                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1769

                             Wayne Deante Akis, petitioner,
                                     Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed June 13, 2016
                                       Affirmed
                                     Jesson, Judge

                              Ramsey County District Court
                                File No. 62-CR-11-9056

Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant
Attorney General, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

         Considered and decided by Hooten, Presiding Judge; Jesson, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         Appellant Wayne Akis challenges the summary denial of his petition for

postconviction relief, arguing (1) that he should be permitted to withdraw his guilty plea
based on newly discovered evidence, a Brady violation, a due-process violation, a manifest

injustice, and ineffective assistance of counsel; and (2) that he is entitled to an evidentiary

hearing. We affirm.

                                           FACTS

       In November 2011, Akis was charged with fifth-degree controlled-substance crime.

The complaint alleged that on October 12, 2011, police observed Akis and several other

individuals in a parked car, hunched over, and looking down at something. As officers

approached, they saw Akis holding a package containing suspected crack cocaine. When

Akis saw the officers approaching, he threw the package in the backseat of the car. Police

recovered the package and interviewed Akis. He admitted that he knew drugs were in the

car and told police that they were for his father, who smokes crack cocaine. The substance

in the package was later examined at the St. Paul Police Department Crime Laboratory

(SPPDCL) where it tested positive for cocaine.

       As part of a global settlement agreement involving another file, Akis pleaded guilty

to the charged offense on July 2, 2012. At his plea hearing, Akis admitted to possessing

cocaine. He agreed that the substance in his possession tested positive for cocaine and that

he had no reason to dispute the validity of that test. On September 13, 2012, Akis was

sentenced to 17 months in prison, which was stayed for three years. Akis was represented

by counsel at his plea and sentencing hearings.

       In mid-July 2012, the SPPDCL came under public scrutiny and was the subject of a

hearing in an unrelated Dakota County district court case. Independent reviews indicated

significant problems in the laboratory protocols and testing procedures at the SPPDCL. In


                                              2
light of these problems, Akis filed a postconviction petition on September 15, 2014,1

arguing that he should be allowed to withdraw his guilty plea or be granted an evidentiary

hearing because (1) the deficient SPPDCL testing is newly discovered evidence; (2) the

state violated Brady v. Maryland, 373 U.S. 220, 83 S. Ct. 1194 (1963), by not disclosing

the deficient testing; (3) the state violated Akis’s due-process rights by using unreliable

scientific evidence to obtain his guilty plea; (4) Akis’s guilty plea was not accurate,

voluntary, or intelligent; and (5) he received ineffective assistance of counsel. The district

court denied Akis’s petition without a hearing. This appeal follows.

                                      DECISION

                                              I.

       We review a summary denial of a petition for postconviction relief for an abuse of

discretion. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). The postconviction court

abuses its discretion when its decision is based on an erroneous application of the law or is

against logic and the facts of the case. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013)

(quotation omitted).

       Akis challenges the summary denial of his postconviction petition, arguing that, in

light of the deficiencies at the SPPDCL, the postconviction court abused its discretion by

denying his motion to withdraw his guilty plea. We disagree. “A guilty plea by a counseled


1
  A postconviction petition is time barred if brought more than two years after sentencing
and no direct appeal was filed. Minn. Stat. § 590.01, subd. 4(a)(1) (2014). Akis’s petition
was timely. If the two-year period expires on a weekend or holiday, the time is extended
to the next day that is not a weekend or a holiday. Rickert v. State, 795 N.W.2d 236, 240
n.1 (Minn. 2011). The two-year period ended on September 13, 2014, but that day fell on
a Saturday. Akis filed his petition on September 15, the following Monday.

                                              3
defendant has traditionally operated . . . as a waiver of all non-jurisdictional defects arising

prior to the entry of the plea.” State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986). Because

Akis had counsel and entered a guilty plea, all non-jurisdictional arguments raised in his

postconviction petition were waived. The only substantive arguments raised by Akis that

were not waived by his guilty plea consist of his manifest-injustice and ineffective-

assistance-of-counsel claims. We address each claim in turn.

   A. Manifest Injustice

       A court must allow a defendant to withdraw his guilty plea when “necessary to

correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs

and a guilty plea is invalid if it is not accurate, voluntary, and intelligent. Perkins v. State,

559 N.W.2d 678, 688 (Minn. 1997). Akis argues that his plea was not accurate, voluntary,

or intelligent. We disagree.

       1. Accurate

       For a guilty plea to be accurate, a proper factual basis must be established. State v.

Ecker, 524 N.W.2d 712, 716 (Minn. 1994). There must be sufficient facts on the record to

support each element of the charged offense. State v. Iverson, 664 N.W.2d 346, 349-50

(Minn. 2003).     Typically, the factual basis is established by the defendant’s sworn

admission to the conduct constituting the offense. Ecker, 524 N.W.2d at 716.

       Akis claims that his plea is inaccurate because the record does not contain “reliable,

scientific evidence” identifying the substance in his possession as cocaine. He argues that

his belief that the substance was cocaine is not sufficient to prove the identity of the

substance.   In support of these arguments, Akis cites to cases where the defendant


                                               4
challenged the identity of the controlled substance at trial. These cases are inapplicable.

