This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-1781
State of Minnesota, Respondent,
vs.
Abdusalam Omar Hussein, Appellant.
Filed October 13, 2025 Affirmed Bratvold, Judge
Olmsted County District Court File No. 55-CR-19-7701
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael T. Walters, Olmsted County Attorney, James E. Haase, Senior Assistant County Attorney, Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from the final judgments of conviction for unlawful possession of a
firearm and two counts of second-degree assault, appellant raises two issues. First, he
argues that the district court plainly erred by allowing the state, shortly before trial, to amend its complaint to add a charge of unlawful firearm possession. Appellant contends
that his conviction on that count must be vacated and, for related reasons, he must be
resentenced on the second-degree assault convictions. Second, appellant argues that he
received ineffective assistance of counsel before and during his stipulated-evidence trial.
Because the district court did not plainly err by allowing the state to amend the complaint,
we uphold the firearm-possession conviction. But because record is insufficient for this
court to determine appellant’s ineffective-assistance claim, we decline to address the
second issue, which appellant may pursue in a petition for postconviction relief should he
elect to file one. Thus, we affirm.
FACTS
On November 4, 2019, respondent State of Minnesota charged appellant Abdusalam
Omar Hussein with second-degree assault with a dangerous weapon under Minn. Stat.
§ 609.222, subd. 1 (2018) (count one). The state amended the complaint on November 5,
2019, adding a second charge for second-degree assault with a dangerous weapon (count
two).
Based on stipulated evidence, the district court found the following: Early in the
morning on November 3, 2019, Hussein fled after shooting a man five times at an
apartment building in southeast Rochester. After shooting the man at the apartment
building, Hussein drove to a convenience store, pointed a gun at another man in the parking
lot, threatened to shoot, and drove away. Hussein made a 911 call and stated that he shot
someone in southeast Rochester and “was not going to surrender.” Law enforcement
2 located Hussein in his vehicle, he drove away, and during the pursuit, Hussein’s vehicle
rolled over, leading to his arrest.
The state’s case against Hussein was delayed, in part because of the COVID-19
pandemic. During district court proceedings, Hussein completed more than one
examination to determine whether he was competent to proceed with his defense. 1 After
an evaluation and a hearing, the district court found Hussein competent to proceed in
January 2020.
In February 2021, Hussein filed a notice of intent to raise a mental-illness defense. 2
The district court ordered another competency examination and evaluation. After a hearing,
the district court found Hussein was not competent to proceed in January 2022 and
suspended court proceedings. At the district court’s order, subsequent competency
evaluations and review hearings were completed. In a March 2023 report, an evaluator
determined that, while Hussein was still experiencing “ongoing symptoms of mental
1 Minnesota Rule of Criminal Procedure 20.01 governs competency proceedings. “If the prosecutor, defense counsel, or the court, at any time before or after conviction, doubts the defendant’s competency to proceed, the prosecutor or defense counsel must make a competency motion . . . or the court on its initiative must raise the issue.” Minn. R. Crim. P. 20.01, subd. 3(a). If the district court determines that there is a “reasonable basis to doubt the defendant’s competency” and that the state has probable cause for the charges, then the district court must suspend the proceedings. Id., subd. 3(b). After receiving a competency-evaluation report, a district court holds a competency hearing in which the party asserting that the defendant is competent has the burden to show competency by a preponderance of the evidence. Id., subd. 5. 2 Minnesota Rule of Criminal Procedure 20.02 governs the procedure to assert a defense of not guilty by reason of mental illness or cognitive impairment. If a defendant pleads both not guilty to the charges and not guilty based on a mental-illness defense, the district court “must separate the two defenses,” hear and determine the not-guilty defense first, and then determine the mental-illness defense second. Minn. R. Crim. P. 20.02, subd. 7(a).
3 illness,” he was competent “to fully participate in his defense.” The district court proceeded
with scheduling Hussein’s case.
In December 2023, Hussein renewed his notice that he would be raising “the defense
of not guilty by reason of mental deficiency.” In March 2024, Hussein demanded a speedy
trial, and the district court scheduled a jury trial for April 15, 2024.
