author: HECHT, Justice.

text:
    STATE of Iowa, Appellee, v. Brian Edward REYNOLDS, Appellant.
    No. 06-0344.
    Supreme Court of Iowa.
    April 4, 2008.

      Mark C. Smith, State Appellate Defender, Greta A. Truman, Civil Commitment Unit, and Jason B. Shaw, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Gary Allison, County Attorney, and Kerrie L. Snyder, Assistant County Attorney, for appellee.
   HECHT, Justice.

Brian Reynolds seeks further review of an Iowa Court of Appeals decision affirming his convictions for one count of theft in the first degree and six counts of forgery. The court of appeals concluded the district court properly admitted certain hearsay evidence under the business records hearsay exception, Iowa Rule of Evidence 5.803(6). The decision of the court of appeals also rejected Reynolds’s claim that defense counsel was ineffective in failing to raise Confrontation Clause objections to some of the hearsay evidence. We vacate the decision of the court of appeals, reverse Reynolds’s convictions, and remand for a new trial.

I. Factual and Procedural Background.

At approximately 9:00 a.m. on December 17, 2004, Brian Reynolds entered a U.S. Bank branch in Muscatine and attempted to cash six United States postal money orders in the amount of $950 each. Paige Bales, a sales and service manager at U.S. Bank, recognized Reynolds as a customer of the bank, knew he was employed as a mechanic, and was instantly suspicious of the proposed transaction. Although the money orders appeared valid, Bales told Reynolds she would have to put “a hold” on them because there was a possibility they might be fraudulent, and she wanted to protect him and the bank by making sure they had value. Reynolds reluctantly agreed, and decided to deposit the proceeds of the money orders in his bank account. Approximately one hour later, after finding another bank that would cash the money orders immediately, Reynolds called Bales and asked her to reverse the transaction and return the money orders to him. Reynolds soon returned to the bank and retrieved the money orders.

Approximately twenty minutes after retrieving the money orders from U.S. Bank, Reynolds entered Central State Bank in Muscatine and presented teller Julie Kis-sell with two United States postal money orders, each in the amount of $950. At Reynolds’s request, Kissell cashed them, applied $400 of the proceeds to a vehicle loan in the name of C. Geertz, and handed to Reynolds the remaining $1500 in cash. Later the same day, Reynolds returned to the same bank with four more United States postal money orders, each in the amount of $950. Teller Brannan Murphy completed a transaction for Reynolds in which Reynolds paid $100 from the proceeds of each money order on a loan under the names of Reynolds and Geertz, and received the remainder in cash.

On December 30, 2004, Reynolds returned to Central State Bank with four more United States postal money orders, each in the amount of $950. Per Reynolds’s request, the bank applied part of the proceeds to retire a loan balance, and gave the remainder to Reynolds in cash. On January 31, 2005, Reynolds returned to Central State Bank, this time bearing two Traveler’s Express international money orders, each with a face value of $3000. Reynolds again approached teller Brannan Murphy, who cashed them.

On February 1, 2005, Stella Best, a proof operator and research officer at Central State Bank, received e-mail communications known as “error messages” from the Federal Reserve indicating the six money orders cashed on December 17, 2004, were counterfeit. On February 8, 2005, Best received similar communications from the Federal Reserve regarding the four money orders presented by Reynolds to the bank on December 30, 2004.

After Central State Bank received notification of the problems with Reynolds’s postal money order transactions, Charity Harmon, the head teller at the bank, made inquiry as to the legitimacy of the two Traveler’s Express international money orders. She called a Traveler’s Express “800” telephone number, provided the relevant money order identification numbers, and heard a “computerized recording” reporting the money orders had no value.

The State charged Reynolds with one count of first-degree theft and six counts of forgery. Reynolds waived his right to a jury trial and a bench trial was held. At trial, the State used Best’s testimony in an attempt to lay a foundation for admission of ten exhibits under the business records exception to the hearsay rule, Iowa Rule of Evidence 5.803(6). Each of these exhibits included a copy of a money order involved in one of the transactions, various documents created by Central State Bank such as a transaction ticket, and a copy of the error message from the Federal Reserve advising the bank of the counterfeit status of the subject money order. Best testified the bank routinely receives error messages via e-mail from the Federal Reserve in the course of the bank’s business. She also testified the e-mail communications included in the proffered exhibits came from the Federal Reserve, and verified the dates the notices were received by the bank. Best testified that the reason each of the e-mail communications was sent by the Federal Reserve to the bank was to notify the bank of a “counterfeit postal money order.” Defense counsel did not object to this testimony by Best, but later objected on hearsay grounds to the admission of copies of the e-mail communications received by the bank from the Federal Reserve. The district court admitted the ten exhibits over this objection. No one from Central State Bank or the Federal Reserve gave testimony explaining how the Federal Reserve error reports are generated and sent.

Defense counsel also lodged, and the district court overruled, a hearsay objection to Harmon’s testimony relating the information she learned from the Traveler’s Express “800” number. Harmon testified that the Traveler’s Express “computerized recording” informed her that the international money orders cashed by Reynolds on January 31, 2005, were without value. No one from Central State Bank or Traveler’s Express gave testimony explaining how the data reported by the “computerized recording” is generated.

The district court found Reynolds guilty on all seven counts and committed him to the custody of the department of corrections for a period not to exceed ten years on count one, and for a period not to exceed five years on counts two through seven, to be served concurrently. Reynolds’s appeal was transferred to the court of appeals. That court affirmed the district court’s ruling admitting the Federal Reserve error reports and Harmon’s testimony under the business records exception, Iowa Rule of Evidence 5.803(6). The court of appeals also denied Reynolds’s ineffective-assistance-of-counsel claims and affirmed his convictions.

II. Scope of Review.

We review a defendant’s hearsay claims for correction of errors at law. State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006).

III. Discussion.

A. Business Records Exception to the Hearsay Rule. A party seeking to admit a record containing hearsay into evidence under Iowa Rule of Evidence 5.803(6) must establish the following foundational elements:

1)That it is a business record;
2) That it was made at or near the time of an act;
3) That it was made by, or from information transmitted by, a person with knowledge;
4) That it was kept in the course of a regularly conducted business activity;
5) That it was the regular practice of that business activity to make such a business record.

Beachel v. Long, 420 N.W.2d 482, 484 (Iowa Ct.App.1988) (citing 5A Iowa Rules of Civil Procedure Annotated 581 (1984)). Reynolds contends the testimony provided by the State’s witnesses as to the Federal Reserve error reports and computerized recording from Traveler’s Express was insufficient as to the third foundational requirement — that the record was made by, or from information transmitted by, a person with knowledge. We agree.

1. Federal Reserve error reports. The State attempted to lay a business records exception foundation for the ten exhibits containing the Federal Reserve error reports through the testimony of Stella Best, a proof operator and research officer at Central State Bank. Each of the exhibits contained six separate documents. Best testified the first four documents in each exhibit were generated by Central State Bank. The last two documents in each exhibit, however, were an e-mail and error report created by the Federal Reserve and sent to Central State Bank, declaring that each of the ten money orders cashed by Reynolds was counterfeit. Defense counsel objected to the admission of the last two pages in each exhibit on hearsay grounds. The prosecutor responded:

... I believe that Ms. Best has established the first parts of the transactional paperwork as generated by Central State Bank. Those are documents she commonly deals with in the proof department as they have to go through that department for verification. In regard to the actual money order, those are presented to the bank.
She testified they are presented to Central State Bank. Copies are maintained within their system within the normal course of business. The records of the copy — the subsequent copy of the money order, the e-mail notification and the error reports are received by them in the normal course of business from the Federal Reserve to notify them if there was an error.
She testified that there was an error and what the error consisted of. She also testified that they commonly rely on that in the normal course of their business. Although the record is generated by the Federal Reserve, it is received by Central State Bank in the normal course of their business. It’s something on which they commonly rely and once received, they maintain it within the normal course of their business, so for that reason the State feels that the hearsay objection should be overruled.

While the prosecutor arguably addressed four of the five rule 5.803(6) foundation elements in her response to Reynolds’s hearsay objection, she failed to address the requirement that the relevant records' — • the e-mails and error messages created by the Federal Reserve — were made by a person with knowledge, or from information transmitted by a person with knowledge.

