard of reasonableness, and (2) that a reasonable probability exists that the

outcome would have been different but for counsel’s errors.” Id. (quotations omitted). A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id.

       Ineffective assistance of counsel occurs in a plea-bargain situation if “there is a

reasonable likelihood that the plea bargain would have been accepted had the defendant

been properly advised.” Leake v. State, 737 N.W.2d 531, 540 (Minn. 2007). When

counsel is ineffective, prejudice can be shown when the “loss of the plea opportunity led

to a trial resulting in a conviction on more serious charges or the imposition of a more

severe sentence.”   Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012).          In evaluating

prejudice, we review the totality of the evidence. Rhodes, 657 N.W.2d at 842. Finally,

“the postconviction court is in a unique position to assess witness credibility,” and is

given considerable deference in this determination. Opsahl v. State, 710 N.W.2d 776,

782 (Minn. 2006).

       Jasso claims his trial counsel did not accurately convey the state’s offer. The

district court found that Jasso’s trial counsel discussed plea negotiations and the state’s

offer for the lesser offense of fourth-degree criminal sexual conduct with Jasso. Jasso




                                            7
does not present convincing facts or arguments to show otherwise.1 It is undisputed,

however, that trial counsel miscalculated Jasso’s criminal history score by multiple

points, and we conclude that trial counsel’s performance in this regard fell below an

objective standard of reasonableness.

       Jasso argues that had he known his actual maximum sentencing exposure there is a

reasonable probability he would have accepted the state’s offer.            Jasso stated at

sentencing that had he known the amount of time he was facing he thinks his decision

would have been different. He stated at the postconviction proceeding that if he knew his

correct criminal history score he would have accepted the state’s offer.

       However, trial counsel testified at the postconviction proceeding that Jasso did

not indicate at any time that he wished to plead guilty and he did not request a pre-plea

investigation. Further, Jasso maintained his innocence throughout the proceedings. Jasso

argues this does not affect his likelihood of accepting a plea because his assertion of

innocence was only in relation to the use of force—a charge on which he was acquitted—

and that he does not deny engaging in sexual contact with A.R. These arguments are not

compelling. Even at sentencing, Jasso stated that the victim was lying about his criminal

conduct, and he did not specify that he thought her lies limited to the use of force.

       Given trial counsel’s testimony and Jasso’s own statements, Jasso’s claim that he

would have accepted that state’s offer is insufficient to meet his burden. Although there

was a significant difference between Jasso’s actual sentence and the “worst case

1
  We note that it is best practice to make a clear record of a defendant’s unwillingness to
take a certain plea to avoid instances, such as this one, in which there is disagreement
about what was offered.

                                              8
scenario” of which he was informed by trial counsel, we conclude that there is not a

reasonable probability that a proper pretrial criminal history score and sentence

guidelines calculation by trial counsel would have led Jasso to do anything other than

take the case to trial.

       Affirmed.




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