This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0690
German N. Salgado Velasquez, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent
Filed December 29, 2014
Affirmed
Worke, Judge
Scott County District Court
File No. 70-CR-06-22930
Khanh Ngoc Nguyen, Bloomington, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s denial of his petition to withdraw his
guilty plea. We affirm.
FACTS
On November 28, 2007, appellant German N. Salgado Velasquez pleaded guilty to
fifth-degree domestic assault. He was represented by counsel, completed and signed a
petition to plead guilty, and was questioned by the district court before his plea was
accepted. The petition did not mention immigration consequences that might result from
the conviction, nor were any discussed on the record. Velasquez was placed on probation
for up to one year; he was discharged from probation on November 25, 2008.
In September 2013, the Department of Homeland Security commenced
deportation proceedings against Velasquez. The notice of removal contained no
reference to his domestic-assault conviction; rather, the reason stated for deportation was
that Velasquez is an undocumented immigrant.
In December 2013, Velasquez moved the district court to withdraw his plea and
vacate his conviction. His submission was entitled a “motion” but internally referred to
itself as a “petition for postconviction relief.” Velasquez asserted that his plea was
invalid because he was never advised of possible immigration consequences stemming
from his plea. Velasquez stated that, because his conviction was a crime involving moral
turpitude, he is disqualified from receiving a potential cancellation of removal, which
might prevent his deportation.
The district court denied the motion on grounds that it was untimely and
substantively without merit; it also concluded that Velasquez’s submission was a motion
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and not a petition for postconviction relief due to irregularities in filing. This appeal
follows.
DECISION
Petition for postconviction relief
The district court concluded that Velasquez’s submission was a motion, not a
petition for postconviction relief. We must resolve whether the submission comported
with statutes governing petitions for postconviction relief. “Application of a statute to the
undisputed facts of a case involves a question of law, and the district court’s decision is
not binding on this court.” State v. Johnson, 743 N.W.2d 622, 625 (Minn. App. 2008).
When direct appeal is no longer available, a person convicted of a crime who
claims that the conviction violated his rights may file a petition in the district court to
vacate and set aside the judgment. Minn. Stat. § 590.01, subd. 1 (2012). The district
court found Velasquez’s submission defective as a postconviction petition because it: (1)
was not entitled in the name of petitioner versus the state, (2) contained argument and
citation of authorities, and (3) was not filed with an original document and three copies.
See Minn. Stat. § 590.02 (2012) (setting out requirements of postconviction petitions).
However, section 590.02 also requires “a statement of the facts and the grounds
upon which the petition is based and the relief desired[,]” “an identification of the
proceedings in which the petitioner was convicted including the date of the entry of
judgment and . . . disposition complained of[,]” and “the name and address of any
attorney representing the petitioner.” Id., subd. 1. Velasquez’s submission included all
of these items.
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Minn. Stat. § 590.03 (2012) directs that “[t]he [district] court shall liberally
construe the petition and . . . shall look to the substance thereof and waive any
irregularities or defects in form.” While Velasquez’s submission suffered from several
flaws in form, it was in substance a petition for postconviction relief, and the district
court should have construed it as such.
Timeliness
Velasquez next contends that the district court erred in concluding that his petition
was time-barred, claiming that the interests-of-justice exception applies to his case. “In
reviewing the district court’s denial of postconviction relief, including a denial based on
the two-year statutory limit, we review issues of law de novo but will not reverse factual
findings unless clearly erroneous.” Vazquez v. State, 822 N.W.2d 313, 315-16 (Minn.
App. 2012).
Generally, a petition for postconviction relief may not be filed more than two
years after judgment of conviction if no appeal was pursued. Minn. Stat. § 590.01, subd.
4(a)(1) (2012). An exception exists when “the petitioner establishes to the satisfaction of
the court that the petition is . . . in the interests of justice.” Id., subd. 4(b)(5). The
interests-of-justice exception applies only in exceptional circumstances and is based upon
a flexible, multifactor analysis. Gassler v. State, 787 N.W.2d 575, 586-87 (Minn. 2010).
But “[a]ny petition invoking [this] exception . . . must be filed within two years of the
date the claim arises.” Minn. Stat. § 590.01, subd. 4(c). “‘Claim’ refers to an event that
supports a right to relief under the asserted exception.” Yang v. State, 805 N.W.2d 921,
925 (Minn. App. 2011), review denied (Minn. Aug. 7, 2012). The date a claim arises is
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based upon an objective “knew or should have known standard.” Sanchez v. State, 816
N.W.2d 550, 560 (Minn. 2012). The date an interests-of-justice claim arises is a question
of fact. Id.
The district court found that “at best, [Velasquez’s] claim arose in 2010, when
Padilla [v. Kentucky] was decided.” Padilla held that failure of counsel to advise of
immigration consequences stemming from a guilty plea is ineffective assistance of
counsel. 559 U.S. 356, 374, 130 S. Ct. 1473, 1486 (2010). But Padilla does not have
retroactive effect, Campos v. State, 816 N.W.2d 480, 499 (Minn. 2012), and cannot
provide a basis for withdrawal of Velasquez’s plea. Velasquez argues that he was not
aware of a claim until he was placed into deportation proceedings, but Velasquez’s
subjective awareness does not control. See Sanchez, 816 N.W.2d at 558-59. Objectively,
Velasquez should have known that he had a claim when his plea was accepted in the
absence of any warning regarding potential immigration consequences. See Minn. R.
