Opinion
No. C2-97-1014.
Filed December 9, 1997.
Appeal from the District Court, Polk County, File No. K9961401.
Kyle D. White, and Sergio R. Andrade, (for appellant).
Hubert H. Humphrey III, Attorney General, and Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, (for respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant, a resident alien from Mexico, appeals from the trial court's denial of his petition for postconviction relief, contending that he should have been allowed to withdraw his guilty plea because (1) his plea was not knowing, intelligent and voluntary, (2) his plea was improperly induced by unfulfilled promises of leniency, (3) he lacked effective assistance of counsel because his attorney did not tell him that he could be deported as a consequence of his plea, and (4) the accuracy of the plea was affected by mistranslations and the lack of a written plea petiton. We affirm.
FACTS
In October 1996, appellant pleaded guilty to controlled substance crime in the second degree and to wrongfully obtaining food stamps and AFDC. In November 1996, the trial court sentenced appellant to 54 months for the drug offense and gave him concurrent sentences of 13 months and 12 months for the food stamp and AFDC fraud offenses. After sentencing, appellant was transferred to Stillwater Correctional
Minn. Stat. § 152.022, subds. 1(1), 3(a) (1996).
Minn. Stat. §§ 256.98, subd. 1, 609.52, subd. 3(3)(a), 393.07, subd. 10(c)(1), 609.52, subd. 3(4) (1996).
Facility, where he currently resides. The Immigration and Naturalization Service (INS) filed a detainer action against appellant, which kept him from entering a boot camp program.
In April 1997, appellant filed a petition for postconviction relief, requesting that his guilty plea be withdrawn. In May 1997, the trial court denied appellant's petition. Appellant filed a motion to reconsider, which the court also denied. This appeal followed.
DECISION
A defendant may withdraw a guilty plea only after making a showing that the motion is timely and that "withdrawal is necessary to correct a manifest injustice." Minn.R.Crim.P. 15.05, subd. 1. The defendant bears "the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case." State v. Rainer , 502 N.W.2d 784, 787 (Minn. 1993) (citing Minn. Stat. § 590.04, subd. 3 (1992)). On appeal, this court reviews "whether the evidence is sufficient to sustain the postconviction court's findings and will not overturn the postconviction court's findings absent an abuse of discretion." State v. King , 562 N.W.2d 791, 794 (Minn. 1997).
I. Withdrawal of Guilty Plea
Appellant argues that he should be entitled to withdraw his guilty plea because it was not accurate, voluntary and intelligent. State v. Trott , 338 N.W.2d 248, 251 (Minn. 1983) (stating that a valid plea must be accurate, voluntary and intelligent). The accuracy requirement protects a defendant from "pleading guilty to a more serious offense than he could be convicted of were he to insist on his right to trial." Id. The voluntariness requirement ensures "that the defendant is not pleading guilty because of improper pressures." Id. The intelligence requirement ensures "that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea." Id.
A. Voluntariness
Appellant claims that his plea was not voluntary because it was induced by an unfulfilled promise of leniency. The record does not support appellant's contention that he was promised that if he pleaded guilty, he would receive six months in the boot camp. The plea agreement called for a sentence of 54 months in prison, but that sentence only made appellant eligible for the boot camp program. At no point during the hearing did the prosecutor promise appellant that his sentence would be six months in the boot camp. Thus, appellant's plea was not induced by unfulfilled promises of leniency.
B. Notice of Immigration Consequences
Appellant claims his plea was not intelligent because he did not know he could be deported as a result of his plea. Minnesota courts have never determined whether a trial judge or defense attorney is obligated to inform a criminal defendant of the immigration consequences of a plea. The courts have, however, upheld convictions in two different cases where the defendant claimed his attorney had not told him about the possible immigration consequences of his plea, but there was evidence that the attorney had in fact discussed it with the defendant. State v. Aviles-Alvarez , 561 N.W.2d 523, 527 (Minn.App. 1997) (holding that the trial court did not err in finding defendant knew about deportation consequences where his attorney stated in an affidavit that he informed defendant of the possibility of deportation), review denied (Minn. June 11, 1997); State v. Lopez , 379 N.W.2d 633, 637-38 (Minn.App. 1986) (holding that the trial court did not err in finding that defendant was adequately informed of his rights where his attorney testified that he had "discussed possible immigration consequences with defendant `several' times), review denied (Minn. Feb. 14, 1986).
Generally, defendants are not entitled to withdraw their guilty pleas based on their ignorance of collateral consequences of a plea. Kim v. State , 434 N.W.2d 263, 266-67 (Minn. 1989) (holding that defendant was not entitled to withdraw his guilty plea based on mistaken belief as to collateral effect on his employment). The federal courts have uniformly held that courts are not required to inform defendants of the immigration consequences of a plea. See, e.g., United States v. Romera-Vilca , 850 F.2d 177, 179 (3rd Cir. 1988); Downs-Morgan v. United States , 765 F.2d 1534, 1538-41 (11th Cir. 1985). State courts are divided on the issue. Some states have statutes that require judges to inform all defendants regardless of their citizenship status. See, e.g., Perriello v. State , 684 So.2d 258, 259 (Fla.Dist.Ct.App. 1996). Other states, such as North Dakota and Iowa, do not require any disclosure to defendants. State v. Dalman , 520 N.W.2d 860, 863 (N.D. 1994); Mott v. State , 407 N.W.2d 581, 583 (Iowa 1987).
