State v. Asempa
| Decision Date | 27 June 2022 |
| Docket Number | A21-1569 |
| Parties | State of Minnesota, Respondent, v. Akpene Yaa Asempa, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Ramsey County District Court File No. 62-CR-18-7904
Keith Ellison, Attorney General, Jilian Frueh, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Natalie R. Paule, Paule Law P.L.L.C., St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Segal Chief Judge; and Bratvold, Judge.
Appellant pleaded guilty to one count of theft by swindle. Before sentencing, appellant moved to withdraw her plea. The district court denied appellant's motion and convicted and sentenced her. On appeal, appellant argues that the district court erred by denying her motion to withdraw her guilty plea because she received ineffective assistance of counsel. We determine appellant's claim of ineffective assistance of counsel fails and appellant advanced insufficient reasons for withdrawal under the fair-and-just standard. Thus, we affirm.
On November 1, 2018, the respondent State of Minnesota charged Akpene Yaa Asempa with one count of theft by swindle under Minn. Stat. § 609.52, subd. 2(a)(4) (2014), three counts of theft by false representation under Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (2014), and one count of identity theft under Minn. Stat. § 609.527, subd. 2 (2014).
The complaint alleged Asempa had "defrauded the Medicaid program by submitting claims for personal care assistant (PCA) services that were either falsified or the product of falsified timesheets." According to the complaint, Asempa was the owner, biller, and qualified professional for Lifespan Home Care Services, and Asempa "regularly submitted claims" to the Minnesota Department of Human Services (DHS) "for PCA services under the name of one PCA, when the timesheets listed another PCA as the treating provider." The complaint also alleged Asempa fraudulently received reimbursement from DHS for "non-covered PCA services." The complaint finally alleged DHS paid Asempa $50,001.23 as a result of Asempa's fraudulent submissions.[1] Over a year after the state filed charges, and on the first day scheduled for Asempa's jury trial, Asempa's attorney informed the district court that the parties had reached a plea agreement. Asempa indicated she wanted to plead guilty to one count of theft by swindle in exchange for the state's agreement to dismiss the remaining charges and to recommend a stay of imposition with supervision by probation and Asempa's payment of restitution. In response to questioning by the district court, Asempa stated she understood the plea agreement, wanted to plead guilty to theft by swindle, and understood she was agreeing to pay restitution.
After Asempa was sworn in and entered a guilty plea, she and her attorney discussed her written plea petition, which was filed with the court. Asempa agreed she had reviewed the written plea petition "line by line" with her attorney and had signed it. Asempa agreed that she had "had an adequate opportunity to talk to [her attorney] about [the petition]," that she understood the petition, that she had asked her attorney about the petition, and that she had discussed the plea agreement with her attorney. She also agreed she understood that she was giving up her trial rights, including the right to a trial by jury or court, the right to remain silent, and the right to be presumed innocent. Asempa testified she has a bachelor-of-science degree in nursing and was enrolled in a master's and doctoral program.
In response to questions from her attorney, Asempa testified to the facts underlying her plea. Asempa agreed that, between September 2014 and August 2016, she had "submit[ted] claims" to DHS that "didn't accurately reflect the identities of . . . personal care assistants who had provided services to certain clients" and that she did that "so [she] and [her] company could get paid money for those PCA services." When Asempa's attorney asked whether she had "g[otten] paid for claims that [she] submitted with incorrect names on them, over $5,000 of those claims," Asempa stated, "Not to my intent, yeah." Asempa also answered, "Not really," when asked whether she knew "that some of those [PCA] claims had different names on them than the time sheets." Asempa also stated she was "not sure" when asked whether she would "agree . . . that time sheets that supported [her] claims that [she] submitted to DHS had different names on them than the claims she submitted."
