                         This opinion will be unpublished and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
                                    A13-1190

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Brian Jeffrey Copeland,
                                        Appellant.

                                Filed September 8, 2014
                                       Affirmed
                                    Schellhas, Judge

                             Olmsted County District Court
                               File No. 55-CR-12-4531

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Frank Arend Schulte, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant argues that his attorney in district court was ineffective and that the

district court abused its discretion by refusing to sentence him to a downward

dispositional departure. He also raises other arguments pro se. We affirm.
                                           FACTS

          After respondent State of Minnesota charged appellant Brian Copeland with 11

counts of criminal sexual conduct against M.P., Copeland agreed to plead guilty to two

counts of second-degree criminal sexual conduct and one count of third-degree criminal

sexual conduct. The state agreed to dismiss the remaining counts. The parties

acknowledged that the state would seek a guidelines sentence and that Copeland could

seek a downward dispositional departure. At his plea hearing, as factual bases to support

his guilty pleas, Copeland admitted that in November 2002, when he was 18 years old

and his cousin, M.P., was 11 years old, he touched M.P.’s genitals; that in November

2003, when he was 19 years old and M.P. was 12 years old, he repeated this conduct;

and, in November 2008, when M.P. was 17 years old, he penetrated M.P.’s anus with his

finger.

          The district court denied Copeland’s motion for a downward dispositional

departure and imposed concurrent sentences of 21 months’ imprisonment, 27 months’

imprisonment, and 60 months’ imprisonment.

          This appeal follows.

                                       DECISION

Claimed Ineffective Assistance of Counsel

          Copeland argues that he received ineffective assistance of counsel in the district

court.

                Ineffective-assistance-of-counsel claims are generally
                analyzed as trial errors under Strickland v. Washington[, 466
                U.S. 668, 104 S. Ct. 2052 (1984)]. To prevail on a claim


                                               2
              under Strickland, an appellant must demonstrate that
              counsel’s performance fell below an objective standard of
              reasonableness, and that a reasonable probability exists that
              the outcome would have been different but for counsel’s
              errors.

Dereje v. State, 837 N.W.2d 714, 721 (Minn. 2013) (quotations omitted), cert. denied,

134 S. Ct. 1772 (2014). “Trial counsel’s performance is presumed to be reasonable,”

State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014), and “a party claiming ineffective

assistance of counsel must prove both deficient performance and prejudice,” State v.

Dalbec, 800 N.W.2d 624, 627 (Minn. 2011).

       “Generally, a direct appeal from a judgment of conviction is not the most

appropriate way to raise a claim of ineffective assistance of trial counsel because the

reviewing court does not have the benefit of all the facts concerning why defense counsel

did or did not do certain things.” Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995)

(quotation omitted). “The best procedure for raising such a claim . . . is to file a petition

for postconviction relief before appeal.” McKenzie v. State, 754 N.W.2d 366, 369 n.3

(Minn. 2008) (quotations omitted). When the record is inadequate to support an

appellant’s claims, appellate courts may decline to review ineffective-assistance claims

on direct appeal. See, e.g., State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003); State v.

Coe, 290 Minn. 537, 537−38, 188 N.W.2d 421, 422 (1971). But, here, we reach the

merits of Copeland’s ineffective-assistance claim and reject it because, even if his

unsupported allegations are true, his arguments are unpersuasive and any postconviction-

relief petition based on them would fail as a matter of law. Cf. Vang, 847 N.W.2d at 266

(“If the court concludes there are no material facts in dispute that preclude dismissal, and


                                             3
the State is entitled to dismissal of the [postconviction-relief] petition as a matter of law,

the court is not required to hold an evidentiary hearing.”); Hughes v. State, 815 N.W.2d

602, 605 (Minn. 2012) (“Although we would ordinarily remand for further proceedings in

the postconviction court, we conclude that, in light of the specific facts of this case, the

interests of judicial economy will be served by our consideration of the merits of

Hughes’s restitution claims.”), cert. denied, 133 S. Ct. 856 (2013).

       Many of Copeland’s factual assertions are not supported by the record. Copeland

argues that his attorney provided ineffective assistance in connection with his guilty plea,

but the only record facts on which he relies are that (1) his attorney represented him at the

plea hearing when she was not the attorney with whom he primarily prepared for the

hearing and (2) his attorney did not request a continuance. Without record support, he

alleges that his prior attorney advised him to plead not guilty but that, during a four-

minute pre-hearing discussion, his new attorney used “scare tactics” to convince him to

plead guilty. Copeland’s assertions are belied by the fact that, at the plea hearing, he

acknowledged that he had discussed with his prior attorney whether to plead guilty and

that his new attorney was simply “helping [him] enter this plea[,] . . . kind of finaliz[ing]

things.” He also acknowledged that he had not come to court with the expectation that he

would go to trial the next week and that he had been thinking about pleading guilty for a

while. Although Copeland argues on appeal that he was coerced into pleading guilty,

nothing in the record suggests that his answers at the plea hearing were a result of

improper pressure or coercion. Cf. State v. Raleigh, 778 N.W.2d 90, 96 (Minn. 2010)




                                              4
(rejecting Raleigh’s argument that his plea was involuntary when he provided inadequate

explanation as to how improper pressure or coercion influenced his decision).

