                           This opinion will be unpublished and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
                                      A15-0684

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                     Earl Lionell Ward,
                                         Appellant.

                                 Filed December 27, 2016
                                        Affirmed
                                     Bratvold, Judge

                                Ramsey County District Court
                                 File Nos. 62-CR-14-3922
                                           62-CR-14-4920

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

BRATVOLD, Judge

         Appellant challenges the district court’s denial of his petition for postconviction

relief, which sought to overturn his convictions for criminal vehicular operation and the
sentence imposed. Appellant argues that his guilty plea was unintelligent, his trial counsel

was ineffective, and the district court improperly imposed a sentence that was an upward

durational departure from the sentencing guidelines. Because Ward’s plea was intelligent,

he failed to demonstrate that his trial counsel’s performance was objectively unreasonable,

and the district court did not abuse its discretion in sentencing him under the career offender

statute, we affirm.

                                            FACTS

         In the early morning hours on July 1, 2014, appellant Earl Lionell Ward drove his

van down a city street at high speed, crashing into a hole in the street and causing severe

injuries to his eight-year-old son and fourteen-year-old daughter who were riding without

seat belts. After the accident, Ward’s son’s leg was “visibly twisted unnaturally with a bone

protruding” and he sustained a displaced femur fracture, requiring surgical repair. Ward’s

daughter was “barely conscious and not moving” after the accident, her spine was almost

severed, and her injuries left her quadriplegic. Ward knew at the time that his son’s leg was

broken and that his daughter was injured, but he did not help them and instead fled the

scene of the accident before law enforcement authorities or medical assistance arrived.

         The state charged Ward with two counts of criminal vehicular operation resulting

in great bodily injury (fleeing the scene) under Minn. Stat. § 609.21, subd. 1(7) (2012). 1

Before the plea hearing, the state filed three notices of its intent to seek an aggravated

sentence. The state also sent Ward’s trial counsel an e-mail stating that it would seek the



1
    The current version of the statute is Minn. Stat. § 609.2113, subd. 1(7) (2014).

                                               2
statutory-maximum sentence regardless of whether Ward pleaded guilty or was found

guilty.

          According to the plea hearing transcript, Ward pleaded guilty. 2 There was no

agreement on sentencing. Ward stated that he understood that the state was seeking an

aggravated sentence, and he waived his right to have a jury decide whether aggravating

factors supported an upward durational sentencing departure, leaving that decision to the

district court. Ward provided a factual basis for the plea, answered questions from his

lawyer, the prosecution, and the district court, and submitted his signed plea petition. The

plea petition was lost from the record and is unavailable for review on appeal.

          The district court accepted Ward’s plea and, later, held a two-day Blakely court-trial

to determine whether aggravating factors supported an upward durational sentencing

departure. The state argued for an upward durational departure based on two factors:

(1) Ward is a “career offender” under Minn. Stat. § 609.1095, subd. 4 (2014) 3; and

(2) Ward committed the crimes with particular cruelty by failing to render aid. Minn. Sent.

Guidelines II.D.3.b.(2) (2012); Tucker v. State, 799 N.W.2d 583, 586–87 (Minn. 2011).

          On the first day of the Blakely trial, the state called Ward’s daughter and son to

testify about the accident. On the second day, the state offered evidence of Ward’s fourteen

prior felony convictions to establish that he is a career offender. Three of these prior



2
  Ward also pleaded guilty to violating a domestic abuse no-contact order as it relates to
his contact with his ex-wife on the night of the accident, but the domestic-abuse guilty plea
is not at issue in this appeal.
3
  The statute in effect at the time Ward committed the offenses is identical to the current
version of the statute. See Minn. Stat. § 609.1095, subd. 4 (2012).

                                                3
convictions involved second-degree assault causing bodily harm, from which the state

argued that Ward engaged in a “pattern of criminal conduct.” The state’s theory was that

Ward’s current and prior conduct formed a pattern of causing bodily injury. On January 26,

2015, the district court sentenced Ward to two consecutive statutory-maximum, 60-month

sentences, expressly relying on the two factors identified by the state for the upward

durational departure from the sentencing guidelines.