Best’s testimony established Central State Bank “received” the documents from the Federal Reserve and “maintained” them in the normal course of Central State Bank’s business. Rule 5.803(6), however, requires that the record be made by, or from information transmitted by, a person with knowledge. The hearsay objection raises an issue of “double hearsay,” as the Federal Reserve generated the error report, not Central State Bank, and Best did not testify that she had any knowledge as to how the error reports themselves were made. See Union Story Trust & Sav. Bank v. Sayer, 332 N.W.2d 316, 320-21 (Iowa 1983) (holding a party failed to lay a proper business records exception foundation for hearsay evidence under Iowa Code section 622.28 where party failed to demonstrate that the record sought to be introduced was the business record of that party); State v. Lain, 246 N.W.2d 238, 242 (Iowa 1976) (holding a telephone subscriber was unable to lay a business records exception foundation for telephone bill because the subscriber had no knowledge of the method or circumstances of the creation of the record); Polson v. Meredith Publ’g Co., 213 N.W.2d 520, 525 (Iowa 1973) (stating that admitting third-party hearsay statements contained in a business record without a separate hearsay exception foundation for the third-party hearsay “would constitute a complete departure from the most elementary rules of evidence rather than obedience to the statutory admonition that such rules should be liberally applied”); In re Herron, 212 N.W.2d 474, 476 (Iowa 1973) (noting the statutory counterpart to rule 5.803(6), Iowa Code section 622.28, “does not eliminate proof of the reliability” of hearsay records contained within records generated by the business). These cases establish that a party must establish the applicability of an exception to the hearsay rule authorizing the admission of third-party hearsay statements contained in a business record. The fact that third-party hearsay is contained in an otherwise-admissible business record does not cleanse it of the “untrustworthy” hearsay taint. Sayer, 332 N.W.2d at 320-21. While it is essential that the record be kept in the course of regularly conducted business activity, that fact alone is not dispositive; the record must also satisfy the other rule 5.803(6) conditions to establish admissibility of the hearsay statements in the record.

Here, there is no testimony from anyone with knowledge of how the Federal Reserve error reports were generated. From the testimony of Stella Best, it appears Central State Bank employees were unable to, or at least did not, independently determine that the money orders were counterfeit; the bank relied exclusively on the Federal Reserve to make that determination. There is no evidence in the record either as to how the Federal Reserve determined the money orders were counterfeit, or how the error reports were made. Although the specific person who created the record in the course of business need not testify to lay the foundation for the business records exception, see State v. Propps, 376 N.W.2d 619, 621 (Iowa 1985), the party offering the evidence must demonstrate the evidence was made in the course of the Federal Reserve’s business, at or reasonably near the time, using standard procedures that reasonably indicate the trustworthiness of the information.

We acknowledge the possibility the Federal Reserve records were created through a fully automated and reliable process involving no human declarant. If this is the case, the “statements” contained in the records are arguably not hearsay at all, as they would not have been made by a human declarant. See State v. Armstead, 432 So.2d 837, 839 n. 2 (La.1983) (discussing the distinction between computer-stored (hearsay) and computer-generated (non-hearsay) data); State v. Carter, 762 So.2d 662 (La.Ct.App.2000); State v. Dunn, 7 S.W.3d 427, 430-32 (Mo.Ct.App. 1999) (holding telephone records were not hearsay where testimony of telephone company security manager established the records were created by a fully electronic process); State v. Hall, 976 S.W.2d 121, 147 (Tenn.1998) (noting computer-generated records are not hearsay, and their admissibility is measured by the reliability of the system). But we simply cannot know this on the record of this case, as there is no evidence in the record from any person with knowledge as to how the Federal Reserve error reports were created or as to the reliability of the error reporting system in general. As the Tennessee Supreme Court held in Hall, the foundational testimony for non-hearsay evidence need only be provided by a person with “special knowledge about the operation of the computer system.” Hall, 976 S.W.2d at 147; see also Dunn, 7 S.W.3d at 432 (holding testimony of a Southwestern Bell employee was sufficient to establish the reliability of records from AT & T). Best’s testimony was insufficient to satisfy the State’s burden to establish that the statements in the e-mails and error reports from the Federal Reserve were made either “by a person with knowledge,” or by a reliable, non-hearsay, computer-generated source. The district court therefore erred in admitting the Federal Reserve error messages.

Under Iowa Rule of Evidence 5.103(a), we presume prejudice arises from nonconstitutional error and reverse unless the record affirmatively establishes otherwise. State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004). Here, although defense counsel objected to admission of the inadmissible hearsay contained in the exhibits, he did not object to Best’s earlier testimony declaring the postal money orders were counterfeit. Because Best’s testimony was already in the record when the exhibits were offered and received in evidence, the error messages themselves were cumulative on the issue of the counterfeit status of the money orders. State v. McGuire, 572 N.W.2d 545, 547-48 (Iowa 1997) (noting the court will not find prejudice in the admission of hearsay evidence if “substantially the same evidence has come into the record without objection”). We therefore conclude the district court’s erroneous admission of the Federal Reserve error reports did not result in reversible error.

2. Harmon’s testimony based on the Traveler’s Express recording. Reynolds contends Harmon’s testimony regarding the statements she heard when she called the Traveler’s Express “800” number was improperly admitted over his hearsay objection, and requests a reversal of his conviction on count seven, one of the forgery counts. The State asserts the district court properly admitted the testimony under the business records exception. For several reasons, we conclude the district court erred in admitting this evidence. First, Harmon’s testimony is insufficient to establish whether the information provided to the bank was computer-stored hearsay or computer-generated non-hearsay. Harmon testified as to how she accessed by telephone the Traveler’s Express information, but there is no evidence in the record as to how Traveler’s Express acquired and produced the data it provided to her. The record does not disclose whether Traveler’s Express generated the information communicated on the recording through a passive, mechanical process, or whether it was generated through human perception and judgment. Cf. Dunn, 7 S.W.3d at 430-32 (reciting testimony of telephone company employee detailing how all long distance carriers receive and maintain billing records from other carriers and noting the process is entirely electronic with no direct human input).

Second, if we assume the statement Harmon heard when she called the Traveler’s Express “800” number was hearsay, Harmon’s testimony recounting it in court was not a business record. To fall within the rule 5.803(6) exception to the hearsay rule, the evidence must be “a memorandum, report, record, or data compilation, in any form ... made at or near the time....” While the record may be “in any form,” oral statements related to the court by someone engaged in business do not fall within the purview of the exception. Simply put, Harmon’s testimony based on her memory of what she heard when she called Traveler’s Express is not a “business record.” Moreover, Harmon’s in-court testimony also clearly failed to satisfy the exception’s “made at or near the time” requirement. Iowa R. Evid. 5.803(6). Because it was not a record made at or near the time, Harmon’s testimony does not bear the indicia of reliability upon which the business records hearsay exception is grounded. Propps, 376 N.W.2d at 620-21. Accordingly, the trial court erred in admitting Harmon’s hearsay testimony as to what she heard when she called the Traveler’s Express “800” number.

Our prejudice analysis regarding the admission of Harmon’s testimony as to the information supplied telephonically by Traveler’s Express differs from our prejudice analysis with respect to the admission of the Federal Reserve error reports. There is no other evidence in the record tending to prove the Traveler’s Express money orders were counterfeit, other than Harmon’s hearsay account of what she heard when she called Traveler’s Express. With no admissible evidence that the Traveler’s Express money orders were counterfeit, the State could not prove Reynolds uttered an international money order he knew to be forged. See Iowa Code § 715A.2(c). On this record, the presumption of prejudice with respect to these money orders has not been rebutted, and we therefore reverse the defendant’s conviction on count 7, and grant him a new trial on that charge.

B. Ineffective Assistance of Counsel. Reynolds raises two grounds of ineffective assistance of trial counsel: (1) failure to object to Best’s hearsay testimony regarding the contents of the Federal Reserve error reports; and (2) failure to object to the testimony of both Best and Harmon based on the Sixth Amendment right of confrontation. A defendant claiming ineffective assistance of counsel has the burden to show “(1) the attorney failed to perform an essential duty and (2) prejudice resulted.” State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006) (quoting Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)). To establish prejudice, the defendant must show “there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (citing State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).