On April 12, 2024, three days before trial, the state amended the complaint a second
time, adding a charge for unlawful firearm possession under Minn. Stat. § 624.713,
subd. 1(2) (2018) (count three). The second amended complaint alleged the same offense
facts as the first amended complaint but added the allegation that Hussein was convicted
of a fifth-degree controlled-substance crime in 2012 as the basis for the firearm-possession
charge.
At a pretrial hearing on April 12, all parties appeared. In response to the district
court’s inquiry, Hussein’s attorney stated that he was aware of the second amended
complaint and was not objecting “at this time” but was “likely reserving that.” Hussein
entered a plea of not guilty to the added count three “by reason of mental deficiency.” Next,
Hussein stated he wanted to waive his right to a jury trial. The district court inquired of
Hussein, who was under oath; based on the colloquy, the district court found that Hussein
was “knowingly, freely, and voluntarily” waiving his right to a jury trial.
On April 15, 2024, the parties appeared for a court trial and Hussein asked to
proceed on stipulated evidence. After some discussion, the parties agreed to proceed with
stipulated evidence for the first phase of trial—determining guilt on the charges in the
4 second amended complaint. The parties agreed on the contents of the stipulated evidence 3
and the timing for submissions and proposed findings, and the parties also identified the
witnesses for the second phase of trial—determining Hussein’s mental-illness defense.
Before proceeding, the district court inquired of Hussein about the
stipulated-evidence procedure, engaged him in a colloquy about the waiver, and discussed
a signed waiver that Hussein prepared with his attorney. The district court found that
Hussein was “entering into this knowingly, freely, and voluntarily” and that Hussein
“understands the constitutional rights that he’s waiving in order to proceed in this fashion.”
The district court stated that it would “allow[] him to do so” and received Hussein’s written
waiver of trial rights and agreement to proceed on stipulated evidence.
The next day, the parties submitted proposed findings of fact. The parties’ proposed
factual findings were similar to each other. Hussein’s proposed findings concluded that all
three counts had been proved beyond a reasonable doubt.
On April 18, 2024, the parties appeared for the second phase of trial. Before
proceeding with evidence, the parties discussed the proposed factual findings on the record.
The prosecuting attorney expressed concern because Hussein’s proposed findings “were
essentially the same as the State’s proposed findings and advocated for the same outcome,”
but “normally when a defense counsel . . . concedes or stipulates to elements [of an
offense], that must be done with . . . the Defendant’s permission, consent, or
acquiescence.” The prosecuting attorney stated they believed “that [was] the case here” but
3 The parties agreed to admit exhibit 1, “a set of investigative materials,” and exhibit 2, “a certified record of conviction,” as stipulated evidence.
5 asked the district court “to make a record, before it announce[d] its findings, that Mr.
Hussein was in accordance with the submission that was presented to the court.”
The district court agreed that the proposed findings from the state and Hussein were
very similar but added that the district court “assumed that [Hussein] wasn’t conceding and
considered the record as a whole.” The district court inquired of Hussein’s attorney, who
stated that “we did not have an intent to concede.” The district court stated that it considered
the proposed findings “only in the light of [its] own independent review” of the stipulated
evidence. The district court then found Hussein guilty of all three counts and later filed
written findings of fact and conclusions of law that aligned with the parties’ proposed
orders.
The district court then proceeded with the second phase of trial—Hussein’s
mental-illness defense. The district court heard testimony from Hussein, a psychiatric
healthcare provider who treated Hussein, and the court-appointed psychological examiner
who conducted Hussein’s mental evaluations under rule 20.01 for competency and
rule 20.02 for his defense. The district court also received the healthcare provider’s
curriculum vitae, a letter from the healthcare provider, and a report from the psychological
examiner. The parties submitted briefs.
The district court prepared written findings of fact, conclusions of law, and an order.
The district court found that Hussein had been diagnosed with post-traumatic stress
disorder (PTSD), paranoid-type schizophrenia, and chemical dependency. Hussein’s
“PTSD is the result of horrific incidents that began in his childhood.” The district court
found Hussein’s testimony about his childhood as a soldier in Somalia to be credible and
6 included detailed findings about Hussein’s experiences. The district court determined that,
based on the evidence presented during the second phase of trial, Hussein was suffering
from mental illness at the time of the offenses, but Hussein did not establish that he “did
not understand the wrongfulness of his actions . . . by a preponderance of the evidence.”