       Ward timely appealed the district court’s sentencing order. This court stayed the

appeal pending postconviction proceedings. In his postconviction petition, Ward requested

that the district court either allow him to withdraw his plea or resentence him because:

(1) the state wrongfully induced him into involuntarily pleading guilty by making a false

promise that his children would not be called to testify; (2) his plea was unintelligent

because he did not know the maximum possible sentence before pleading guilty; (3) the

district court improperly applied the career offender statute; and (4) the district court’s

more-than-double durational departure from the sentencing guidelines was unsupported by

severe aggravating factors.

       The district court held an evidentiary hearing on Ward’s plea-withdrawal claims.

Ward’s trial counsel, the trial prosecutor, and Ward testified. Ward testified that he did not

know the maximum possible sentence before pleading guilty and that he was induced into

pleading guilty by the state’s promise that his children would not be called to testify.

       Counsel and the prosecutor testified that neither of them promised Ward that his

children would not be called to testify if he pleaded guilty. Counsel stated that, before the

plea, she advised Ward of the maximum possible sentence and that the state was seeking


                                              4
an aggravated sentence. Additionally, counsel explained that sometime after pleading

guilty but before sentencing, Ward asked her if he could withdraw his plea. She told Ward

that they would need to request a continuance so that conflict counsel could be appointed

to assist him. Counsel testified that she believed conflict counsel was necessary because

Ward’s plea-withdrawal claim was based on the advice she provided Ward about the plea.

       The district court allowed the parties to submit memoranda and took the motion

under advisement. In the district court’s written order denying Ward’s motion, the district

court specifically credited counsel’s testimony and discredited Ward’s testimony. The

district court concluded that the state made no promise that Ward’s children would not be

called to testify, Ward’s plea was intelligent, the evidence sufficiently supported a finding

that Ward had engaged in a pattern of criminal conduct under the career offender statute,

and the district court properly relied on particular cruelty as an aggravated sentencing factor

based on Ward’s failure to render aid to his children. After the district court issued its order,

this court dissolved the stay and reinstated this appeal.

                                       DECISION

I.     Validity of the Guilty Plea

       “When a defendant initially files a direct appeal and then moves for a stay to pursue

postconviction relief, we review the postconviction court’s decisions using the same

standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn.

2012). “We review legal issues de novo, but on factual issues our review is limited to

whether there is sufficient evidence in the record to sustain the postconviction court’s

findings.” Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015) (citation and quotation


                                               5
omitted). When “credibility determinations are crucial, a reviewing court will give

deference to the primary observations and trustworthiness assessments made by the district

court.” State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied

(Minn. June 11, 1997).

       The validity of a guilty plea is a legal issue that this court reviews de novo. State v.

Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “A defendant does not have an automatic right

to withdraw a valid guilty plea.” Weitzel v. State, 883 N.W.2d 553, 556 (Minn. 2016). After

sentencing, a defendant may withdraw a guilty plea upon a timely motion and by

establishing that withdrawal is necessary “to correct a manifest injustice.” Minn. R. Crim.

P. 15.05, subd. 1. The defendant bears the burden of establishing manifest injustice.

Weitzel, 883 N.W.2d at 556.

       A manifest injustice is shown when a guilty plea is not valid. State v. Theis, 742

N.W.2d 643, 646 (Minn. 2007). To be valid, a guilty plea must be accurate, voluntary, and

intelligent. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A plea is intelligent if “the

defendant understands the charges, the rights being waived and the consequences of the

guilty plea.” Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). The maximum sentence

that may be imposed is a direct consequence of a guilty plea. Raleigh, 778 N.W.2d at 96.