1. Failure to raise a hearsay objection. We usually reserve ineffective-assistance-of-counsel claims for postconviction proceedings, but we will resolve such a claim on direct appeal “when the record adequately presents the issues.” State v. Thornton, 498 N.W.2d 670, 675 (Iowa 1993). The record must be sufficient for the court to determine both ineffectiveness and the resulting prejudice. We conclude the record here is adequate to determine whether the result of the trial would have been different if defense counsel had objected to the hearsay evidence. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

To establish prejudice, a defendant must show the probability of a different result is “sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “In determining whether this standard has been met, we must consider the totality of the evidence, what factual findings would have been affected by counsel’s errors, and whether the effect was pervasive or isolated and trivial.” State v. Graves, 668 N.W.2d 860, 882-83 (Iowa 2003) (citing Strickland, 466 U.S. at 695-96,104 S.Ct. at 2069, 80 L.Ed.2d at 698). Unlike the situation in which error has been preserved and the court presumes prejudice, see Sullivan, 679 N.W.2d at 30, in this case it is the defendant’s burden to demonstrate a reasonable probability of a different result. Shanahan, 712 N.W.2d at 136.

We conclude Reynolds did suffer prejudice as a consequence of his trial counsel’s failure to object to Best’s hearsay testimony. As we have noted, the Federal Reserve error messages — the only other evidence offered by the State to establish the counterfeit status of the postal money orders — were inadmissible. This left only Best’s testimony supporting a finding the postal money orders were counterfeit. If Reynolds’s trial counsel had raised the meritorious hearsay objection to Best’s testimony, there would have been insufficient evidence in the record for the court to find Reynolds guilty of the six forgery charges and the related theft charge. Accordingly, we conclude Reynolds has established a reasonable probability that the result of the trial would have been different but for his trial counsel’s breach of duty. See State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999) (noting Strickland prejudice is established if there is a reasonable probability that but for counsel’s failure, the result of the trial would have been different). We therefore reverse Reynolds’s conviction on all seven counts and remand for a new trial.

2. . Failure to raise Confrontation Clause objections. As. we have concluded Reynolds is entitled to a new trial on all charges, we need not address his claim trial counsel was ineffective for failing to object to the hearsay testimony on Confrontation Clause grounds.

IV. Conclusion.

We reverse all of the convictions on the ground Reynolds received ineffective assistance of counsel, and remand for a new trial.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED, AND CASE REMANDED.

      . As a consequence of the ''hold,” Reynolds would not receive cash for the money orders until the transaction cleared.

      . The court of appeals declined to address the issues raised in Reynolds’s pro se supplemental brief because it was not filed within fifteen days after appellate counsel filed the proof brief. See Iowa R.App. P. 6.13(2). For the same reason, we do not áddress Reynolds’s pro se arguments.

      . However, because we conclude below that Reynolds received ineffective assistance of counsel, his convictions must nonetheless be reversed.

      . Reynolds was convicted of theft in the first degree (count one) and six counts of forgery (counts two through seven). The theft count was based upon the total value of the allegedly forged postal and Traveler's Express money orders. Because the forgery convictions must be reversed as a consequence of the ineffectiveness of Reynolds's trial counsel, the theft charge based upon the same inadmissible evidence must also be reversed.


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Chief Justice.

license: Public Domain

text:
    Jairam GANPAT, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1733.
    Supreme Court of Minnesota.
    April 10, 2008.

      Jairam Ganpat, Bayport, pro se.
    Lori Swanson, Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney, Cheri A. Townsend, Assistant County Attorney, Hastings, for respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Jairam Ganpat appeals from a summary denial of his postconviction petition arguing that (1) his right to due process was violated because his Minn. R.Crim. P. 20 mental examination was conducted in jail; (2) his right to equal protection was violated because no psychiatric experts testified at his trial; and (3) his convictions violate the Double Jeopardy Clause of the United States Constitution. We affirm.

On March 31, 2005, Ganpat was indicted for first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2006), second-degree intentional murder in violation of Minn.Stat. § 609.19, subd 1(1) (2006), and second-degree unintentional felony murder in violation of Minn.Stat. § 609.19, subd. 2(1) (2006), for the death of his girlfriend, Moonku Persaud. Before trial, the district court ordered that Gan-pat undergo a psychiatric and psychological evaluation to determine whether he was competent to stand trial, pursuant to Rule 20.01 of the Minnesota Rules of Criminal Procedure. Ganpat was examined by a court-appointed psychologist, a psychologist selected by Ganpat’s counsel, and a forensic psychiatrist on behalf of the State. All three mental health experts testified at a competency hearing, and the district court found Ganpat competent to stand trial. At trial Ganpat did not assert a defense of not guilty by reason of mental deficiency or illness.

After a 4-day trial, a Dakota County jury found Ganpat guilty of all charges. The district court sentenced Ganpat to life in prison for his first-degree murder conviction. On direct appeal, in which he was represented by counsel, Ganpat argued “that the district court erred (1) by concluding that he was competent to stand trial and (2) denying his motion to suppress statements he made to police.” State v. Ganpat, 732 N.W.2d 232, 235 (Minn.2007). We affirmed. Id.

Ganpat filed a pro se petition for postconviction relief, which the district court denied without a hearing. Ganpat appeals the postconviction court’s denial of relief, arguing that (1) his right to due process was violated because the Rule 20 mental examinations were conducted in the Dakota County jail rather than at a “mental hospital”; (2) his right to equal protection was violated because he has a mental disorder and the three psychiatric experts who testified at Ganpat’s competency hearing did not testify at trial; and (3) his convictions violate the Double Jeopardy Clause of the United States Constitution.

On review of a postconviction court’s denial of relief, we “extend a broad review of both questions of law and fact.” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). We review the postconviction court’s factual findings to determine if there is sufficient evidence in the record to sustain them, and we review legal claims de novo. Id. A postconviction court is not required to hold an evidentiary hearing “unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990).

Where a petitioner has taken a direct appeal, a postconviction court will not consider in a subsequent petition for postconviction relief any claims that were known or should have been known at the time of direct appeal. Mckenzie v. State, 707 N.W.2d 643, 644 (Minn.2005); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Claims that were not raised on direct appeal may be considered on postconviction review only if they are “so novel that the legal basis was not available on direct appeal” or if “fairness requires and the petitioner did not deliberately and inexcusably fail to raise the issue on appeal.” Mckenzie, 707 N.W.2d at 644 (internal quotation marks omitted).

Here, the postconviction court concluded that all of Ganpat’s claims were barred by Knaffla because they were claims that Ganpat knew or should have known at the time of his direct appeal. We agree. The Rule 20 examination was conducted well before trial, which means Ganpat knew or should have known of his first claim before his direct appeal. Similarly, Ganpat’s equal protection claim based on the lack of expert testimony at trial is a claim Ganpat knew or should have known when his direct appeal was taken. Finally, Ganpat’s double jeopardy claim should have been raised on direct appeal and is, therefore, barred by Knaffla.

After examining the substance of Ganpat’s claims we conclude that they do not fall under either exception to Knaffla, and furthermore, they do not have merit. As to Ganpat’s first claim, Rule 20 grants district courts the authority to confine a defendant for the purposes of a mental examination but does not require that the examination be conducted in a “mental hospital” as Ganpat claims. Minn. R.Crim. P. 20.01, subd. 2(3). We conclude Rule 20 was not violated here. Additionally, Gan-pat’s right to equal protection was not violated because “expert testimony is generally not admissible * * * to inform the fact-finder about the general effects of a mental illness.” State v. Bird, 734 N.W.2d 664, 673 (Minn.2007). Finally, we have interpreted the Double Jeopardy Clause of the United States Constitution to protect criminal defendants both from prosecution for the same offense after either acquittal or conviction and from “multiple punishments for the same offense.” Hankerson v. State, 723 N.W.2d 232, 236-37 (Minn.2006) (internal quotation marks omitted). Here, no such violation occurred because Ganpat was subject to only one prosecution and incurred only one sentence: a mandatory sentence of life in prison for first-degree murder.

Affirmed.

      . To the extent that Ganpat disagreed with his appellate counsel's decision as to what issues should have been raised on direct appeal, Ganpat's recourse was to file a pro se supplemental brief. E.g., Black v. State, 560 N.W.2d 83, 86 (Minn.1997).

      . The Double Jeopardy Clause provides that "[n]o person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.


author: ANDERSON, G. BARRY, Justice. PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Prentis Cordell JACKSON, Appellant.
    No. A07-395.
    Supreme Court of Minnesota.
    April 10, 2008.

