                        This opinion will be unpublished and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
                                   A14-1233

                          Lynell Richard Ellison, petitioner,
                                     Appellant,

                                          vs.

                                 State of Minnesota,
                                    Respondent.

                              Filed February 23, 2015
                                     Affirmed
                                  Chutich, Judge

                            Stearns County District Court
                              File No. 73-CR-11-9037

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)


      Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Smith, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Lynell Ellison challenges the denial of his postconviction petition to

withdraw his guilty plea. He argues that his plea was unintelligent because he was
unaware that his first-degree burglary charge included an assault element and that his

plea was involuntary because of improper pressure and ineffective assistance from his

attorney. Because the record shows that Ellison knew his first-degree burglary charge

included an assault element and because his attorney’s performance was not deficient, we

affirm.

                                            FACTS

          In October 2011, Ellison was charged with one count of burglary in the first

degree and one count of terroristic threats.         See Minn. Stat. §§ 609.582, subd. 1(c)

(assaulting a person within the building where the burglary took place), .713, subd. 1

(threat of violence) (2010). He pleaded guilty to the first-degree burglary charge in

exchange for dismissal of the charge of terroristic threats.

          On January 30, 2012, the district court accepted Ellison’s guilty plea and

sentenced him to 58 months in prison, stayed for 20 years, which was a dispositional

departure from the sentencing guidelines.           On August 10, 2012, the district court

executed Ellison’s 58-month sentence after numerous probation violations.

          On January 28, 2014, Ellison filed a petition for post-conviction relief and sought

to withdraw his guilty plea. Ellison argued that his plea was not voluntary because his

attorney exerted improper pressure to plead guilty and failed to advise him that assault

was an underlying element of the first-degree burglary charge.

          The district court denied Ellison’s post-conviction petition, finding that his guilty

plea was voluntary because he was advised that his burglary charge included an assault




                                                2
element, he was not improperly pressured, and he did not receive ineffective assistance of

counsel. This appeal followed.

                                      DECISION

       We review the denial of a petition for postconviction relief for an abuse of

discretion. Ortega v. State, 856 N.W.2d 98, 102 (Minn. 2014). “A postconviction 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.” Riley v. State, 819 N.W.2d 162, 167 (Minn.

2012) (quotation omitted). We review legal issues de novo, and issues of fact are

reviewed to determine whether sufficient evidence in the record supports the

postconviction court’s findings. Ortega, 856 N.W.2d at 102.

       To withdraw a guilty plea after sentencing, a defendant must show that withdrawal

is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1; see also

State v. Raleigh, 778 N.W.2d 90, 93-94 (Minn. 2010).          “We have recognized that

manifest injustice exists where a guilty plea is invalid.” State v. Theis, 742 N.W.2d 643,

646 (Minn. 2007). A valid guilty plea must be accurate, voluntary, and intelligent.

Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). Here, Ellison disputes whether his

plea was voluntary and intelligent.

       A.     Voluntary

       Ellison argues that his plea was involuntary because his counsel improperly

pressured him to accept the plea offer. Ellison contends that his attorney told him that he

would be convicted if he went to trial and had his attorney not exerted this improper

pressure, Ellison would not have pleaded guilty.


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       “To determine whether a plea is voluntary, the court examines what the parties

reasonably understood to be the terms of the plea agreement.” Raleigh, 778 N.W.2d at

96.   This voluntariness requirement ensures that a defendant does not plead guilty

because of improper pressure or coercion. Id. (citing State v. Trott, 338 N.W.2d 248, 251

(Minn. 1983)). When a defendant consistently states on the record that the guilty plea

was freely made and nothing in the record shows evidence of coercion, the defendant has

not presented sufficient evidence of an involuntary plea. State v. Ecker, 524 N.W.2d 712,

718-19 (Minn. 1994); see Erickson v. State, 702 N.W.2d 892, 898 (Minn. App. 2005).

       At his plea hearing, Ellison stated that he had examined the plea agreement

beforehand and discussed it with his attorney. He further stated that his signature was on

it, he understood it, and realized that he was forfeiting his right to a trial. The prosecutor

also asked Ellison whether he was pleading guilty to get out of jail immediately, to which

Ellison responded negatively.

       Even though Ellison affirmed the plea agreement multiple times on the record, he

contends that his plea was still involuntary because his attorney improperly pressured him

to accept it. This claim is similar to one rejected in Ecker. Ecker argued, among other

things, that his guilty plea was involuntary because his attorneys exerted improper

pressure on him and his family to plead guilty. 524 N.W.2d at 719. Ecker’s sister also

testified that Ecker was dissatisfied with his attorneys and that they had pressured Ecker’s

family for the guilty plea. Id. The supreme court affirmed the district court’s denial of

Ecker’s postconviction petition because Ecker repeatedly stated—on the record—that he

was making his own decision. Id.


