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State v. Counters

Court of Appeals of Minnesota

November 25, 2013

State of Minnesota, Respondent,
v.
Mark Dewayne Counters, Appellant.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27CR1054197.

Lori A. Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Hillary B. Hujanen, Caplan & Tamburino Law Firm, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and Stauber, Judge.

STAUBER, Judge

In this combined direct and postconviction appeal seeking relief from his conviction of first-degree criminal sexual conduct, appellant argues that he was denied effective assistance of counsel due to the cumulative effect of trial counsel's errors and because his trial counsel failed to adequately prepare him to enter a guilty plea in acceptance of the state's plea bargain. Appellant also contends that he was denied the right to counsel when the district court refused to grant a continuance so that appellant could substitute counsel. We affirm.

FACTS

On November 19, 2010, police officers responded to a domestic-assault complaint at a residence in Minneapolis. The caller informed the police that her nephew, later identified as appellant Mark Dewayne Counters, and his girlfriend were fighting. When the police arrived, they observed the girlfriend fleeing the residence, naked from the waist down, and bleeding from her face. Then, officers observed appellant fleeing the residence, naked except for his underwear around his ankles, and bleeding from the groin. Officers located the girlfriend at a neighbor's house, and observed that her left eye was swollen shut, she had lumps on her forehead, and blood was flowing down the left side of her face. She reported that she and appellant were in a relationship, that appellant asked to see her, and that when she arrived at his residence he punched her in the head and face repeatedly, and forced her to perform oral sex on him and to have sexual intercourse with him. The victim said that when she heard appellant's aunt in the residence she bit appellant's penis and ran. Appellant was taken into custody, and admitted without being questioned that he had intercourse with the victim, but maintained that he only struck the victim after she bit his penis.

Appellant was charged with one count of first-degree criminal sexual conduct. He retained a private attorney to represent him—Todd Counters, appellant's mother's cousin. After three pretrial appearances, appellant was scheduled for trial on April 4, 2011. On April 5, 2011, appellant attempted to enter a guilty plea pursuant to the state's offer. But, the district court rejected appellant's plea for lack of an adequate factual basis because appellant would not admit that the sexual contact was nonconsensual. On April 7, 2011, the day of trial, appellant requested a continuance to substitute a different attorney. The district court denied the request, and appellant proceeded to trial represented by Counters.

The jury convicted appellant of first-degree criminal sexual conduct, and appellant was sentenced to 173 months in prison. Appellant filed a direct appeal to this court, but requested a stay pending postconviction proceedings in district court. The stay was granted. On June 5, 2012, the district court entered an order denying in part appellant's postconviction petition and granting an evidentiary hearing on the remaining issues, which included appellants arguments that his trial counsel was ineffective. An evidentiary hearing was held on October 22, 2012 and November 21, 2012. Following the hearing, the district court denied the relief requested in appellant's postconviction petition in its entirety. By order of this court, the stay was dissolved, and this appeal followed.

DECISION

I.

"When a defendant initially files a direct appeal and then moves for a stay to pursue postconviction relief, we review the postconviction court's decisions using the same standard that we apply on direct appeal." State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). Issues of law are reviewed de novo and issues of fact are reviewed for sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). "We review the denial of postconviction relief based on a claim of ineffective assistance of counsel de novo ...


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