      Lori Swanson, Attorney General, St. Paul, Michael 0. Freeman, Hennepin County Attorney, David Craig Brown, Assistant County Attorney, Minneapolis, for respondent.
    John Stuart, State Public Defender, Sara Lynne Martin, Assistant Public Defender, St. Paul, for appellant.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Prentis Cordell Jackson was convicted of first-degree murder for the killing of Michael Anthony Bluntson, Jr., in Minneapolis. On direct appeal, appellant seeks the reversal of his conviction on the basis that the district court declined to give the jury an accomplice corroboration instruction. We affirm appellant’s conviction.

Michael Anthony Bluntson, Jr., was killed near the intersection of 25th Avenue North and Sixth Street North in Minneapolis on February 24, 2006. A medical examiner testified that Bluntson died from a gunshot to the head fired at “intermediate range.” Although the precise caliber of the bullet retrieved from Bluntson’s body was not determinable, the bullet’s weight was similar to that of a .45-caliber bullet. The police did not recover the murder weapon in the course of their investigation.

Deshawn Jenkins and Alfred Lamar were members of a gang known as the EMB (“Emerson Money Boys” or “Emerson Murder Boys”). Lemuel Radcliffe and appellant’s cousin Bernard Williams joined with the EMB as part of a consolidated gang known as the LMB (“Lyndale Mob Boys”). Jenkins, Lamar, and Williams testified at trial, but Radcliffe did not. Lamar testified that appellant was a member of the LMB. Some of the gang members sold marijuana and crack cocaine outside Wafana’s, a store located at the intersection of 24th Avenue North and Lyndale Avenue North in Minneapolis. Bluntson was believed by some individuals to be a member of another gang known as the 2’s & 3’s. Williams testified that appellant had previously accused Bluntson of stealing sacks of marijuana that appellant had hidden inside Wafana’s, but Leshaun Taylor testified that he and Bluntson were best friends and that he was unaware of any dispute between Bluntson and appellant.

Jenkins, Lamar, and Williams testified as to the events surrounding Bluntson’s murder. On the afternoon of February 24, 2006, Williams was shot in the left arm while standing outside Wafana’s by a person whom he believed to be a member of the 2’s & 3’s and whom he had seen with Bluntson on prior occasions. Williams testified that he removed his gray sweatshirt as he fled the scene. After the shooting, Williams saw appellant at the home of Shalonda Young, which is located in the 2200 block of Sixth Street North in Minneapolis. Appellant allegedly observed that Williams had been shot but did not ask who had shot him. Lamar testified that he saw appellant on Broadway, a North Minneapolis street, after the shooting. According to Lamar, appellant told Lamar that he had heard that the 2’s & 3’s shot Williams and declared that if he caught one of them he would “f* * * them up.”

Jenkins, Lamar, Radcliffe, Williams, and Bluntson were at Wafana’s later in the day. Photographs from the Wafana’s surveillance camera that were introduced at trial established that Jenkins, Lamar, and Williams left the store at 6:27 p.m. and that Bluntson left the store at 6:28 p.m. According to Williams, Jenkins and Radcliffe got into an argument with Bluntson after they left Wafana’s. Williams testified that Jenkins ordered Bluntson to leave and that Radcliffe told Bluntson, “[Y]our man shot my man.” Jenkins, in contrast, denied that any such argument occurred. A police officer testified that a Wafana’s employee told him that there had been an argument in the store shortly before Bluntson was shot.

Radcliffe drove Jenkins, Lamar, and Williams in Radcliffe’s Suburban to Young’s house, where they remained for a couple of minutes before appellant joined them in the vehicle and Radcliffe drove away with his passengers. Near the intersection of 25th Avenue North and Sixth Street North, Radcliffe drove by Bluntson, who was walking on the sidewalk. Williams testified that Radcliffe said, “[Tjhere he go right there.” Lamar testified that someone in the Suburban suggested that appellant “box” Bluntson and that appellant stated that he was going to “crush him.” Radcliffe stopped the Suburban, and appellant left the vehicle. According to Williams, when appellant got out of the Suburban he said, “I got something for this nigger.”

Lamar testified that appellant approached Bluntson on the sidewalk and that the two of them assumed boxing stances. According to Lamar, appellant pulled a gun from his waist and pulled the trigger, but the gun did not fire. Appellant then pulled the trigger a second time, the gun fired, and Bluntson stumbled, grasping his face. Lamar related that someone in the Suburban said, “Shit, he shot him. He just f* * *ing shot him.” According to Lamar, the Suburban’s other occupants neither planned to shoot Blunt-son nor indicated that they knew appellant was going to shoot him, and they were “surprised,” “shook up,” and “panicking” after the shooting. Although Jenkins and Williams did not see appellant shoot Blunt-son, they both testified to hearing one gunshot after appellant got out of the Suburban.

Rosalba Trejo, who resides in the 2400 block of Sixth Street North, testified that she heard gunshots and watched the victim run, fall, and then get up, run, and fall again. Radcliffe drove away, and appellant ran through some yards, met up with the Suburban, and reentered the vehicle. Williams testified that someone asked appellant what he did, to which appellant responded, “I shot him in his f* * *ing face.” The group returned to Young’s house after the shooting, and Lamar observed appellant empty the shells out of his gun and place them in his pocket. Jenkins testified that everyone at Young’s house was talking about the shooting and that appellant explained that “he lift[ed] the gun up,” “it went click,” and then “it kind of went boom.” According to Jenkins, although appellant was wearing a black hooded sweatshirt when appellant got into the Suburban at Young’s house, he saw appellant wearing Williams’s gray sweatshirt at Young’s house after the shooting. At trial, Jenkins’s and Lamar’s descriptions of the gun they saw in appellant’s possession after the shooting and Williams’s description of a gun he had previously seen in appellant’s possession were substantially similar.

Frederick Anthony testified that after the shooting he was at Young’s house, where he overheard appellant confess that he shot Bluntson. But Anthony repeatedly contradicted himself in his testimony regarding whether it was appellant or someone else who confessed and whether he was under police pressure to testify against appellant. Anthony also admitted that he was drunk when he heard the confession.

At approximately 6:42 p.m. on February 24, Minneapolis police officers received a dispatch call reporting the shooting. The police found Bluntson’s body on 25th Avenue North, slightly east of Sixth Street North, and a trail of blood revealed that Bluntson had run a short distance after being shot. John Sparkman told Sergeant Christopher Thomsen at the scene that Bluntson called Sparkman at approximately 6:30 p.m. to tell him “that he was having some trouble with some EMB’s” at Wafa-na’s. Sparkman said he advised Bluntson to try to reach Sparkman’s house safely. Thomsen looked at Sparkman’s cell phone and confirmed that the call was received at 6:33 p.m. When asked at trial if a person who left Wafana’s at 6:27 p.m. could drive to the 2200 block of Sixth Street North and then back to the intersection of 25th Avenue North and Sixth Street North by 6:42 p.m., Sergeant Michael Keefe answered that a person “could walk it in that time.”

Sergeant Thomsen testified that while the police were investigating the crime scene, a woman called and disclosed that she had been at Young’s house, where she heard people talking about the shooting and observed young men with guns. When the police searched Radcliffe’s Suburban, they found a bag that contained a gray sweatshirt with nine unfired .45-eali-ber bullets in a pocket and blood around the collar. A forensic scientist testified that the bullet retrieved from Bluntson’s body could have been a .45-caliber bullet, and Sergeant Thomsen testified that the bullet “was in the category of a .45 or larger.” The DNA profile of the blood on the sweatshirt matched Williams’s DNA profile, and Williams identified the sweatshirt as the one he was wearing when he was shot. Williams testified that there were no bullets in his sweatshirt when he removed it as he fled Wafana’s and that he did not know why his sweatshirt was in the Suburban. There is no evidence that Williams possessed the sweatshirt after he took it off earlier in the day.

Appellant was indicted for first-degree premeditated murder under Minn.Stat. § 609.185(a)(1) (2006) and second-degree unpremeditated murder under Minn.Stat. § 609.19, subd. 1(1) (2006). At trial, appellant’s counsel argued “that the facts are pretty close to being right, [but] they just got the wrong guy.” Appellant testified that he was not at Young’s house on February 24, that he had nothing to do with the killing, and that he did not learn of Bluntson’s death until almost a week after it occurred. Appellant also testified that he had argued with Williams a couple of weeks before the shooting.

Appellant’s counsel requested that the district court give the jury an accomplice corroboration instruction. The court declined appellant’s request on the grounds that “none of these parties would have been chargeable with the crime” and that appellant claimed “he wasn’t even present at the scene.” The jury found appellant guilty of first-degree murder on November 8, 2006, and he was sentenced to life imprisonment without parole.