The district court found Hussein guilty of all three counts at a May 2024 hearing.
The district court sentenced Hussein to 60 months for the firearm-possession conviction,
with the sentences for the two assaults to be served concurrently.
Hussein appeals.
DECISION
Hussein raises four issues on appeal, which we reorganize slightly into two issues. 4
First, he argues that his conviction for unlawful firearm possession must be vacated
because the applicable statute of limitations expired before the state amended the complaint
to add the charge. Second, he argues that he received ineffective assistance of counsel
before and during trial. We address these arguments in turn.
4 On appeal, Hussein’s brief identifies four issues: (1) his firearm-possession conviction must be vacated because “the crime was charged in violation of the statute of limitations”; (2) Hussein’s trial counsel provided ineffective assistance of counsel “by failing to seek dismissal of the firearm possession count”; (3) Hussein’s sentences on the second-degree assault convictions “must be corrected when the firearm possession conviction is vacated”; and (4) Hussein’s trial counsel provided ineffective assistance of counsel “by conceding all elements of the charged offenses without Hussein’s consent or acquiescence.” This opinion considers issues (1) and (3) together and considers issues (2) and (4) together.
7 I. Hussein is not entitled to relief on count three based on the statute of limitations.
Hussein argues that the applicable statute of limitations barred count three, unlawful
firearm possession, because the state amended its complaint after the limitations period
expired. Appellate courts review “the construction and application of a statute of
limitations” de novo. State v. Carlson, 845 N.W.2d 827, 832 (Minn. App. 2014) (quotation
omitted), rev. denied (Minn. June 17, 2014).
The legislature set out limitation periods for charging criminal offenses by
indictment or complaint in Minn. Stat. § 628.26 (2024). Parts (a) through (j) of
section 628.26 provide limitation periods for specific offenses, but do not include unlawful
firearm possession. Minn. Stat. § 628.26(a)-(j). There is a catch-all limitation period: “In
all other cases, indictments or complaints shall be found or made and filed in the proper
court within three years after the commission of the offense.” Minn. Stat. § 628.26(k)
(emphasis added). Therefore, the limitations period for unlawful firearm possession is three
years after the offense is committed.
The state’s second amended complaint alleged that Hussein’s firearm-possession
offense occurred on November 3, 2019, and the state amended the complaint to add that
charge on April 12, 2024. Hussein argues that the district court plainly erred by allowing
the state to amend the complaint to add the firearm-possession count after the limitations
period expired. The state agrees that it amended the complaint to add count three after the
three-year limitations period expired, but argues that Hussein forfeited any argument about
8 the statute of limitations by failing to raise it during district court proceedings. The state
also contends that plain-error review does not apply.
Generally, when an appellant in a criminal case fails to raise an issue to the district
court, it is either forfeited or reviewed for plain error. Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996) (determining the appellant forfeited an objection to a warrantless search
because the issue was not raised during district court proceedings); Minn. R. Crim. P. 31.02
(“Plain error affecting a substantial right can be considered by the court . . . on appeal even
if it was not brought to the trial court’s attention.”). Appellate courts generally apply
plain-error review when an appellant fails to object during trial proceedings. Montanaro v.
State, 802 N.W.2d 726, 732-33 (Minn. 2011) (observing that the plain-error rule gives
appellate courts “the discretion to review an unobjected-to trial error” and reviewing
unobjected-to jury instruction); see also State v. Turner, No. A24-0219, 2025 WL 368539,
at *6 (Minn. App. Feb. 3, 2025) (observing that “plain-error review is generally reserved
for unobjected-to trial errors” and listing supreme court opinions (emphasis omitted)). 5
The statute of limitations provides an affirmative defense that is not jurisdictional.
Reed v. State, 793 N.W.2d 725, 731-32 (Minn. 2010). We need not determine whether
Hussein forfeited this issue or whether plain-error review applies to a nonjurisdictional
affirmative defense. Instead, we may assume without deciding that plain-error review
5 Nonprecedential opinions “are not binding authority” but “may be cited as persuasive authority.” Minn. R. Civ. App. P. 136.01, subd. 1(c); see State v. Monyak, 14 N.W.3d 210, 215 n.2 (Minn. App. 2024) (applying rule 136.01, subd. 1(c) in the criminal context).