“Thus, if a defendant has been advised incorrectly about the sentence flowing from a plea,

the plea may not be accurate, voluntary, and intelligent.” State v. Crump, 826 N.W.2d 838,

842 (Minn. App. 2013), review denied (Minn. May 21, 2013).

       Ward first asserts that his plea is invalid because it was unintelligent. He contends

that, “because the district court failed to inquire at the time of the plea, there is no assurance


                                                6
that Ward understood that the district court could impose two, consecutive, statutory-

maximum, 60-month sentences.” Ward does not argue that he was unaware of the

possibility of receiving two consecutive sentences. See State v. Ferguson, 808 N.W.2d 586,

590 (Minn. 2012) (holding that consecutive sentencing is permissible in cases involving

multiple victims); see also Minn. Stat. § 609.15, subd. 1(a) (2012). Rather, Ward asserts

that he did not know that he could receive the statutory-maximum on each sentence.

       Ward and his trial counsel offered conflicting testimony on this point, and the

district court found counsel’s testimony more credible. Counsel testified that she advised

Ward that the state was seeking an aggravated sentence and that the maximum penalty for

each offense was 60 months. Counsel also explained that, while Ward’s written plea

petition could not be found, it is her practice to fill in the maximum penalty in the

appropriate blank on the plea petition form and to discuss it with her clients.

       Ward’s postconviction testimony was inconsistent with his statements at the plea

hearing. He testified that he was unaware that the state would seek an aggravated sentence.

Yet, according to the transcript of the plea hearing, Ward stated that he understood that the

state was seeking an aggravated sentence. Because the district court was in the best position

to evaluate the trustworthiness of the witnesses, we defer to the district court’s credibility

determinations. Aviles-Alvarez, 561 N.W.2d at 527.

       Ward next argues that this court cannot be sure that he understood the consequences

of his plea because the plea petition is missing from the record. He cites Hoagland v. State,

in which the supreme court remanded the case to the district court for a new hearing

because a state employee lost all of the trial transcripts. 518 N.W.2d 531, 537 (Minn. 1994);


                                              7
see also, e.g., State v. Rhodes, 627 N.W.2d 74, 77 (Minn. 2001) (declining to address

appellant’s insufficiency-of-the-evidence claim due to the incomplete record).

       This case is distinguishable from Hoagland because all trial transcripts are not

missing from the record. See City of Wood Lake v. Johnson, 358 N.W.2d 127, 131 (Minn.

App. 1984) (holding that remand due to an incomplete record is unnecessary if the

complaining party is not prejudiced). The transcripts from the plea hearing and the

postconviction evidentiary hearing are available for our review and are adequate for

assessing the validity of Ward’s guilty plea.

       Moreover, the plea hearing transcript belies Ward’s claim that he did not know the

consequences of pleading guilty. In his testimony, Ward twice stated that he went through

the plea petition “line by line” with counsel. He agreed that he understood everything in

the plea petition and that counsel answered all of his questions before the hearing. He

further stated that he understood that the state was seeking an aggravated sentence.

       Finally, Ward argues that the district court “was required [to] make a specific

inquiry to ensure that Ward understood the maximum direct consequence of his plea.” This

argument lacks merit and is unsupported by Minnesota caselaw. See Perkins v. State, 559

N.W.2d 678, 690 (Minn. 1997) (“[W]hen Perkins entered his guilty plea, the judge did not

directly ask him whether he knew that the court could depart upward to the statutory

maximum. But Perkins did not, and could not, dispute that the plea hearing transcript

reflected that his attorney informed him of the statutory maximum.”); State v. Counard,

299 Minn. 216, 217, 216 N.W.2d 908, 909 (1974) (rejecting the defendant’s argument that

the district court should have interrogated him more thoroughly on the record because the


                                                8
plea hearing transcript showed that the defendant discussed the consequences of the plea

with counsel).

       Ward relies on Minn. R. Crim. P. 15.01, subd. 1(6)(i), which requires the district

court to “ensure [that] defense counsel has told the defendant and the defendant

understands [t]he maximum penalty the judge could impose for the crime charged . . . .”

