Ho v. State
| Decision Date | 14 December 2020 |
| Docket Number | A19-2035 |
| Parties | Mitchell Le Dac Ho, petitioner, Appellant, v. State of Minnesota, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Hennepin County District Court
File Nos. 27-CR-17-32319, 27-CR-18-7511
Charles L. Hawkins, Minneapolis, Minnesota (for appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Gaïtas, Judge.
UNPUBLISHED OPINION
Appellant Mitchell Le Dac Ho challenges the postconviction court's order denying his petition for postconviction relief. Ho argues that he is entitled to withdraw his guilty pleas to two counts of third-degree criminal sexual conduct because his trial attorney provided ineffective assistance of counsel by misinforming him about the availability of a consent defense, and by misleading him about the possibility of a life sentence. He also argues that his guilty pleas were invalid because they were not knowing, intelligent, and voluntary.
We conclude that Ho's attorney was not ineffective and that Ho's guilty pleas were valid. We affirm.
Ho worked as a massage therapist at a massage franchise. In 2017 and 2018, the state filed three criminal complaints, each charging Ho with a single count of third-degree criminal sexual conduct under Minnesota Statutes section 609.344, subdivision 1(o) (2016). The complaints alleged that Ho had sexually assaulted three female clients while providing massages during his employment. Two complainants were adults and one was a juvenile.
Guilty pleas and sentencing
In June 2018, Ho entered into a plea agreement with the state, pleading guilty to third-degree criminal sexual conduct in two cases, including the case involving the juvenile complainant. The state dismissed the third case and agreed not to charge a fourth case involving a fourth complainant. Additionally, the state agreed to a sentencing cap of 82 months' imprisonment. Under the agreement, Ho would be free to pursue a downward departure at sentencing.
At the plea hearing, the district court found that Ho's waiver of his trial rights was knowing, intelligent, and voluntary. To establish a factual basis for the pleas, Ho admitted that he sexually assaulted two paying clients while performing massages. He testified that, in January 2016, he digitally penetrated an adult client's vagina without her consent. Ho admitted that in September 2017, he digitally penetrated a juvenile client's vagina without her consent.
After the plea hearing, Ho's attorney filed a motion for a downward departure from the sentencing guidelines, requesting either a dispositional or durational departure. At the sentencing hearing, Ho expressed remorse, stating that he had "believed [his] actions were consensual at the time," but he had "misread the situations." He accepted that his actions were criminal, and he apologized for the pain that he caused the victims and their families. The district court acknowledged that Ho had expressed remorse and accepted responsibility, and noted that the defense had submitted an "excellent" sentencing memorandum and many favorable letters on behalf of Ho. But the district court also stated that it had to consider the nature of the offenses, which were committed against multiple women in a vulnerable position over a span of many months. The district court ultimately sentenced Ho to concurrent prison sentences of 42 months and 62 months.1
Postconviction proceedings
Several months later, in January 2019, Ho petitioned for postconviction relief. He alleged that his trial counsel had been ineffective and that his guilty pleas had not been knowing, voluntary, and intelligent. The postconviction court held an evidentiary hearing. During the hearing, the postconviction court received several exhibits and heard testimony from Ho, his trial attorney, his mother, and a criminal-defense expert witness.
Ho's trial counsel testified that she had mistakenly informed Ho that consent was not a defense in the case involving the juvenile complainant. The information was incorrect; in each of the charged cases, the state had to prove nonconsensual sexual conduct in order to obtain a conviction. See Minn. Stat. § 609.344, subd. 1(o). Based on trial counsel's misinformation, however, Ho believed that consent was not a defense in the case involving the juvenile at the time of his guilty plea.
According to the testimony at the postconviction hearing, Ho discovered after he pleaded guilty, but before sentencing, that consent was, in fact, a possible defense to the case involving the juvenile. Ho contacted his trial attorney, who immediately arranged to meet with Ho and his mother.