9 applies and determine whether the district court plainly erred by allowing the state to
amend its complaint to add count three.
Plain-error review determines whether (1) there was an error, (2) the error was plain,
and (3) the error affected Hussein’s substantial rights. State v. Griller, 583 N.W.2d 736,
740 (Minn. 1998). An appellate court will reverse if it concludes that the three requirements
are satisfied and that the error must be addressed “to ensure fairness and the integrity of
the judicial proceedings.” Id. If “any one of the requirements is not satisfied,” this court
“need not address any of the others.” Montanaro, 802 N.W.2d at 732.
We turn to the first requirement of the plain-error test. “An error is plain if it is clear
and obvious; usually this means an error that violates or contradicts case law, a rule, or an
applicable standard of conduct.” State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).
An error is not plain if the appellate courts have not ruled on the issue. See State v. Webster,
894 N.W.2d 782, 787 (Minn. 2017) (concluding that the district court did not plainly err
by giving a jury instruction because the instruction was consistent with the pattern
instruction and did “not contravene existing case law”).
Hussein appears to argue that the district court plainly erred by allowing the state to
add count three because the state amended the complaint after the limitations period
expired. Hussein relies on the limitations statute, Minn. Stat. § 628.26, and does not discuss
any caselaw. The state counters that the district court did not plainly err because the initial
10 complaint was timely and tolled the statute of limitations, citing the rules of criminal
procedure and caselaw. 6
The state relies on the supreme court’s ruling that the statute of limitations is “in
effect, ‘tolled’” by a timely indictment, as discussed in State v. Dwire, 409 N.W.2d 498,
503 (Minn. 1987). In Dwire, the state filed new criminal complaints while earlier
indictments against Dwire were pending appeal. 409 N.W.2d at 500. After this court
dismissed the indictments, the district court dismissed the complaints on a procedural
ground and the state appealed. Id. This court reversed, and the supreme court granted
review, asking the parties to brief whether the limitations period expired while the
indictments were pending appeal. Id. at 500, 503. The supreme court ultimately affirmed,
deciding that the limitations period was tolled “during the pendency of an indictment
containing a defect curable by amendment.” Id. at 503. The supreme court also determined
that the original indictments “put [Dwire] on timely notice” because they were “filed within
the statutory timeframe” and indicated that Dwire would “be called to account for [his]
activities and should prepare a defense.” Id. (quotation omitted); see also State v.
Heffelfinger, 266 N.W. 751, 754-55 (Minn. 1936) (holding that an amended indictment
filed after the statute of limitations expired was a continuation of the original indictment
and related back to the date of the original indictment).
6 A district court has discretion to allow the state to amend its complaint. “Under Minn. R. Crim. P. 3.04, subd. 2, the trial court is relatively free to permit amendments to charge additional offenses before trial is commenced, provided the trial court allows continuances where needed.” State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). Before trial begins, a district court is “free to allow an amendment charging an additional or greater offense.” Id.
11 Dwire supports the state’s argument that the district court did not plainly err, based
on Dwire’s reasoning that filing a timely criminal complaint or indictment tolls the
limitations period. 409 N.W.2d at 503. Dwire emphasizes the importance of giving a
defendant notice of the need to prepare a defense. Id. And Hussein arguably had notice
based on the state’s allegations that Hussein had a gun in the original and first amended
complaints. But other facts in Dwire may be materially different from the facts here—the
state amended Hussein’s complaint to add a new charge, not to remedy a defect in the
original complaint. 7
The state points out that this court has distinguished Dwire and enforced a
limitations period in a nonprecedential opinion that the state describes as an “outlier” and
of which, in a footnote, it invites us to “abrogate the holding.” In State v. McNitt, the state
first charged McNitt “by complaint with one count of possession of pornographic work
involving minors.” No. A17-0092, 2017 WL 3379191, at *1 (Minn. App. Aug. 7, 2017),
rev. denied (Minn. Oct. 17, 2017). A few days before trial and after the limitations period
expired, “the state amended the complaint to add two counts of possession of pornographic
work involving minors” based on files found on the same hard drive with the files that led
7 In other contexts, this court has considered whether the statute of limitations bars the state from amending a criminal complaint and held that it does not. See, e.g., Carlson, 845 N.W.2d at 833-34 (deciding the state’s initial “John Doe DNA complaint” filed within the limitations period “satisfie[d] the applicable statute of limitations” and allowed the state to amend the complaint to name the defendant after the limitations period expired); State v. Gruska, No. C8-95-414, 1995 WL 579422, at *1 (Minn. App. Oct. 3, 1995) (rejecting the appellant’s argument that the statute of limitations barred the state’s amendment to add a second theft-by-swindle count on the first day of trial, reasoning that an “amendment filed after the statute of limitations has expired is a continuation of the original indictment or complaint and relates back to the filing date of the original complaint or indictment”).