                                              4
         Like Ecker, Ellison repeatedly stated—on the record—that he understood the plea

agreement and knew which rights he was forfeiting. And compared to Ecker, who had

corroborating testimony from his sister, Ellison has presented even less evidence of

improper attorney pressure. Because Ellison consistently stated on the record that his

guilty plea was freely made, and nothing in the record shows evidence of improper

attorney pressure, we conclude that Ellison has not presented sufficient evidence to show

that his plea was involuntary.

         B.    Intelligent

         Ellison next argues that his plea was not intelligent because his attorney did not

explain that pleading guilty to the burglary charge included an assault element. He

further asserts that had he known of the assault element, he would not have pleaded guilty

because the assault component disqualified him from certain programming within the

department of corrections.

         An intelligent guilty plea ensures that the defendant understands the charges

against him, the rights to be waived, and the plea’s consequences. Raleigh, 778 N.W.2d

at 96. For a plea to be intelligent, a defendant need not be advised of every consequence;

a defendant need only be advised of those direct consequences that flow definitely,

immediately, and automatically from the plea. Alanis v. State, 583 N.W.2d 573, 578

(Minn. 1998), abrogated on other grounds by Campos v. State, 816 N.W.2d 480 (Minn.

2012).

         The record shows that Ellison was aware that his first-degree burglary charge

included an assault element. During the plea hearing, the prosecutor explicitly asked


                                             5
Ellison whether he understood that, as part of his first-degree burglary charge, the state

needed “to prove beyond a reasonable doubt that an assault was committed inside the

[victim’s] residence.” Ellison responded affirmatively. Additionally, Ellison’s complaint

specifically charged him with “assault[ing] a person within the building.”

       Moreover, a defendant need not be advised of every consequence for his plea to be

intelligent, only those direct consequences that flow definitely, immediately, and

automatically from the plea. Alanis, 583 N.W.2d at 578. Ignorance of a collateral

consequence does not entitle a defendant to withdraw a guilty plea. Kim v. State, 434

N.W.2d 263, 266-67 (Minn. 1989). Here, the availability of programming in prison was

a collateral consequence of his guilty plea; the direct consequence was his probation and

stayed sentence.

       Ellison contends that his “difficulty admitting facts to support the assault element

of the burglary charge” shows that he did not understand that assault was an included

element. During the hearing, Ellison was reluctant to admit to the facts that supported the

assault, and he initially denied grabbing a knife. Ellison claims that this confusion and

his initial refusal to admit to picking up the knife showed that he did not understand that

assault was an element of his burglary charge. But when the district court questioned

Ellison further, he admitted to picking up the knife and threatening to kill the victim and

then himself.

       Because the record shows that Ellison understood that assault was an element of

his guilty plea and that he admitted to facts supporting the assault element, his plea was

intelligent.


                                            6
       C.     Ineffective Assistance

       Ellison also argues that he received ineffective assistance of counsel because his

attorney did not explain that assault was an element of his burglary charge. Under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), Ellison contends that his

attorney had a duty to investigate the consequences of pleading guilty to first-degree

burglary with assault because the assault element deprived Ellison of certain

programming in prison.

       If a defendant is represented, the voluntariness of the defendant’s plea turns on the

competence of the attorney’s advice.       Ecker, 524 N.W.2d at 718.         To allege an

ineffective-assistance-of-counsel claim based on the plea process, the defendant must

show that his attorney’s performance was deficient and that this deficiency prejudiced his

defense. Id. To satisfy the first prong, the defendant must show that the representation

fell below an objective standard of reasonableness. Id. To satisfy the second prong, the

defendant must show that a reasonable probability exists that, but for counsel’s errors, the

proceeding would have reached a different result. Id. We review ineffective-assistance-

of-counsel claims de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

       Ellison is correct in stating that an attorney has a duty to investigate the

consequences of a guilty plea under Strickland.         But in Minnesota, an attorney’s

assistance is only ineffective if the attorney fails to advise the defendant of a direct

consequence of pleading guilty. See Sames v. State, 805 N.W.2d 565, 568 (Minn. App.

2011). A direct consequence has “‘a definite, immediate and automatic effect on the




                                             7
range of a defendant’s punishment.’” Id. (quoting Kaiser v. State, 641 N.W.2d 900, 904

n.6 (Minn. 2002)).

       Here, Ellison’s eligibility for available programming while in prison had no

definite, immediate, or automatic effect on the duration of his sentence.           Because

Ellison’s eligibility for programming in prison was not a direct consequence of his guilty

plea, see id., Ellison cannot show that his attorney’s performance was deficient.

       Additionally, Ellison’s claim of ineffective assistance of counsel also fails under

the second prong.     The second prong requires Ellison to show with a “reasonable

probability” that he would not have pleaded guilty had his attorney informed him that his

plea included an assault element. See Ecker, 524 N.W.2d at 718. As discussed above,

the record shows that Ellison was aware that his burglary charge included an assault

element: both the prosecutor and the district court thoroughly questioned Ellison about

the assault element during his plea hearing, and the complaint explicitly charged him with

“assault[ing] a person within the building.”

       In sum, because Ellison’s plea was both voluntary and intelligent, the district court

properly exercised its discretion in denying Ellison’s postconviction appeal.

       Affirmed.




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