During a lengthy meeting on July 11, 2018, Ho's attorney acknowledged the mistake and advised Ho about his options. First, she offered to assist Ho in withdrawing his guilty pleas based on her error. Second, she offered to withdraw as counsel from the case if Ho wished. Third, if Ho did not opt to withdraw the pleas, she offered to pursue a downward departure as originally planned.
Ho's attorney also assessed the likely success of a consent defense at trial. She advised Ho that, in her opinion, the defense would be difficult because four unrelated complainants had alleged factually similar sexual assaults. She told Ho that testimony from all the complainants would likely be used as evidence in each trial, as the prosecutor had specifically advised her of the state's intention to admit this testimony as Spreigl evidence.2
The trial attorney also advised Ho about his potential sentencing exposure without the plea bargain. She observed that to "beat" the state's plea offer, which capped sentencing at 82 months, Ho would have to obtain not-guilty verdicts for three of the four alleged incidents.3 The attorney also discussed mandatory life sentences for repeat sexual offenders under Minnesota Statutes section 609.3455 (2018), advising Ho that he could potentially face such a sentence if he was convicted in each of the cases. Although she believed it was a remote possibility, she believed she was ethically obligated to inform Ho of all potential sentences.
Ho's attorney testified at the postconviction hearing that the possibility of a life sentence was not the "crux" of the conversation at the July 11 meeting. She told Ho on multiple occasions that she believed his exposure, if convicted on the three charged counts, would be about ten years' imprisonment. The trial attorney based this assessment on the Minnesota Sentencing Guidelines grid, which she showed Ho.4
After the July 11 meeting, Ho decided that he did not want to withdraw his guilty pleas. He instructed his attorney to focus on preparing the sentencing departure motion. His attorney noted in an email to Ho's mother following the meeting that Ho's instruction to focus on sentencing was "unequivocal[]."5
At the postconviction hearing, Ho testified that he chose not to withdraw his pleas because he believed that he would face a mandatory life sentence if convicted on the three charges. He explained that his belief was based, in part, on his attorney's discussion of the sentencing statute during the July 11 meeting, where she circled the words "shall" and "for life" in the statutory language. According to Ho, his attorney never told him that, in Minnesota, the state must indict a defendant to seek a life sentence. Ho also testified that he never would have pleaded guilty in the first place had he known that consent was a defense in the case involving the juvenile complainant. Ho's mother offered corroborating testimony, stating that she believed her son pleaded guilty because he did not know consent was a defense and because he felt he had no other option.
Ho called a practicing criminal defense attorney to testify as an expert witness at the postconviction hearing. The attorney testified that, based on his review of the case, Ho's lawyer had been ineffective and her performance had prejudiced Ho.
In a detailed order, the postconviction court denied Ho's request for postconviction relief. First, the postconviction court rejected Ho's ineffective-assistance-of-counsel claim, concluding that Ho had failed to establish that his trial attorney's performance was deficient and that he was prejudiced by the attorney's performance. And second, the postconviction court determined that Ho had failed to establish that a manifest injustice required the withdrawal of his pleas because his guilty pleas were accurate, voluntary, and intelligent.
This appeal follows.
An appellate court reviews the denial of a postconviction petition for an abuse of discretion. Rhodes v. State, 875 N.W.2d 779, 786 (Minn. 2016). The reviewing court considers the postconviction court's "legal conclusions de novo and . . . findings of fact for clear error." Id. Appellate courts "do not reverse the postconviction court unless the postconviction court exercised its discretion in an arbitrary and capricious manner, based its rulings on an erroneous view of the law, or made clearly erroneous factual findings." Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015) (quotation omitted).
Once a defendant enters a guilty plea, there is no absolute right to plea withdrawal. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). If a defendant moves to withdraw a guilty plea before sentencing, the district court "may allow" withdrawal "if it is fair and just to do so." Minn. R. Crim. P. 15.05, subd. 2. But when a defendant moves to withdraw a guilty plea after sentencing, the manifest-injustice standard applies. See id., subd. 1. Under that standard, "the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the...
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