Appellant argues that the district court erred in declining to give the jury an accomplice corroboration instruction with respect to the testimony of DeShawn Jenkins, Alfred Lamar, and Bernard Williams. Under Minn.Stat. § 634.04 (2006), a defendant may not be convicted based “upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.” Because an accomplice’s credibility is inherently suspect, “[a]n accomplice instruction ‘must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.’ ” State v. Lee, 683 N.W.2d 309, 316 (Minn.2004) (quoting State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989)). “When it is unclear whether a witness is an accomplice or not, it generally becomes a question of fact for the jury to decide.” State v. Reed, 737 N.W.2d 572, 582 (Minn.2007). But when “the facts of the case are undisputed and there is only one inference to be drawn as to whether or not the witness is an accomplice, then it is a question for the court to decide.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn.1995). “The decision to give a requested jury instruction lies in the discretion of the trial court and will not be reversed absent an abuse of that discretion.” State v. Palubicki, 700 N.W.2d 476, 487 (Minn.2005). We review a district court’s refusal to give a requested accomplice corroboration instruction using a harmless error analysis. Shoop, 441 N.W.2d at 479-80.

Our “general test for determining ‘whether a witness is an accomplice for purposes of section 634.04 is whether he could have been indicted and convicted for the crime with which the accused is charged.’ ” Lee, 683 N.W.2d at 314 (quoting State v. Henderson, 620 N.W.2d 688, 701 (Minn.2001)). “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Minn.Stat. § 609.05, subd. 1 (2006). For purposes of imposing accomplice liability, “we distinguish between playing ‘a knowing role in the crime’ and having ‘[a] mere presence at the scene, inaction, knowledge and passive acquiescence.’ ” Palubicki, 700 N.W.2d at 487 (alteration in original) (quoting State v. Gates, 615 N.W.2d 331, 337 (Minn.2000)).

We agree with respondents contention that Jenkins and Lamar could not have been indicted and convicted for Bluntsons murder because their mere presence with appellant does not render them his accomplices. Although Jenkins and Lamar were with appellant at the time of the shooting, there is no evidence that they intentionally aided, advised, hired, counseled, or conspired with appellant or otherwise procured appellant to murder Bluntson. See Minn.Stat. § 609.05, subd. 1. The evidence suggests that Jenkins and Lamar may have known that appellant intended to fight Bluntson, but there is no evidence that they knew appellant intended to kill Bluntson.

The facts of this case are similar to the facts of State v. Flournoy, in which we rejected the defendants claim that the district court erred in declining to give the jury an accomplice corroboration instruction. 535 N.W.2d at 359-60. In Flour-noy, the witness accompanied the defendant and several other men into an alley. Id. at 358. The witness testified that he noticed the defendant and another man whispering to one another and that as they began to walk into the alley the man who had been whispering to the defendant warned the witness, “[W]hen I run, you better run too.” Id. The defendant shot the victim, an alleged “snitch,” in the back of the head. Id. The witness then accompanied the defendant to the victims home, where the defendant lied to the victims wife about what had occurred. Id. We rejected the defendants argument that the witness was an accomplice, stating that “[njothing in the record before us suggests that [the witness] played a role in planning the murder or * * * even had knowledge of the plan prior to its execution.” Id. at 360. Here, as with the witness in Flour-noy, the mere presence of Jenkins and Lamar with appellant before, during, and after the shooting does not render them his accomplices.

Appellant’s reliance on State v. Gates, 615 N.W.2d 331 (Minn.2000), and State v. Ostrem, 535 N.W.2d 916 (Minn.1995), is misplaced. In Gates, 615 N.W.2d at 338, we concluded that there was sufficient evidence to support a guilty verdict for aiding and abetting first-degree murder where “[t]he only rational inference from the evidence [was] that [the defendant] intentionally transported [the shooter] * * * so that [the shooter] could shoot [the victim].” Likewise, in Ostrem, 535 N.W.2d at 924-26, 924 n. 10, we concluded that there was sufficient evidence to support a guilty verdict for aiding and abetting second-degree burglary and theft where there was no “rational explanation for [the defendant’s] presence other than participation in the crime.” In this case, on the other hand, there is no evidence supporting the indictment and conviction of Jenkins and Lamar because they were mere passengers in the vehicle.

We need not decide whether Williams was an accomplice because even if he were an accomplice, the district court’s failure to give the jury an accomplice corroboration instruction was harmless. When determining whether a district court’s error in declining to give an accomplice corroboration instruction is harmless, we consider whether the testimony of the accomplice “was corroborated by significant evidence,” “whether the accomplice testified in exchange for leniency,” whether the prosecution emphasized the accomplice’s testimony in closing argument, and whether the court gave the jury general witness credibility instructions. State v. Jackson, 726 N.W.2d 454, 461 (Minn.2007); see also State v. Gail, 713 N.W.2d 851, 864-65 (Minn.2006); Lee, 683 N.W.2d at 316-17. The strong corroboration of Jenkins’s and Lamar’s non-accomplice testimony, the absence of evidence that Williams testified at trial in exchange for leniency, and the general instructions the district court gave the jury on witness credibility convince us that any error in the district court’s refusal to give the jury an accomplice corroboration instruction was harmless.

Because neither Jenkins nor Lamar could have been indicted and convicted for Bluntson’s murder and any error in failing to give the jury an accomplice corroboration instruction as to Williams was harmless, we affirm appellant’s conviction.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent. An obvious problem presented by this case is the fact that the testimony of Jenkins, Lamar, and Williams is as untrustworthy, and unreliable as that of an obvious accomplice. Jenkins, Lamar, and Williams all had a motive to testify against Jackson in the hope of avoiding criminal liability for any role they may have played in Bluntson’s death. Thus, I believe that the purpose underlying our requirement that a conviction not rest on the uncorroborated testimony of an accomplice should also apply with equal force to situations in which the only direct evidence of the defendant’s actual involvement in the charged crime comes from witnesses who were present when the crime took place, had a motive to commit the crime, and whose testimony is not only the only testimony incriminating the defendant but is also the only evidence exculpating the witness.

“Accomplice testimony is inherently untrustworthy because the accomplice may testify against the defendant in the hopes of obtaining clemency for himself.” State v. Reed, 737 N.W.2d 572, 582 (Minn.2007). Therefore, a conviction cannot rest on the uncorroborated testimony of an accomplice. Minn.Stat. § 634.04 (2006); State v. Clements, 82 Minn. 434, 443, 85 N.W. 229, 232 (1901). As a result, “ ‘trial courts have a duty to instruct juries on accomplice testimony in any criminal ease in which it is reasonable to consider any witness against the defendant to be an accomplice.’ ” Reed 737 N.W.2d at 582 (quoting State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002)). Generally, a witness will be considered an accomplice if the witness “could have been indicted and convicted for the crime with which the accused is charged.” State v. Lee, 683 N.W.2d 309, 314 (Minn.2004). The court concludes that, because Jenkins and Lamar were merely present at the time Bluntson was shot, they could not have been indicted and convicted of the shooting and therefore were not accomplices. As a result, the court concludes that the trial court did not err when it declined to give the accomplice instruction. The court also concludes that any error in the trial court’s failure to give an accomplice instruction as to Williams was harmless because the record contains sufficient evidence from Lamar and Jenkins’s testimony to corroborate Williams’s testimony.

While the court’s conclusion that Jenkins and Lamar were not accomplices because there is no evidence that they intentionally aided, advised, hired, counseled, conspired with or otherwise procured Jackson to murder Bluntson is arguably technically correct, our analysis should not end there. The fact that the State may have lacked sufficient evidence to charge and convict Williams, Jenkins, and Lamar of aiding and abetting Jackson, or of committing the murder independent of Jackson’s involvement, does not overcome the inherent untrustworthiness of statements made and testimony given by these three obvious suspects. While it is true that there was no evidence offered at trial that Jenkins and Lamar were anything other than merely present when Bluntson was killed, it is also true that the only evidence establishing that they were merely present came from Jenkins, Lamar, and Williams. Absent their testimony, there are no facts in the record detailing Jackson’s involvement in the shooting. Their testimony, like that of an accomplice, is inherently untrustworthy because they had a strong incentive to shift the blame away from themselves and on Jackson. By shifting the blame to Jackson, they took the spotlight off of their involvement. Because their testimony is inherently untrustworthy, it should receive the same scrutiny that the legislature has required for accomplice testimony. Therefore, we should hold that Jackson’s conviction cannot rest on their testimony absent sufficient corroboration of that testimony.