The district court asked Asempa why she was pleading guilty. Asempa replied, "Well, it's the best offer that they've offered me." The district court then asked whether Asempa was guilty, and Asempa replied, "I guess, yes." The district court inquired what Asempa had done to be guilty of theft by swindle, and Asempa responded that she had "billed for the clients that [she had] been servicing with [her] PCA employees" and that she had "not knowingly" billed for any work that had not been done. The district court again asked Asempa why she was pleading guilty, and she replied, "Because that's what [was being] offered to me."
The district court informed the parties it would not accept the plea. Asempa immediately responded, The district court stated, "[T]hat's not the way things work."
With the district court's permission, Asempa's attorney continued to inquire of Asempa. Asempa agreed that she had "submit[ted] billings that were incorrect," that she "knew they were incorrect when [she] submitted them," that she "intended then to be paid on those billings," and that she "was paid" on those billings. Asempa acknowledged that she had, among other things, "submit[ted] billings that contained the names of PCAs who were not yet certified as PCAs" despite this being "an illegal claim" because "[a] PCA not qualified and not certified is not able to be paid." Asempa agreed she had "put a different name" on the uncertified PCAs' time sheets and "changed the name to someone that had been enrolled" as a PCA before submitting the claim to DHS. When Asempa responded, "Yes to everything," the district court reminded her she should respond truthfully so the court could determine whether she was guilty. The district court then asked whether Asempa had received "more than $5,000" that she was "not entitled to" between September 2014 and August 2016. Asempa agreed she had.
The district court found the factual basis adequate for the guilty plea, deferred acceptance of the plea until sentencing, and ordered a presentence investigation.
Before the sentencing hearing, Asempa moved to withdraw her guilty plea. Asempa's motion argued for "the Court's discretionary allowance of withdrawal before sentence if it is fair and just to do so." Asempa submitted two affidavits-her own and one from the attorney who had represented her at the plea hearing. Asempa's attorney's affidavit averred that Asempa had considered the plea agreement "for approximately one hour," the attorney "believed that a factual basis existed for the entry of the plea . . . and [the attorney] advised [Asempa] to accept the plea offer and submit the plea."
Asempa's affidavit attested her attorney "did not explain each of the counts that [she] was charged with" and "failed to investigate or obtain . . . favorable evidence." Asempa also averred that she agreed to plead guilty because she "was scared [she] would be taken to jail if [she] did not agree to the plea," and she "entered the plea without sufficient time to understand and consider it." The state opposed Asempa's motion, arguing that granting withdrawal would "significant[ly] prejudice" the state because they had released thirteen witnesses.
After a hearing was held in January 2021, the district court denied the motion to withdraw. In a written order, the district court found that Asempa "pleaded guilty, signed a petition to enter a guilty plea, and was informed of her rights on the record when she pleaded guilty." The district court also determined that "[i]t would not be fair and just to allow [Asempa] to withdraw her plea," reasoning that, while "the prejudice to the State would not be overwhelming," granting the motion "would undermine the plea bargaining process." The district court stated that Asempa "has buyer's remorse about her plea, which is common and understandable, but is not a sufficient reason to allow her to withdraw her guilty plea."
The district court later accepted Asempa's plea and stayed imposition of sentence, placing Asempa on probation for three years.
Asempa appeals.
Asempa argues her conviction should be reversed and she should be allowed to withdraw her guilty plea for two reasons: (1) she received ineffective assistance of counsel; and (2) it would have been "fair and just" to allow Asempa to withdraw her plea before sentencing because she received ineffective assistance of counsel.
"A defendant has no absolute right to withdraw a guilty plea after entering it." State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). Rather, they may do so if one of two standards is met. First, a defendant must be allowed to withdraw her guilty plea at any time if doing so "is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Second, the district court may, in its discretion, allow a defendant to withdraw a plea at any time before sentencing "if it is fair and just to do so." Minn. R. Crim. P. 15.05, subd. 2.
Ineffective assistance of counsel can render a guilty plea constitutionally invalid, causing a manifest injustice. Sames v....
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