12 to the original charge. Id. at *1, *3. “McNitt moved to dismiss the additional counts as
beyond the statute of limitations, and the district court denied McNitt’s motion.” Id. at *1.
McNitt appealed, and this court reversed on the limitations issue. Id. at *1-3.
This court reasoned that, unlike the indictment in Dwire, “the original complaint
against McNitt had no defect.” Id. at *2. Second, the court of appeals emphasized that the
state “added two additional counts for possession of pornographic work involving minors
at the same severity level as the original charge, thereby tripling the number of charges,
and increasing the possible sentence, against McNitt.” Id. This court therefore concluded
“that the district court erred as a matter of law in determining that the statute of limitations
was tolled when the state filed the first count.” Id. at *3.
We need not resolve any perceived tension between Dwire and McNitt. Hussein is
only entitled to relief if the error is plain. An error is plain only if it is “clear and obvious,”
which “usually” means that the error “violates or contradicts case law, a rule, or an
applicable standard of conduct.” Matthews, 779 N.W.2d at 549. An error is not plain if it
does not conflict with existing caselaw. See Webster, 894 N.W.2d at 787 (rejecting the
appellant’s jury-instruction challenge, in part because “the instruction does not contravene
existing caselaw”).
No precedential caselaw suggests that the district court plainly erred by allowing
the state to amend its complaint to add count three. While McNitt suggests that allowing
new charges on the eve of trial was an abuse of discretion, this court did not apply
plain-error review in McNitt because McNitt—unlike Hussein—moved to dismiss the new
charges in district court. McNitt, 2017 WL 3379191, at *1. Also, McNitt is a
13 nonprecedential opinion, which is “not binding authority.” Minn. R. Civ. App. P. 136.01,
subd. 1(c). In contrast, the supreme court in Dwire established precedent on the central
point of law, and while factually different, Dwire suggests that filing a timely initial
complaint tolls the statute of limitations. See Dwire, 409 N.W.2d at 503.
We therefore conclude that the district court did not plainly err by allowing the state
to add count three after the limitations period expired. Because we determine that any error
is not plain, we need not consider the other plain-error requirements. See Montanaro,
802 N.W.2d at 732. And we therefore need not consider Hussein’s related argument that
vacating his conviction for unlawful firearm possession requires him to be resentenced on
other convictions.
II. Because the record is insufficient to determine whether Hussein received ineffective assistance of counsel, we decline to decide the issue.
Hussein argues that he is entitled to a new trial because his attorney provided
ineffective assistance of counsel. “Generally, an ineffective-assistance-of-counsel claim
should be raised in a postconviction petition for relief, rather than on direct appeal, because
an evidentiary hearing, if granted, provides the district court with additional facts to explain
the parties’ decisions.” State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). But
“[w]hen a claim of ineffective assistance of trial counsel can be determined on the basis of
the trial record, the claim must be brought on direct appeal.” Andersen v. State, 830 N.W.2d
1, 10 (Minn. 2013).
A criminal defendant has a constitutional right to the effective assistance of counsel.
U.S. Const. amend. VI; Minn. Const. art. 1, § 6; State v. Rhodes, 657 N.W.2d 823, 842
14 (Minn. 2003). Appellate courts use a two-step test to determine an
ineffective-assistance-of-counsel claim under Strickland v. Washington, 466 U.S. 668
(1984). Rhodes, 657 N.W.2d at 842. To prove ineffective assistance of counsel, an
appellant must demonstrate (1) “that counsel’s performance fell below an objective
standard of reasonableness” and (2) “that a reasonable probability exists that the outcome
would have been different but for counsel’s errors.” Id. (quotation omitted). Appellate
courts review claims of ineffective assistance of counsel de novo. Id. A reviewing court
“need not address both the performance and prejudice prongs if one is determinative.” Id.