The plea hearing transcript establishes that the district court adequately complied with rule

15.01. The district court ensured that Ward had spoken with counsel about the plea and

understood the plea, and counsel questioned him on the record about his understanding of

the plea. Therefore, we conclude that Ward has not established that his guilty plea was

unintelligent, and the district court did not err in denying Ward’s motion to withdraw his

guilty plea.

II.    Ineffective Assistance of Counsel

       Ward filed a pro se supplemental brief, arguing that he received ineffective

assistance of counsel because his trial counsel failed to advise him that he could receive a

statutory-maximum sentence after pleading guilty and that his children could be called to

testify. The state contends that this claim is Knaffla-barred because Ward did not raise it in

his postconviction petition. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741

(1976) (“[W]here direct appeal has once been taken, all matters raised therein, and all

claims known but not raised, will not be considered upon a subsequent petition for

postconviction relief.”).

       Because this is Ward’s direct appeal, Knaffla does not apply. Andersen v. State, 830

N.W.2d 1, 10 (Minn. 2013) (holding that, if the trial record is sufficient for analyzing an


                                              9
ineffective-assistance-of-counsel claim, defendant must bring the claim on direct appeal or

it will be Knaffla-barred in future proceedings). Ward timely filed his direct appeal from

the district court’s January 2015 sentencing order, and a claim of ineffective assistance of

counsel may be brought on direct appeal from a sentencing order. See Minn. R. Crim. P.

28.02, subd. 2(1) (“A defendant may appeal as of right from any adverse final judgment,”

including “when the district court enters a judgment of conviction and imposes or stays a

sentence.”). Thus, Ward’s claim of ineffective assistance of counsel is not barred and we

will address the merits of the claim. 4

       Ineffective-assistance-of-counsel claims are reviewed de novo. Opsahl v. State, 677

N.W.2d 414, 420 (Minn. 2004). In Strickland v. Washington, the Supreme Court provided

a two-part test for establishing ineffective assistance of counsel. 466 U.S. 668, 687 104 S.

Ct. 2052, 2064 (1984). First, “the defendant must prove that counsel’s representation fell

below an objective standard of reasonableness.” State v. Nicks, 831 N.W.2d 493, 504

(Minn. 2013) (citing Strickland, 466 U.S. at 687–96, 104 S. Ct. 2052). Second, “the

defendant must prove there was a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.” Id. This court “strongly presume[s]

that counsel’s performance was reasonable.” State v. Whitson, 876 N.W.2d 297, 305 (Minn.

2016). This court “need not address both prongs of the test if one is determinative.” Id.


4
  The state cites Perry v. State, which held that “[c]laims asserted in a second or subsequent
postconviction petition are procedurally barred under this court’s Knaffla rule if they could
have been raised on direct appeal or in a previous postconviction petition.” 731 N.W.2d
143, 146 (Minn. 2007) (emphasis added). Perry is inapposite because Ward brings his
ineffective-assistance-of-counsel claim in his direct appeal and has not filed a “second or
subsequent postconviction petition.”

                                             10
       Ward asserts that his trial counsel was ineffective for three reasons: (1) she did not

advise him of the maximum possible sentence; (2) she did not advise him that his children

might be called to testify at the Blakely court-trial; and (3) she did not allow him to

withdraw his guilty plea. 5

       Ward’s trial counsel’s performance was not objectively unreasonable. As we have

discussed, counsel testified that she advised Ward of the maximum sentence before he

pleaded guilty. She also stated that she did not tell Ward “that his children would never be

called to testify,” and she testified that the state never made such a promise. Counsel further

explained that sometime after the plea hearing but before sentencing, Ward told her that he

wanted to withdraw his plea. Counsel advised him that, because his plea-withdrawal claim