Although this court in Lopez did not decide whether a trial judge is obligated to inform a criminal defendant of the possible immigration consequences of a guilty plea, the court did note that deportation is a collateral consequence of a guilty plea. Lopez , 379 N.W.2d at 637. The Lopez court then listed three factors set forth by the D.C. Circuit for consideration in cases involving immigration consequences: (1) the strength of defendant's case, including any claims of innocence; (2) prejudice to the government's case resulting from a defendant's untimely request to stand trial; and (3) whether governmental authorities made misleading statements to defendant about immigration consequences or defendant's claim is based on his own ignorance. Id. (citing United States v. Russell , 686 F.2d 35, 39 (D.C. Cir. 1982)).
The trial court correctly denied appellant's motion to withdraw his plea. Although appellant is now claiming innocence, his claim is without merit. Appellant has not presented any facts to suggest that a jury would find him innocent. Contrary to appellant's contention, appellant never made any claims of innocence at the plea hearing. In relation to the drug charge, appellant denied selling to an identified minor, but admitted that he had made other sales to other individuals within the time period alleged in the complaint. Thus, appellant admitted his guilt of the drug charge.
Additionally, appellant's petition was untimely. Minn.R.Crim.P. 15.05, subd. 1, requires a timely petition to withdraw a guilty plea. This court has held a petition filed just under two months after sentencing untimely. State v. Andren , 358 N.W.2d 428, 431 (Minn.App. 1984). Appellant filed his petition in this case, five and one-half months after his plea and four and one-half months after sentencing. Hence, the government's case is likely to be prejudiced by appellant's untimely request to stand trial.
Further, appellant has not alleged that the court or the prosecutor made any misleading statements about the immigration consequences of his plea. Appellant is merely claiming that neither the court nor his attorney informed him of the possibility of deportation. The court did not even know that appellant was a resident alien, because appellant had held himself out as a United States citizen. Thus, the court had no reason to suspect appellant would be subject to deportation and absent any rule requiring the court to inform him of possible immigration consequences before accepting a guilty plea, there is no authority supporting appellant's claim that the court should have made this disclosure to him.
C. Accuracy
Appellant failed to meet his burden of showing that he did not understand the in-court translations by the interpreter and that some of the translations were inaccurate. State v. Montalvo , 324 N.W.2d 650, 652 (Minn. 1982). Appellant has not produced any evidence to show inaccuracies or identified any specific instance when he did not understand the interpreter. Nor did appellant object or indicate in any way at the hearing that he did not understand what was being said. Thus, it appears the trial court properly found that appellant failed to meet his burden.
Appellant's claim that his plea was not accurate because he did not sign a written multilingual plea petition lacks merit. Minnesota does not require written plea petitions. Minn.R.Crim.P. 15.01; Perkins v. State , 559 N.W.2d 678, 686-87 (Minn. 1997) (stating that use of a written petition is at the trial court's discretion). Minn.R.Crim.P. 15.11 requires the use of an interpreter or multilingual petition in cases where a written plea petition is used; it does not require the state to use a written petition in all cases. Thus, the lack of a plea petition alone, without further evidence of inaccuracy, does not invalidate a plea.
II. Ineffective Assistance of Counsel
In order to prove ineffective assistance of counsel, [t]he defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984)).
Appellant contends that his attorney was ineffective because he failed to inform him of the possibility of deportation resulting from his guilty plea. The federal courts that have addressed this issue have uniformly held that a defense attorney's failure to warn a client of the possible immigration consequences of a plea does not amount to ineffective assistance of counsel. United States v. Banda , 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser , 976 F.2d 1357, 1358 (10th Cir. 1992) (holding that there is no duty to warn because deportation is a collateral consequence), cert. denied , 507 U.S. 1039, 113 S.Ct. 1869 (1993). Most of the states that have addressed the issue have reached the same conclusion. Dalman , 520 N.W.2d at 863-64 (listing the state court decisions); Mott , 407 N.W.2d at 584 (explaining that although deportation is a serious consequence, it is nonetheless a collateral one and does not amount to ineffective assistance of counsel in the absence of affirmative misleading by defense counsel).
Appellant asserts that he would not have pleaded guilty if he had known he could be subject to deportation. But he has not presented any evidence to show that the result of the proceeding would have been different if he had known. He does not claim that he would have gotten a better deal from the prosecutor, nor does he claim that a jury would have likely acquitted him if he had proceeded to trial. As discussed previously: appellant does not make a valid claim of innocence; his petition to withdraw was untimely; and neither his attorney nor the state affirmatively misled him about the possible immigration consequences of his plea. Furthermore, appellant does not even claim that his attorney knew that he was a resident alien. Appellant has apparently held himself out as a citizen. It would be a heavy burden to put on defense attorneys to require them to investigate the citizenship status of each of their clients, especially in cases where their client claims to be a United States citizen.
Under these facts, there is no evidence that appellant's counsel's performance was deficient. Nor has appellant presented any evidence to show that the result of the proceeding would have been different. The trial court did not abuse its discretion in denying appellant's ineffective assistance of counsel claim.
III. Denial of Evidentiary Hearing
"A postconviction court is not required to hold an evidentiary hearing unless there are material facts in dispute which must be resolved in order to determine the postconviction claim on the merits." King , 562 N.W.2d at 794. The trial court correctly found that appellant's allegations lacked any factual or evidentiary basis and were conclusory. Accordingly, the trial court properly denied appellant's motion for an evidentiary hearing.