Under the first step, the reasonableness of Hussein’s attorney’s performance,
“[o]bjective reasonableness requires that counsel exercise the customary skills and
diligence that a reasonably competent attorney would exercise under the circumstances.”
State v. Miller, 754 N.W.2d 686, 709 (Minn. 2008) (quotation omitted). “There is a strong
presumption that a counsel’s performance falls within the wide range of reasonable
professional assistance.” Id. (quotations omitted). Also, we generally refuse to consider
trial strategy as part of the first step because “[w]hat evidence to present to the jury,
including which defenses to raise at trial and what witnesses to call, represent an attorney’s
decision regarding trial tactics which lie within the proper discretion of trial counsel and
will not be reviewed later for competence.” State v. Voorhees, 596 N.W.2d 241, 255 (Minn.
1999).
Hussein argues that he received ineffective assistance of counsel for two reasons.
First, he argues that his counsel provided ineffective assistance by failing to object to or
move to dismiss count three. Second, he argues that his counsel provided ineffective
15 assistance by submitting proposed findings that “conceded every element of the charged
offenses without securing Hussein’s consent to do so.” We address his arguments in turn.
A. Statute of Limitations
Hussein argues that his attorney’s conduct fell below the objective standard of
reasonableness because he failed to object to or move to dismiss count three based on the
statute of limitations. The state argues that “the statute of limitations did not bar pretrial
amendments to the complaint,” and therefore, Hussein’s attorney “had no basis to object
to the amendment, and his representation did not fall below an objective standard of
reasonableness.”
Caselaw suggests that an attorney’s performance may be deficient for failure to
make a dispositive motion. See Johnson v. State, 654 N.W.2d 126, 131-33 (Minn. App.
2002) (concluding that trial counsel provided ineffective assistance by failing to move to
suppress DNA evidence), rev’d on other grounds, 673 N.W.2d 144 (Minn. 2004). On the
other hand, decisions like “which defenses to raise at trial” usually “represent an attorney’s
decision regarding trial tactics which lie within the proper discretion of trial counsel and
will not be reviewed later for competence.” Voorhees, 596 N.W.2d at 255. The supreme
court has concluded that “waiving a statute-of-limitations claim to a lesser offense may be
a valid trial strategy designed to avoid the risk of an unwarranted conviction.” Reed,
793 N.W.2d at 734.
As discussed above, some nonprecedential caselaw would support an objection to
or motion to dismiss count three based on the statute of limitations. See McNitt, 2017 WL
3379191, at *2-3. And Hussein argues that “[n]o reasonable strategy exists for acquiescing
16 to the illegal charge because it was not a lesser offense; in fact, it carried the longest
sentence of the three charges” and “the firearm-possession charge made it more likely that
the state would get a conviction because the possession was easily provable.”
We conclude that we lack an adequate record on which to determine whether
Hussein’s attorney made an objectively reasonable and perhaps strategic decision not to
argue that count three was time-barred. A postconviction evidentiary hearing, if granted,
may provide “additional facts to explain the parties’ decisions.” Ellis-Strong, 899 N.W.2d
at 535. For example, we have no record on whether Hussein’s attorney researched the
limitations issue or whether Hussein consented in the decision not to challenge count three
as time-barred.
We decline to rule on this claim for ineffective assistance of counsel. Hussein may
choose to raise this issue in a petition for postconviction relief. See State v. Gustafson,
610 N.W.2d 314, 321 (Minn. 2000) (“Therefore, while we decline to reach the merits of
this issue, Gustafson’s right to pursue an ineffective assistance of counsel claim in a
petition for postconviction relief is preserved.”).
B. Concession of Guilt
Hussein argues that his counsel provided ineffective assistance by conceding to the
elements of his offenses in the proposed findings submitted during the first phase of his
trial “without securing Hussein’s consent to do so.” The state argues that the record
“demonstrates that Hussein acquiesced in this understandable trial strategy” and that, “[if]
it cannot be discerned whether or not Hussein acquiesced in the trial strategy, this Court
may decline to decide on the issue and allow Hussein to seek postconviction relief.”