       Copeland also argues that his attorney provided ineffective assistance in

connection with his sentence, asserting that his attorney should have argued that a victim

advocate, not the victim, authored the victim-impact statement; the state misread a

portion of the victim-impact statement to the district court; and “[his attorney] could

show victim testimony and charges against [Copeland] that directly contradict each

other.” Copeland argues that his attorney indicated that she may have lost some of “seven

letters to the Court in support of Mr. Copeland” and that this showed how “disconnected

[she] was to [his] case.” Without record support, Copeland maintains that his attorney

failed to communicate with him between the plea and sentencing hearings and that a

college intern prepared a PowerPoint presentation given to the district court at

sentencing. But Copeland fails to explain how such conduct overcomes the presumption

that his attorney’s performance was reasonable. See Vang, 847 N.W.2d at 266. This is

particularly true in light of his attorney’s zealous representation at the sentencing hearing,

when she argued for a downward dispositional departure. The record reveals that the

attorney displayed a thorough understanding of Copeland’s case and his troubled past;

family conflict about his sexual orientation; extensive support from family and friends;

steady employment; psychosexual-evaluation results, indicating that Copeland is not a

pedophile; and recent involvement in therapy. Copeland’s mere assertions about his

attorney’s ineffectiveness are unpersuasive, particularly in light of the “strong

presumption” that we “must indulge . . . that counsel’s conduct falls within the wide


                                              5
range of reasonable professional assistance” or, said another way, that “the challenged

action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065 (quotation omitted).

Requested Downward Dispositional Departure

       The presumptive sentences for Copeland’s offenses of second-degree criminal

sexual conduct were stayed sentences of 21 months and 27 months,1 and the presumptive

sentence for Copeland’s offense of third-degree criminal sexual conduct was an executed

sentence of 70 months, the middle of the 60–84 month presumptive range. The district

court sentenced Copeland to 60 months’ imprisonment, the bottom of the presumptive

range. Copeland challenges the district court’s denial of his motion for a downward

dispositional departure as to this sentence. He argues that the district court abused its

discretion in light of his remorse; his low-to-moderate risk of reoffending; the absence of

evidence of him reoffending; his suppressive religious upbringing; and his assertion that

he “has begun to reconcile himself with his sexuality and has transcended his attraction to

his younger cousin,” which he argues that he demonstrated by having a homosexual

relationship with an adult man, noted in the presentence investigation report. The record

reflects that the district court carefully considered all of Copeland’s arguments.

       Appellate courts review the district court’s refusal to depart for an abuse of

discretion. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). “[E]ven if there are

grounds that would justify departure,” we “will not ordinarily interfere with a sentence


1
  The district court executed Copeland’s 21-month and 27-month sentences on
Copeland’s request.

                                             6
falling within the presumptive sentence range.” Id. (quotation omitted). “Departures from

the presumptive sentence are justified only when substantial and compelling

circumstances are present in the record.” State v. Jackson, 749 N.W.2d 353, 360 (Minn.

2008). “[I]t would be a rare case which would warrant reversal of the refusal to depart.”

State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This case is not such a rare case. We

conclude that the district court did not abuse its discretion by refusing to grant

Copeland’s request for a downward dispositional departure.

Pro Se Arguments

       Copeland argues in his pro se supplemental brief that the district court erred by

ordering him to complete conditional release after he completed his sentences of

incarceration and supervised release. He argues that the court retroactively applied a new

rule announced in State ex rel. Peterson v. Fabian, 784 N.W.2d 843 (Minn. App. 2010),

to his November 2002, November 2003, and November 2008 offenses. Copeland’s

argument lacks merit because the court did not apply Peterson. The court instead ordered

Copeland to serve “10 years on conditional release, minus any time served on supervised

release.” Consequently, we do not reach Copeland’s Blakely–Apprendi argument that he

premises on his belief that, in Peterson, we announced a new rule that the district court

applied retroactively in this case.

       Copeland also argues pro se that the district court erred by requiring him to

register as a predatory offender for ten years when “in reality it is lifetime registration”

because, before he pleaded guilty to third-degree criminal sexual conduct, he pleaded

guilty to two second-degree criminal-sexual-conduct counts. But the district court did not


                                             7
impose a lifetime-registration requirement; it imposed a registration requirement as a

condition of his ten-year conditional-release term. We decline to address his argument

because doing so would amount to an advisory opinion concerning error that did not

occur. See Schowalter v. State, 822 N.W.2d 292, 298 (Minn. 2012) (“[W]e do not issue

advisory opinions.”).

       Copeland also argues pro se that the prosecutor “changed the dates of all eleven

counts” after sentencing and that the district court erred by increasing the severity of his

“case” by applying the Hernandez method of sentencing. These arguments are

unpersuasive. The dates in the only complaint in the record, filed about nine months

before sentencing, display no signs of alteration. And, regardless, Copeland’s convictions

were based on his guilty pleas, not the complaint. See Rickert v. State, 795 N.W.2d 236,

243 (Minn. 2011) (“Like a verdict of a jury[, a guilty plea] is conclusive. More is not

required; the court has nothing to do but give judgment and sentence.” (quotation

omitted)). And, as to the district court’s method of sentencing, Copeland fails to support

his argument with citations to the record or legal authority. See State v. Sterling, 834

N.W.2d 162, 177 n.3 (Minn. 2013) (“To the extent that Sterling’s assertions in his pro se

brief are intended to raise other claims without citation to the record or legal authority,

we conclude that those claims, whatever they may be, fail.”).

       Affirmed.




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