“was specifically about advice” that she had or had not given him, they would have to

request a continuance so that conflict counsel could be appointed to assist Ward. See Butala

v. State, 664 N.W.2d 333, 341 (Minn. 2003) (holding that “the better procedure” in cases

where the defendant moves to withdraw a guilty plea based on inadequate trial counsel is

to “afford substitute counsel for purposes of making the motion”). Ward apparently chose

not to pursue such a continuance. The credibility of this testimony was for the district court




5
  Ward attaches two handwritten letters to his appellate brief, which he claims show that
his trial counsel was ineffective. We will not consider these letters because they are outside
the record on appeal. Minn. R. Civ. App. P. 110.01 (providing that the record on appeal
consists of all documents filed in the district court and transcripts); Plowman v. Copeland,
Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (“It is well settled that an appellate court
may not base its decision on matters outside the record on appeal, and that matters not
produced and received in evidence below may not be considered.”).

                                              11
to evaluate, and we will not disturb the district court’s decision to credit counsel’s

testimony over Ward’s testimony. Aviles-Alvarez, 561 N.W.2d at 527.

       Because Ward has failed to demonstrate that his trial counsel’s performance was

objectively unreasonable, he does not meet the first prong of the Strickland test and we do

not address the second prong of the test. Whitson, 876 N.W.2d at 305.

III.   Aggravated Sentence

       This court reviews “a district court’s decision to depart from the presumptive

guidelines sentence for an abuse of discretion.” State v. Hicks, 864 N.W.2d 153, 156 (Minn.

2015). “If the reasons given for an upward departure are legally permissible and factually

supported in the record, the departure will be affirmed. But if the district court’s reasons

for departure are improper or inadequate, the departure will be reversed.” State v. Edwards,

774 N.W.2d 596, 601 (Minn. 2009) (quotation omitted). Thus, two requirements must be

met to support an upward sentencing departure: “(1) a factual finding that there exist one

or more circumstances not reflected in the guilty verdict or guilty plea, and (2) an

explanation by the district court as to why those circumstances create a substantial and

compelling reason to impose a sentence outside the range on the grid.” State v. Rourke, 773

N.W.2d 913, 919 (Minn. 2009). The state must prove to a factfinder beyond a reasonable

doubt that aggravating factors support an upward sentencing departure. Id.

       The district court based its decision to impose an upward durational departure on

two aggravating factors: (1) the state proved Ward was a career offender under the

applicable statute; and (2) Ward committed the crimes with particular cruelty by failing to

render aid to his injured children after the accident. Because we conclude that the first


                                            12
ground independently supports the district court’s sentence, we do not address the second

ground.

       The career offender statute provides:

              Whenever a person is convicted of a felony, and the judge is
              imposing an executed sentence based on a Sentencing
              Guidelines presumptive imprisonment sentence, the judge may
              impose an aggravated durational departure from the
              presumptive sentence up to the statutory maximum sentence if
              the factfinder determines that the offender has five or more
              prior felony convictions and that the present offense is a felony
              that was committed as part of a pattern of criminal conduct.

Minn. Stat. § 609.1095, subd. 4.

       Thus, to establish that a defendant is a career offender, the state must prove three

elements beyond a reasonable doubt: (1) the current crime for which the defendant is being

charged is a felony; (2) the defendant has at least five prior felony convictions; and (3) the

current crime is part of a pattern of criminal conduct. Id.; State v. Gorman, 546 N.W.2d 5,

7 (Minn. 1996).

       A determination on the third element must be submitted to a factfinder; it is not a

legal conclusion. State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005). We review the

record to determine whether there is sufficient evidence supporting the factfinder’s

determination that the felony was committed as part of a pattern of criminal conduct. State

v. Outlaw, 748 N.W.2d 349, 357 (Minn. App. 2008). “In reviewing a challenge to the

sufficiency of the evidence, [this court is] limited to determining whether the evidence was

sufficient to support the conclusion reached by the [factfinder],” and this court views the

evidence in the light most favorable to the factfinder’s determination. Id.



