                        This opinion will be unpublished and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
                                   A15-0853

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                 Joshua Scott Leithe,
                                     Appellant.

                                  Filed May 2, 2016
                                      Affirmed
                                     Ross, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-14102

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

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Klaphake,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

ROSS, Judge

       Appellant Joshua Leithe pleaded guilty to and was convicted of third-degree assault

for his involvement in a fight at a Minneapolis bar that left Z.M. injured. Leithe petitioned

to withdraw his guilty plea before his sentencing. The district court denied Leithe’s

petition, and we affirm that decision as falling within the district court’s discretion.

                                           FACTS

       Joshua Leithe was involved in a fracas outside a Minneapolis bar in April 2013,

resulting in the state charging him with two offenses: second-degree assault and second-

degree assault for the benefit of a gang. Represented by counsel, Leithe entered into a plea

agreement and pleaded guilty in October 2014.

       Leithe admitted to the following facts when he submitted his guilty plea. According

to Leithe, Leithe was sitting in his car outside a bar when Z.M. approached and tapped on

the window with what Leithe believed was a pocket knife. The two men argued. Z.M.’s

friend pulled Z.M. away from Leithe while Z.M. yelled profanities and swung his knife at

Leithe. At some point, Leithe’s friend left the bar and, seeing the turmoil, charged after

Z.M. Leithe says he warned his friend and then struck Z.M., intending only to disarm him

and to protect his friend. Then Leithe fled.

       Leithe informed the district court that he was pleading guilty to third-degree assault

to avoid the risk of being found guilty and receiving a lengthier prison sentence for second-

degree assault. He said that he understood what he was doing and that he was not under the




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influence of any substance that might affect his plea decision. The district court accepted

Leithe’s guilty plea.

       Two weeks later, however, Leithe was represented by a different attorney and

moved to withdraw his plea. The district court denied Leithe’s motion and sentenced him

to 26 months in prison. This appeal follows.

                                     DECISION

       Leithe argues on appeal that he received constitutionally deficient assistance of

counsel before he entered his guilty plea. He also maintains that the district court abused

its discretion by denying his motion to withdraw his guilty plea. Neither argument

convinces us to reverse.

                                               I

       We first address Leithe’s argument that he received constitutionally deficient legal

counsel before he entered his guilty plea. The Sixth Amendment affords criminal

defendants the right to the effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 685–86, 104 S. Ct. 2052, 2063 (1984). We will reject a claim of ineffective

assistance unless the claimant establishes, among other things, that his attorney’s

performance was objectively unreasonable. Id. at 687–88, 104 S. Ct. at 2064. We follow

“a strong presumption” that the attorney’s conduct was within “the wide range of

reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065. Leithe does not make

the threshold showing of objective unreasonableness.

       Leithe first argues that his attorney improperly advised him of the duty to retreat in

relation to the law of defense of another. Defense of another parallels self-defense. See


                                               3
State v. Granroth, 294 Minn. 491, 492 n.2, 200 N.W.2d 397, 399 n.2 (1972). One element

of self-defense is the lack of the reasonable possibility to retreat to avoid the danger. State

v. Basting, 572 N.W.2d 281, 285 (Minn. 1997). Leithe fails to identify any instruction his

attorney should have provided him either as to his or as to his friend’s duty to retreat before

Leithe attacked. The district court therefore correctly concluded that Leithe failed to

establish that his attorney’s advice was objectively unreasonable.

        Leithe charges that his attorney failed to investigate his case before the plea. But the

charge is belied by the fact that Leithe goes on to challenge the manner in which the

attorney conducted the investigation. To the extent that Leithe challenges the quality of the

investigation, the challenge leads us into the broad range of the discretion afforded to trial

counsel. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (noting that the “extent of

counsel’s investigation is considered a part of trial strategy,” which this court generally

does not review). Leithe’s related contention that his attorney should have interviewed a

potential witness in the presence of the investigator falls into this same category. The Sixth

Amendment is not concerned with an attorney’s conduct that might, with the benefit of

hindsight, appear less than perfect. It is troubled instead only by objectively unreasonable

and therefore constitutionally deficient representation. The investigation here survives that

test.

        Leithe maintains that his attorney had no trial strategy whatsoever. But avoiding

trial can be (and often is) a reasonable strategy. See Brown v. State, 292 Minn. 174, 177–

78, 193 N.W.2d 613, 615–16 (1972) (discussing plea bargain as best possible trial

strategy). Leithe raises other concerns, none of which convinces us of any constitutional


                                               4
infirmity. We have carefully examined all his allegations and the controlling caselaw, and

we are satisfied that Leithe has not presented a persuasive case for ineffective assistance of

counsel under Strickland.

                                              II

       We turn to Leithe’s argument that the district court abused its discretion by denying

his motion to withdraw his guilty plea. A defendant has no absolute right to withdraw a

guilty plea, and whether to allow withdrawal falls within the district court’s discretion.

State v. Raleigh, 778 N.W.2d 90, 93, 97 (Minn. 2010). The district court may allow a

defendant to withdraw a plea before sentencing if doing so is fair and just, weighing the

defendant’s reasons and any competing prejudice to the state’s case. Minn. R. Crim. P.

15.05, subd. 2.

       Leithe contends that the district court should have permitted him to withdraw his

plea for two reasons (in addition to his attorney’s alleged ineffective assistance, which we

have already addressed). He first argues that the district court erred by failing to inquire as

to whether he was satisfied with his attorney’s representation and whether he was coerced

into taking the plea. He next argues that the district court erred when it evaluated the

voluntariness of his plea in light of the emotional pressure he faced.

       We reject Leithe’s contention that the district court erred by failing to inquire into

Leithe’s satisfaction with his attorney or whether he felt coerced into pleading guilty. It is

true that the district court judge must “ensure” that the defendant is satisfied with his

counsel and that he was not threatened or otherwise improperly persuaded to plead guilty.

Minn. R. Crim. P. 15.01, subd. 1(4). But Leithe provided the necessary assurance by


                                              5
signing the plea petition, in which he avowed that he was “satisfied that [his] attorney ha[d]

represented [his] interests and ha[d] fully advised [him].” See Williams v. State, 760

N.W.2d 8, 14–15 (Minn. App. 2009) (concluding that the district court did not err by

“summarily rejecting” the defendant’s claim that her plea was involuntary in the face of

her acknowledgements in her plea petition), review denied (Minn. Apr. 21, 2009).

       We also reject Leithe’s contention that the district court was bound to allow him to

withdraw his plea because he was emotional when he pleaded guilty, affecting the

voluntariness of his plea. The requirement that a plea be voluntary “ensures a defendant is

not pleading guilty due to improper pressure or coercion.” Raleigh, 778 N.W.2d at 96.

Emotion, even open displays of emotion, might reasonably accompany a defendant’s

admission of guilt. Whatever one might infer from Leithe’s emotion at the plea hearing,

Leithe confirmed by signing the plea worksheet that he was pleading guilty “freely and

voluntarily.” Our review of the plea-hearing transcript corroborates this by his repeatedly

stating that he wanted to plead guilty to avoid the risk associated with trial. This reasoning

demonstrates voluntariness, not involuntariness. See State v. Ecker, 524 N.W.2d 712, 719

(Minn. 1994). It is true, as Leithe maintains, that the district court addressed Leithe’s

allegations individually. But this does not mean that the court failed to adequately consider

the plea circumstances in their totality.

       We are satisfied that the district court did not abuse its discretion when it denied

Leithe’s plea-withdrawal request, having reasonably determined that Leithe did not

provide fair and just reasons to withdraw his plea.

      Affirmed.


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