Crim. P. 15.02, subd. 1(3) (stating that before a district court accepts a guilty plea a
defendant must indicate understanding of potential immigration consequences).
Velasquez could have supported a claim for relief after that time. The district court’s
conclusion that Velasquez’s claim arose when Padilla was decided is erroneous in light
of Sanchez and Campos, but because the actual date was even earlier, the error was
harmless.
The interests-of-justice exception to the two-year time limit is unavailable,
because more than two years has passed since Velasquez’s claim arose. His petition is
time-barred.
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Withdrawal of guilty plea
Lastly, Velasquez argues that the district court erred in concluding that his petition
was substantively without merit. “When reviewing a postconviction court’s decisions,
we examine only whether the postconviction court’s findings are supported by sufficient
evidence.” Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). A decision will be
reversed only if the court abused its discretion, but issues of law are reviewed de novo.
Id.
Following sentencing, a court must allow withdrawal of a guilty plea “upon a
timely motion and proof to the satisfaction of the court that withdrawal is necessary to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice
exists if the plea was not valid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). A
valid plea must be accurate, voluntary, and intelligent. Id. The defendant bears the
burden of showing his plea was invalid. Id. The validity of a guilty plea is a question of
law, reviewed de novo. Id.
Velasquez argues that his plea was not intelligent because he was never advised of
potential immigration consequences. Minn. R. Crim. P. 15.02, subd. 1(3), requires the
defendant to understand that “if the defendant is not a citizen of the United States, a
guilty plea may result in deportation, exclusion from admission to the United States, or
denial of naturalization.” Id. But Velasquez has not established that he was not advised
or that he did not understand the possible immigration consequences of his plea.
Velasquez has provided no affidavit saying that he was not advised, nor is there any word
from his attorney at the time. It is only Velasquez’s present attorney who has submitted
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an affidavit stating that he “believe[s] that [Velasquez] never received full and accurate
advice regarding the adverse immigration consequences [Velasquez] would face if he
pled guilty to misdemeanor domestic assault.”
Velasquez’s present attorney bases his belief on a review of two documents: the
plea petition and the transcript of the plea hearing. While these documents contain no
mention of the rule 15 immigration advisory, it is possible that Velasquez’s attorney
discussed immigration repercussions with him before entering his plea—on this record
we do not know whether he did or did not. Whether certain words were recorded is not
what matters; what matters is whether Velasquez’s plea was intelligent, and it is his
burden to show it was not.
Additionally, it is presumed that a defendant represented by counsel when entering
a plea has been advised of his rights. State v. Lorentz, 276 N.W.2d 37, 38 (Minn. 1979);
see also State v. Propotnik, 299 Minn. 56, 58, 216 N.W.2d 637, 638 (1974) (collecting
cases supporting the presumption that when a “defendant had full opportunity to consult
with his counsel before entering his plea, we may safely presume that counsel informed
him adequately concerning” a right on which he was not “specifically” questioned); cf.
State v. Lopez, 794 N.W.2d 379, 383 (Minn. App. 2011) (stating that when a defendant
has no attorney “the duty of inquiry” falls upon the district court). Velasquez cannot
overcome this presumption, because the belief of his present attorney alone, based upon a
review of two documents, fails to address whether Velasquez actually discussed potential
immigration consequences with his attorney before entering his plea.
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Finally, even assuming that Velasquez was not warned of potential immigration
consequences, the rule 15 immigration advisory concerns consequences that are the
“result” of the plea. Minn. R. Crim. P. 15.02, subd. 1(3). Velasquez’s conviction did not
result in his potential deportation. The notice of removal states that the reason for
deportation is that Velasquez is a citizen of Honduras who has never been admitted or
paroled since entry into the United States about 14 years ago. In other words, he is being
deported because he is here without permission, not because he was convicted of
domestic assault. The sole provision of law cited in Velasquez’s removal notice is INA
§ 212 (a)(6)(A)(i) (2013), entitled “Illegal entrants and immigration violators,” which
states that aliens “without admission or parole” are “inadmissible.” It is section (a)(2)
that discusses removal for aliens who commit crimes. The result of Velasquez’s
conviction is that he may not be able to avail himself of a possible ground for
cancellation of his deportation. See 8 U.S.C.A. § 1229b (b)(1)(B), (C) (2014) (providing
possible cancellation of removal if an alien is “of good moral character” and “has not
been convicted of an offense” involving moral turpitude). There is no direct relationship
between Velasquez’s conviction and his deportation proceedings.
We conclude that the district court erred with regard to the nature of Velasquez’s
submission and the date his claim arose, but correctly concluded that Velasquez’s petition
is time-barred and substantively without merit.
Affirmed.
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