Here, the record suggests that Jenkins, Lamar, and Williams may well have been highly motivated to engage in shifting the blame to Jackson. On the afternoon of February 24, 2006, Williams was shot while standing outside a North Minneapolis convenience store. Williams survived the shooting. Later that afternoon, one or more members of a group of people, including Williams, Jenkins, Lamar, and Radcliffe, were involved in an argument with Bluntson at the same store where Williams had been shot. The group left the store at 6:27 p.m. in Radcliffe’s vehicle and drove to a house where Jackson joined them. At some point the group, now including Jackson, drove away from the house in Radcliffe’s vehicle and encountered Bluntson, at which point, according to the testimony of Jenkins, Lamar, and Williams, Jackson got out of the vehicle and without provocation shot Bluntson. Further, according to Jenkins, Lamar, and Williams, they had no reason to know that Jackson was going to shoot Bluntson. Jenkins’s, Lamar’s, and Williams’s version of events is entirely self-serving. Their self-serving testimony is completely uncorroborated except by one another. Based on the uncorroborated testimony of three obvious suspects, no reasonable jury could have found that the State had proven beyond a reasonable doubt that Jackson shot Bluntson. Therefore, I would reverse Jackson’s conviction.

      . Williams indicated that Radcliffe drove away when appellant left the vehicle, but Lamar indicated that Radcliffe did not drive away until after the shot was fired. Furthermore, Lamar claimed that he left the Suburban as appellant reentered the vehicle after the shooting.

      . A stronger argument can be made that Radcliffe was appellants accomplice, as Radcliffe picked up appellant at Youngs house, drove him to the site of the shooting, pointed out Bluntson walking on the sidewalk, stopped the Suburban, and picked up appellant after the shooting. But because Radcliffe did not testify at trial, these facts are irrelevant to determining whether the district court erred in declining to give the jury an accomplice corroboration instruction.

      . Respondent argues that the witnesses were not accomplices because they were alternative perpetrators under appellant's version of the facts. Based on the facts of this case, we need not, and do not, reach that issue.

      . The legislature may wish to consider whether the policy considerations underlying Minn. Stat. § 634.04 apply equally to suspects as well as accomplices.


author: ROSS, Judge.

text:
    Jennifer Diane ANDERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-91.
    Court of Appeals of Minnesota.
    April 8, 2008.

      Stephen P. Doyle, Kevin S. Sandstrom, Robin, Thompson & Doyle, P.A., Wayzata, MN, for appellant.
    Lori Swanson, Attorney ■ General, St. Paul, MN; and Kathleen A. Heaney, Sher-burne County Attorney, Leah Emmans, Assistant County Attorney, Elk River, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge; ROSS, Judge; and JOHNSON, Judge.
   OPINION

ROSS, Judge.

Jennifer Anderson appeals her conviction of third-degree criminal sexual conduct. After the state charged Anderson for having sex with a child whom she counseled in a juvenile rehabilitation program, she pleaded guilty to one count of criminal sexual conduct in exchange for dismissal of other counts. Anderson argues that her guilty plea cannot form the basis of her conviction because the district court had impermissibly interjected itself into the plea negotiations. She also argues that she was denied her constitutional right to effective assistance of counsel because of her attorney’s advice and actions related to her guilty plea. And she argues that the district court erroneously denied her motion to withdraw her plea after sentencing because it was not voluntarily and intelligently made. We hold that the district court did not impermissi-bly interject itself into plea negotiations. But because Anderson’s trial counsel’s advice regarding the timing of her motion to withdraw the plea fell below an objective standard of reasonableness and prejudiced Anderson, we reverse and remand.

FACTS

Jennifer Anderson and M.C. met at the Bar None juvenile rehabilitation facility in 2003, where M.C. was a resident and Anderson was the program counselor. Anderson and her husband became M.C.’s foster parents several days after M.C. left the program.

In early 2004, the Elk River Police Department received a report of sexual contact between Anderson and 15-year-old M.C. After a police investigation, the state charged Anderson with three counts of first-degree criminal sexual conduct, with three counts of fourth-degree criminal sexual conduct, and with contributing to the need for protection, services, or delinquency of M.C. In May 2006, the state amended the complaint to charge two counts of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct.

The evidence accumulated during the police investigation supported the state’s theory of Anderson’s sexual relationship with M.C. The evidence indicated that shortly after M.C. moved into the Andersons’ Elk River home in 2003, Anderson began having sexual intercourse and engaging in oral sex with him. M.C. estimated that Anderson had sexual intercourse with him 15 to 20 times and oral sex even more. Anderson’s husband confronted Anderson and M.C. with his suspicion about the alleged sexual relationship, and M.C. then moved from the Andersons’ home. Although Anderson told police that she had no contact with M.C. after he moved out, police discovered that she made more than 60 telephone calls to M.C. and, according to M.C., often drove to St. Paul to meet and have sex with him.

Anderson pleaded not guilty and the charges were set for jury trial. Two days after the voir dire began, Anderson pleaded guilty to one count of third-degree criminal sexual conduct, and the state dismissed the remaining charges. The district court sentenced Anderson to 41 months in prison. Anderson then moved to withdraw her guilty plea, but the court denied the motion. Anderson now appeals from her conviction, raising various challenges to her guilty plea.

ISSUES

I. Did the district court improperly inject itself into plea negotiations?

II. Was Anderson denied effective assistance of counsel?

ANALYSIS

I

Anderson argues that her guilty plea is invalid because the district court impermissibly injected itself into the plea negotiations that precipitated the plea. The role of the district court during plea negotiations is to determine whether a proffered plea bargain is appropriate and to ensure that the defendant has not been improperly induced to plead guilty. State v. Johnson, 279 Minn. 209, 215-216, 156 N.W.2d 218, 223 (1968). It has discretion regarding whether to accept a plea agreement, but it should not participate in the plea bargaining itself. Id. It is therefore reversible error for the district court to accept a guilty plea that results from the court’s impermissible participation in plea negotiations. State v. Anyanwu, 681 N.W.2d 411, 414-15 (Minn.App.2004); State v. Vahabi 529 N.W.2d 359, 360-61 (Minn.App.1995). Impermissible participation includes such things as the court’s direct involvement in the negotiations, its imposition of a plea agreement, or its promise to impose a particular sentence. Vahabi, 529 N.W.2d at 361.

Anderson contends that during an in-chambers conference between the district court judge and trial counsel, the judge committed the court to impose a sentence of only four months of work release without imprisonment in exchange for Anderson’s guilty plea. This promise induced her to plead guilty, she argues, rendering her plea involuntary. But there is no record of this or any other sentencing promise. Anderson argues that we should credit her assertion that the court made the promise despite the lack of any record of it because neither the prosecutor nor the district court judge expressly denied it. The absence of the judge’s or counsel’s express denial, however, does not constitute agreement with Anderson’s allegation. More important, by denying Anderson’s postsentencing plea-withdrawal motion, which was also based on the ground that the court had promised Anderson a sentence of only four months in the work-release program, the same district court judge necessarily rejected Anderson’s underlying factual assertion. The implicit finding that the district court made no sentencing promise is challenged on appeal only by Anderson’s assertion. This provides an insufficient basis for this court to disregard the district court’s implicit determination that it made no such sentencing promise. Cf. Metro. Fed. Sav. & Loan Ass’n v. Adams, 356 N.W.2d 415, 421 (Minn.App.1984) (declining to assume facts not found by the district court), review denied (Minn. Jan. 2,1984).

Anderson argues that controlling case-law should prevent us from being influenced by the lack of any record that the district court judge promised her the four-month nonimprisonment sentence, citing Vahabi, 529 N.W.2d 359. But in Vahabi the district court’s involvement in the plea negotiations could be inferred from the record. Although the record in that case did not disclose all that had been said before guilty pleas were entered, it reflected that the prosecutor objected at least twice to the trial court’s offer to defer sentencing and to treat felony theft charges as petty misdemeanors. On those facts, this court determined that the record established that the district court promised a particular sentence in advance of the plea. Vahabi, 529 N.W.2d at 361.