17 Generally, “[a]dmitting a client’s guilt without the client’s consent or acquiescence
is deemed ineffective assistance of counsel and is grounds for a new trial.” State v. Provost,
490 N.W.2d 93, 97 (Minn. 1992). But “[e]ven if counsel admits guilt without the
defendant’s permission, no error will be found if the defendant acquiesced in the strategy.”
Dukes v. State, 621 N.W.2d 246, 254 (Minn. 2001). Appellate courts “apply a two-step
analysis to ineffective-assistance claims involving an alleged unauthorized concession of
guilt.” State v. Luby, 904 N.W.2d 453, 457 (Minn. 2017); see also State v. Prtine,
784 N.W.2d 303, 318 (Minn. 2010) (applying two-step analysis).
First, we “review the record de novo to determine whether defense counsel made a
concession of guilt.” Luby, 904 N.W.2d at 457. Hussein’s proposed findings of fact
discussed each of the three charges. For count one, the proposed factual findings stated that
Hussein “intentionally inflicted and/or attempted to inflict bodily harm” using a firearm
“on or about November 3, 2019, in Olmsted County.” For count two, the proposed findings
stated that Hussein intended “to cause [the convenience-store victim] to fear immediate
bodily harm or death” using a firearm, “on or about November 3, 2019, in Olmsted
County.” For count three, the proposed findings stated that Hussein directly and
“knowingly possessed a firearm and/or ammunition” in Olmsted County “on or about
November 3, 2019,” and that he was “ineligible to possess a firearm” based on a
controlled-substance felony. We conclude that Hussein’s proposed findings conceded his
guilt on each of the three charges.
Second, we consider whether Hussein “acquiesced in that concession.” Id.
(quotation omitted). The parties agree that there is no express consent to the concession of
18 guilt. As a result, this court looks “at the entire record to determine if the defendant
acquiesced in his counsel’s strategy.” Id. at 459 (quotation omitted). “Acquiescence may
be implied in certain circumstances, such as (1) when defense counsel uses the concession
strategy throughout trial without objection from the defendant, or (2) when the concession
was an understandable strategy and the defendant was present, understood a concession
was being made, but failed to object.” Id. (quotation omitted).
Hussein argues that conceding his guilt on all charges was not a reasonable strategy,
contrasting his bench trial with the jury trial in Prtine, in which the supreme court noted
that a concession “may have been a valid strategy to build credibility with the jury.”
784 N.W.2d at 318. Hussein contends that conceding his guilt did not build his credibility
because there was no jury. He accordingly argues that conceding his guilt was not a
reasonable strategy and that he did not acquiesce to his attorney doing so.
The state counters that “Hussein’s trial strategy centered on his affirmative defense
that he was not responsible for his actions due to a mental defect” and that “[i]t was an
understandable strategy for [Hussein’s attorney] to move through the guilt phase of the
bifurcated trial with the least amount of friction to concentrate the fact-finder’s attention
on the mental illness defense.” The state also points out that the prosecuting attorney
questioned whether Hussein’s proposed findings conceded his guilt in open court, “Hussein
had a complete opportunity to express any objection to the proposed findings submitted by
his attorney,” and “Hussein raised no such objection.”
We conclude that conceding Hussein’s guilt on all charges may have been part of
an articulable and valid trial strategy to focus on the mental-illness defense and that it is
19 possible that Hussein may have consented or acquiesced in this strategy. The record,
however, does not allow us to determine whether Hussein did so. We recognize that
Hussein did not object to the proposed findings when the prosecuting attorney aired
concerns about the submitted findings. But Hussein’s failure to object must be considered
in light of the district court explicitly stating that it “in no way considered that Mr. Hussein
was conceding . . . to any of the facts in that they would support a guilty verdict.”
We have no record related to Hussein’s communications with his attorney on this
issue. We therefore conclude that the record is not adequate to determine whether Hussein
received ineffective assistance of counsel based on his proposed findings during phase one
of his trial, and we decline to decide this claim of ineffective assistance of counsel. Hussein
may raise this issue in a petition for postconviction relief if he so chooses.
Affirmed.