                                               13
       If the factfinder concludes that the state has met each element of the career offender

statute, “[t]he statute does not limit the court’s discretion [or] require any additional

findings before sentencing a defendant to the statutory maximum.” Vickla v. State, 793

N.W.2d 265, 269–71 (Minn. 2011). Thus, “the statute authorize[s] the sentence to be

increased to the statutory maximum without the presence of severe aggravating

circumstances.” Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003).

       Here, Ward waived his right to have a jury determine whether aggravating factors

supported an upward durational departure. See State v. Dettman, 719 N.W.2d 644, 650–51

(Minn. 2006) (holding that a defendant may waive the right to have a jury determine

whether aggravating factors exist for an upward durational departure). After hearing

evidence, the district court concluded that the state met its burden of proving each element

of the career offender statute beyond a reasonable doubt. The first two elements are not at

issue on appeal: the crime for which Ward was sentenced is a felony, and the state

submitted evidence showing that Ward has at least five prior felony convictions.

       Regarding the third element, the state relies on three of Ward’s prior felony

convictions in establishing that the sentencing offense is part of a pattern of criminal

conduct: (a) second-degree assault for pointing a gun at and shooting a victim; (b) aiding

and abetting another person to commit second-degree assault by encouraging the other

person to shoot a victim; and (c) second-degree assault for hitting a victim with a board.

Ward contends that, because he did not intend to injure his children, there was insufficient

evidence for the district court to conclude that his conduct in this case forms a pattern with

his prior assault convictions, which involved intentional infliction of harm.


                                             14
       The district court determined that Ward’s convictions for criminal vehicular

operation formed a pattern of criminal conduct with his three prior assault convictions

because they “involved behavior in great disregard for human life and for public safety.”

The district court found that “[t]he similar characteristics in these crimes is, of course, the

resulting injuries upon other persons.”

       Precedent instructs our review of the district court’s reasoning. In State v. Gorman,

the Minnesota Supreme Court held that a pattern of criminal conduct “may be demonstrated

by proof of criminal conduct similar, but not identical, in motive, purpose, results,

participants, victims or other shared characteristics.” 546 N.W.2d at 9. Gorman specifically

rejected the argument that it is impossible to form a pattern of unintentional criminal

conduct. Id. at 8–9. Consistent with Gorman, the district court determined that Ward’s

three prior assault convictions formed a pattern of criminal conduct with his criminal

vehicular operation convictions because the conduct underlying all of Ward’s convictions

share the characteristic of causing bodily injury.

       Ward argues that the “people got hurt” link is “tenuous” because it does not take

into account that his prior convictions required intent, but intent is not an element of

criminal vehicular operation. Gorman’s definition of a “pattern of criminal conduct” is not

so narrow. Gorman expressly states that a pattern can arise out of conduct similar in

“motive, purpose, result, participants, victims, or other shared characteristics.” Id. at 9

(emphasis added). Accordingly, criminal conduct that produces similar results falls within

Gorman’s definition of “pattern of criminal conduct” regardless of the defendant’s intent.




                                              15
       Finally, we assess whether the district court abused its discretion by departing from

the guidelines and sentencing Ward to two consecutive statutory-maximum sentences. The

district court did not abuse its discretion because the career offender statute alone is an

adequate legal basis for imposing two consecutive statutory-maximum sentences.

Ferguson, 808 N.W.2d at 590; Vickla, 793 N.W.2d at 269–71; see also State v. Stanke 764

N.W.2d 824, 828–29 (Minn. 2009) (remand for resentencing is not required so long as the

appellate court determines that the district court would impose the same sentence relying

on at least one proper aggravating factor). Moreover, the district court’s sentencing

decision was well-reasoned after full consideration of the presentence investigation report,

victim statements, and Ward’s statements to the district court. Accordingly, we affirm the

district court’s sentence based on the career offender statute, and we do not address the

district court’s reliance on particular cruelty as an aggravating factor.

       Affirmed.




                                              16