But we distinguish this case from Vaha-bi because the record here does not demonstrate even indirectly that the district court improperly induced a plea agreement or promised the sentence that Anderson claims. For example, it includes no objection by the state to the court’s alleged promise of a four-month sentence. And the terms of the written plea petition state only that Anderson would plead guilty to one count of third-degree criminal sexual conduct in exchange for the state’s dismissal of the other three counts. There is also no evidence of other agreed-upon terms or promises regarding the plea agreement. No one during the plea hearing mentioned the possibility of a four-month sentence of any kind, let alone a sentence that would avoid imprisonment. Anderson testified that no one had made any promises to induce her plea, and this concession may be accepted to negate claims of unfulfilled promises. See State v. Trott, 338 N.W.2d 248, 252 (Minn.1983) (affirming finding of no promise when defendant’s claim that he was promised probation by defense counsel was negated by the plea petition, by his statements made when he entered his plea, and by his counsel’s testimony). Anderson’s plea petition reflected her understanding that she could be incarcerated up to 15 years, not that she faced only four months’ restriction outside of prison. Anderson points to nothing in the record to prove or imply that the district court improperly induced the plea by a promise or was otherwise impermissi-bly involved in negotiations.

On this record, we hold that Anderson’s guilty plea is not invalid by virtue of the district court’s alleged improper involvement in the plea negotiations. We turn to Anderson’s constitutional argument.

II

Anderson contends alternatively that she was denied effective assistance of counsel regarding her guilty plea. That the criminally accused “shall enjoy the right ... to have the Assistance of Counsel for his defense” is a federal and state constitutional right. U.S. Const. amend VI; Minn. Const. art. I, § 6. And it is well settled that having appointed counsel present at a proceeding is not sufficient to satisfy the constitutional right to counsel. Rather, “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).

To establish a claim that she received constitutionally ineffective assistance of counsel, Anderson must meet both prongs of the Strickland test: she must show that her attorney’s representation fell below an objective standard of reasonableness and that but for the substandard representation the result would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hathaway v. State, 741 N.W.2d 875, 879 (Minn.2007). Anderson has the burden of proof and must rebut the strong presumption that her trial attorney’s performance fell within a wide range of reasonable assistance. Gail v. State, 732 N.W.2d 243, 248 (Minn.2007). This court may address the two prongs of the test in any order and resolve the claim on one prong without analyzing the other. Schleicher v. State, 718 N.W.2d 440, 447 (Minn.2006).

Anderson cites three incidents of alleged ineffective representation. She claims that she was denied effective assistance of counsel because her trial attorney (1) induced her guilty plea by presenting as a promise the district court’s alleged intention to sentence her only to four months of work release; (2) advised her to insincerely admit her guilt to secure the court’s acceptance of her guilty plea but then failed to advise her that she must continue to show remorse and falsely admit guilt after her guilty plea during the pre-sen-tencing investigation; and (3) advised her to delay moving to withdraw her guilty plea until after sentencing despite Anderson’s stated desire to move to withdraw before sentencing. We address each allegation of ineffective representation in turn.

We are not persuaded by Anderson’s contention that her trial counsel’s representation fell below an objective standard of reasonableness by his alleged failure to inform her that the court might not impose the four-month work-release sentence that she claims her counsel promised her. Anderson acknowledged during the plea hearing that no promises had been made to her regarding the plea and that she understood that the court might sentence her to 48 months’ imprisonment under the plea agreement. Anderson cannot show that she was prejudiced by her trial counsel’s alleged failure to explain the uncertain nature of statements that she might receive only a four-month sentence without imprisonment. See Trott, 338 N.W.2d at 252 (holding that the defendant’s claim that he pleaded guilty because of an unfulfilled promise by his attorney was negated when he signed the guilty plea petition and stated that no promises induced his plea); see also Coolen v. State, 288 Minn. 44, 50-51, 179 N.W.2d 81, 86 (1970); State v. Hamilton, 280 Minn. 21, 23-24, 157 N.W.2d 528, 529 (1968). Anderson’s claim of ineffective assistance of counsel on this theory therefore fails.

Anderson asserts that she is innocent of the charges and that she pleaded guilty only after her attorney advised her to falsely admit guilt to secure a preferred sentence. She argues that her trial counsel’s failure to inform her that she must continue falsely to admit guilt and to show remorse during the pre-sentence investigation constitutes ineffective assistance of counsel. She contends essentially that the district court imposed the lengthy sentence to punish her failure to accept responsibility for the offense, and she faults her attorney for failing to advise her to continue lying. Cf. In re Disciplinary Action Against Knutson, 711 N.W.2d 807, 810 (Minn.2006) (noting that advising a client to lie under oath is a serious offense).

To the extent Anderson bases her appeal on the notion that it is ineffective assistance for her lawyer to advise her to lie to the court by admitting guilt to a crime her lawyer does not believe she committed, the contention fails for at least three independent reasons. First, the district court’s instruction to Anderson and its administration of the oath to tell the truth at her plea hearing superseded any defective advice by her trial attorney that she lie about her guilt. Anderson’s sworn duty to tell the truth, as directed by the oath, is too fundamental and obvious an obligation to be dismissed by contrary advice to violate it, even if suggested or encouraged by her attorney. “Our legal system depends on the truthfulness of the testimony of witnesses and false testimony strikes at the very heart of the administration of justice.” In re Disciplinary Action Against Ward, 563 N.W.2d 70, 72 (Minn. 1997); Minn. R. Evid. 603 (requiring that every witness called to testify must declare by oath that he will testify truthfully); cf. United States v. Dunnigan, 507 U.S. 87, 97, 113 S.Ct. 1111, 1118, 122 L.Ed.2d 445 (1993) (“All testimony, from third-party witnesses and the accused, has greater value because of the witness’ oath and the obligations or penalties attendant to it.”). The alleged advice to lie under oath should be rejected by even the least enlightened defendant in the face of her fundamental duty to tell the truth under oath; the alleged advice to he therefore cannot be deemed to have prejudiced Anderson under Strickland.

Second, Anderson also suffered no prejudice from the advice because she received nothing less than she sought as the result of her admission of guilt. It is undisputed that Anderson admitted guilt because she intended the admission to facilitate the outcome she preferred, which was the district court’s acceptance of her plea. The district court convicted Anderson because she admitted guilt, not because the admission was false. Truthful or not, the confession of guilt cannot be said to have prejudiced Anderson, because the confession served her intended purpose.

Third, despite Anderson’s claim that her attorney directed her to falsely assert her guilt, the district court made no finding that Anderson’s attorney actually instructed her to falsely assert guilt. It has been said that “[d]efense attorneys realize early in their careers that the vast majority of their clients are factually guilty.” See F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub.L. 189, 211 (2002). Defense attorneys occasionally represent clients who might ardently, but unconvincingly, falsely assert their innocence during privileged consultation with defense counsel. Whether the defendant privately admits guilt or unconvincingly asserts innocence, her counsel’s duty to assess the relative strengths and weakness of the prosecution’s case and the likelihood of success at trial remains the same when advising whether to enter a guilty plea. In fact, these circumstances have advanced the development of the Alford plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Because the district court made no finding that Anderson’s attorney knowingly counseled her to admit guilt falsely under the plea agreement, Anderson’s argument fails even though she may have maintained her innocence in conversations with her attorney.

Anderson’s related theory that her attorney ineffectively represented her by not advising her to continue to lie is a novel one. In our review of the caselaw, we conclude that it would be a significant departure from traditional Sixth Amendment jurisprudence to hold that Anderson’s trial counsel violated her constitutional rights by failing to exact from her a more thorough ruse. Anderson cites no case in which an attorney’s failure to advise a client to lie has been deemed to violate the constitutional right to counsel. There seems to be no supporting authority, and this case will not fill that void. Counsel’s failure to advise Anderson to continue to take responsibility for the offense to which she confessed her guilt does not fall below the objective standard of reasonable representation.

Anderson argues next that her trial attorney’s representation was ineffective because he advised her to wait to move to withdraw her guilty plea until after sentencing, rather than before. Given the record as presented, this argument persuades us to remand the case for further proceedings.

When a convicted person claims that her counsel’s performance errors led her to plead guilty, she establishes that she has received constitutionally ineffective assistance of counsel by showing that counsel’s performance fell below an objective standard of reasonableness and that “there is a reasonable probability that, but for counsel’s errors, [s]he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In this related setting, Anderson asserts that her counsel’s ineffective representation restrained her from challenging her guilty plea before sentencing. We therefore must decide whether her counsel’s performance fell below an objective standard of reasonableness and whether there is a reasonable probability that, but for his errors, Anderson would have brought a pre-sentencing motion to withdraw her guilty plea.

We conclude that counsel’s advice responding to Anderson’s request to move to withdraw her guilty plea fell below an objective standard of reasonableness. A defendant has the right to decide whether to plead guilty, and her attorney plays a central role in informing that decision. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948) (“Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.”). A defendant who receives advice that is so substandard that it prevents her from making a knowing and understanding decision regarding her plea receives constitutionally deficient advice under the first prong of Strickland. Hill, 474 U.S. at 59, 106 S.Ct. at 370. We consider the challenged advice in this context.

The specific nature of the advice is not in dispute. Anderson provided four affidavits, constituting the only evidence introduced regarding her trial counsel’s discussion with her concerning the timing of her motion to withdraw her guilty plea. The affidavit testimony of four witnesses— Anderson, her father, her mother, and her husband — -is substantially identical. Neither Anderson nor the state provided any conflicting or elaborative testimony, such as might have been available from Anderson’s trial attorney. Anderson’s affidavit described the discussion with her attorney as follows:

On August 11, 2006, I arrived at the court for sentencing. Shortly before my sentencing commenced, I learned from my attorney that the judge intended to sentence me to 41 months in prison based upon the results of Mr. Weber’s assessment, which apparently stated that I was immoral, dishonest, and did not feel any remorse. When I asked why this happened, my attorney said it was because I refused to take responsibility for my actions.
I told my attorney that I wanted to withdraw my plea because the only reason I pleaded guilty was to receive a sentence of four months on work release. My attorney said that I could bring a motion to withdraw my plea before sentencing, but he said that the judge would in all probability deny the motion and then I could be sentenced to an even longer sentence. He stated that my better option would be to express remorse and take full responsibility during sentencing in the hopes of currying favor with the judge to reduce the sentence to less than 41 months. He said that, after sentencing, I should then bring a motion to withdraw my guilty plea. My father and husband were present during this conversation with my attorney.

This unchallenged testimony establishes without dispute that Anderson’s trial counsel advised her not to pursue her stated preferred course to withdraw her guilty plea before sentencing without informing her of the increased risk of failure associated with that strategy. Anderson eventually moved to withdraw her guilty plea, but, following her attorney’s advice, she did so only after sentencing. The district court denied the motion. So the significance of her counsel’s failure to advise Anderson about the risks associated with delaying her motion depends on whether her knowledge of the risks would have likely led her to bring her withdrawal motion before sentencing. This in turn depends on whether the delay, if properly understood, would be perceived as having a potentially significant impact on the district court’s decision to deny the motion. We conclude that it did.

Anderson correctly argues that the standard of proof to withdraw a guilty plea is lower for motions to withdraw that are brought before sentencing, when she sought to bring her motion, than for motions brought after sentencing, when her attorney advised her to bring her motion. Compare Minn. R.Crim. P. 15.05, subd. 2 (providing that a district court may allow withdrawal of a guilty plea before sentencing when the defendant shows that it is fair and just to allow withdrawal) with id., subd. 1 (requiring the court to allow a defendant to withdraw a plea of guilty after sentencing when the defendant shows that withdrawal is necessary to correct a manifest injustice). Although the line between these two standards is not always precisely applied in the caselaw, the standards are distinct. The different language establishes that they are substantially dissimilar. See In re Kleven, 736 N.W.2d 707, 709 (Minn.App.2007) (“A statute should be interpreted, whenever possible, to give effect to all of its provisions; no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” (quotation omitted)). And the supreme court has noted the distinction, stating that the fair-and-just standard “is less demanding than the manifest injustice standard.” State v. Theis, 742 N.W.2d 643, 646 (Minn.2007); see also State v. Kaiser, 469 N.W.2d 316, 319 (Minn.1991) (explaining that the right to withdraw a plea for a manifest injustice applies before or after sentencing but that a district court may allow withdrawal before sentencing on the lesser showing of a fair and just reason to withdraw). Federal cases discussing the nearly identical provisions of the Federal Rules of Criminal Procedure have made the same observation. See United States v. Seharf, 568 F.2d 106, 107-08 n. 2 (8th Cir.1978) (noting that the fair-and-just standard is lesser than the manifest-injustice standard); see also United States v. Farley, 72 F.3d 158, 162 (D.C.Cir.1995) (noting that after sentencing a defendant must meet a more stringent standard than the more lenient fair-and-just standard).

The range of bases upon which a motion to withdraw a plea before sentencing may be granted is broad, not limited by the rule. Although a defendant does not have an absolute right to withdraw her guilty plea before sentencing, the district court has substantial discretion to decide whether an asserted reason would make withdrawal fair and just. Kim v. State, 434 N.W.2d 263, 266 (Minn.1989). The supreme court has cautioned that an appellate court should reverse the district court’s decision regarding whether a defendant has presented a fair-and-just reason for withdrawal “only in the rare case.” Id. The rule requires the district court to duly consider the stated reasons offered in support of the motion to withdraw against any prejudice the withdrawal might cause the prosecution because of actions taken in reliance on the guilty plea. Minn. R.Crim. P. 15.05, subd. 2. Otherwise, Minnesota cases have declared only one restriction on the district court’s discretion to grant a pre-sentence motion to withdraw, which is that the court may not grant the motion merely “for any reason or without good reason,” or else the plea process “would simply be a means of continuing the trial to some indefinite date ... when the defendant might see fit to come in and make a motion to withdraw his plea.” Kim, 434 N.W.2d at 266.

By contrast, manifest injustice occurs when, for example, a guilty plea is not accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997). So if a defendant was coerced into pleading guilty, “a withdrawal is necessary to correct a manifest injustice and [the] defendant ha[s] a right to withdraw his plea.” Kaiser, 469 N.W.2d at 319; see also In re Welfare of J.J.R., 648 N.W.2d 739, 743 (Minn.App.2002) (concluding that the defendant who did not admit a sufficient factual basis for his guilty plea was entitled to withdraw his plea to avoid a manifest injustice); State v. Foncesa, 505 N.W.2d 370, 373 (Minn.App.1993) (holding that defendant who did not make a knowing and intelligent waiver of right to counsel during her guilty plea was therefore entitled to withdraw her plea after sentencing). The court has also found manifest injustice when the defendant agreed to a specific sentence but did not receive notice until after sentencing that a conditional release term would be imposed, James v. State, 699 N.W.2d 723, 729-30 (Minn.2005), when the defendant and the state were mutually mistaken as to the defendant’s criminal history score, State v. DeZeler, 427 N.W.2d 231, 234-35 (Minn. 1988), and when the district court declines to give a plea agreement effect, State v. Loyd, 291 Minn. 528, 531, 190 N.W.2d 123, 125 (1971).

Despite the substantially different standards, on the record before us it is clear that Anderson’s counsel advised Anderson to follow a course that made it more difficult for her to withdraw her guilty plea while failing to warn her of that difficulty. Because Anderson followed that course and waited until after sentencing to move to withdraw her guilty plea, the district court applied the stricter, manifest-injustice standard, and Anderson’s motion failed. Although it is conceivable that the district court might have also denied a pre-sentence motion to withdraw even under the more lenient, fair-and-just standard had Anderson brought that motion as she desired, we are in no position to know the arguments that Anderson would have raised or how the district court would have exercised its discretion to decide a pre-sentence motion. It is clear from the record and argument, however, that Anderson likely would have brought the motion before sentencing had she been advised of the increased risk incurred. by waiting. We therefore hold that Anderson’s defense counsel’s advice to her to defer moving to withdraw her guilty plea until after sentencing, without advising her how the differing standards of proof might affect the decision, prejudiced Anderson. Counsel’s conduct as presented on this record prevented Anderson from making an informed decision whether to bring her motion when it had a greater likelihood of success. We offer no opinion about how the district court might exercise its discretion in response to a pre-sentencing motion to withdraw the guilty plea. But we remand for further proceedings to allow Anderson to move the district court to withdraw her guilty plea for consideration under the more lenient, pre-sentencing, fair-and-just standard.

DECISION

We hold that the district court did not impermissibly interject itself into plea negotiations. Anderson fails to establish that she received ineffective assistance of counsel when her trial attorney allegedly promised that she would receive a four-month sentence on work release or allegedly counseled her to lie about her guilt. We hold that Anderson received ineffective assistance of counsel, however, when her attorney advised her to wait until after sentencing to move to withdraw her guilty plea without warning her of the increased risk of failure associated with that strategy. We do not reach Anderson’s challenge to the district court’s denial of her post-sentencing motion to withdraw her guilty plea.

Reversed and remanded.