Akis entered a sworn guilty plea during which he admitted to possessing cocaine.

Furthermore, Akis’s plea was not solely based on his belief that the substance was cocaine.

The substance tested positive for cocaine, and Akis admitted at his plea hearing that he had

no reason to dispute the results of the positive test. Akis also explicitly waived the right to

challenge the state’s evidence in his plea petition. Akis signed this plea petition and

testified at his plea hearing that he and his attorney reviewed every question on the plea

petition together. These facts are sufficient to meet the accuracy requirement.

       2. Voluntary

       The voluntariness requirement ensures that “a defendant is not pleading guilty due

to improper pressure or coercion.” State v. Raleigh, 778 N.W.2d 90, 96 (Minn. 2010).

Akis claims that his plea was involuntary because the SPPDCL test results created an

“improper pressure.”     But if Akis believed the test was erroneous, he could have

investigated the results and challenged the test at or before trial. He chose not to do so.

Moreover, Akis’s signed plea petition states that no one made any threats or promises,

other than those contained in the plea agreement, in order to obtain his guilty plea. Akis

received a favorable plea deal. The state agreed to dismiss a more serious third-degree

controlled-substance charge and agreed to a downward dispositional departure on a gun

charge should Akis be found guilty of that charge in a stipulated-facts trial. Akis stated at

his plea hearing that he was choosing to plead guilty in order to take advantage of this

agreement. Akis cannot demonstrate that he was improperly pressured or coerced into

pleading guilty.


                                              5
       3. Intelligent

       A plea is intelligent if the defendant understands “the charges against him, the rights

he is waiving, and the consequences of his plea.” Id. at 96. Akis argues that his plea was

not intelligent because he was unaware of the issues at the SPPDCL and did not adequately

understand his right to challenge the test results or that he was waiving that right. But at

his plea hearing, Akis acknowledged the charges against him and that he was pleading

guilty to fifth-degree possession of a controlled substance arising from the October 12,

2011 incident. He also agreed that he had no reason to contest the SPPDCL crime lab

results. Furthermore, as stated above, in his plea petition, Akis acknowledged his right to

challenge the state’s evidence and acknowledged that by pleading guilty he would be

waiving that right along with his other trial rights. The plea petition also lists the maximum

term of imprisonment that may be imposed for a fifth-degree controlled-substance offense

and states the terms of Akis’s plea agreement. The terms of the plea agreement were also

explained to Akis on the record at the plea hearing. The record shows that Akis understood

the charge against him, the rights he was waiving, and the consequences of his plea.

       Akis’s plea was accurate, voluntary, and intelligent. His plea is valid and he is not

entitled to withdraw it.

   B. Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, Akis must demonstrate

“(1) that his counsel’s representation fell below an objective standard of reasonableness;

and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Nissalke v. State, 861 N.W.2d 88, 94


                                              6
(Minn. 2015) (quotation omitted). An attorney provides objectively reasonable assistance

when the attorney exercises the customary skills and diligence that a reasonably competent

attorney would exercise under the circumstances. Dukes v. State, 621 N.W.2d 246, 252

(Minn. 2001). A reviewing court need not address both prongs of this test if one is

dispositive. Hawes v. State, 826 N.W.2d 775, 783 (Minn. 2013). Because Akis has failed

to demonstrate that his counsel’s representation fell below an objective standard of

reasonableness, we address only the first prong.

       Akis argues that his “attorney did not act reasonably in light of all the circumstances

because the attorney did not demand and review the underlying [SPPDCL] file in his case.”

But this court rejected an identical argument in Roberts v. State, 856 N.W.2d 287, 293

(Minn. App. 2014), review denied (Minn. Jan. 28, 2015). As in Roberts, there is nothing

in the record indicating that Akis’s attorney failed to advise Akis of the option to challenge

the state’s evidence, refused Akis’s request to challenge the test results, or advised Akis

not to challenge the test results. See id. Akis also has failed to cite any evidence that would

have given his attorney a reason to believe that the substance he possessed was not cocaine.

Akis not only admitted at his plea hearing that he possessed cocaine, but the complaint

indicates that Akis told police that he knew the drugs were in the car and that they were for

his father who smokes crack cocaine.

       Moreover, Akis’s attorney did make at least a pro forma request for “[n]otice of,

and permission to inspect and reproduce any results or reports of . . . scientific tests,

experiments or comparisons . . . together with the original notes of the persons who

conducted said examinations, tests, experiments, or comparisons.” Even if the attorney


                                              7
had not requested this information or did not actually review the SPPDCL file, the

reasonableness of counsel’s conduct is judged in view of the facts at the time of the

conduct. State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014). Akis has not shown that a

reasonably competent defense attorney exercising customary skills and diligence would

have demanded and reviewed the SPPDCL file prior to the discovery of any issues with

the SPPDCL’s drug testing.

       Finally, Akis’s claim that his trial counsel was ineffective for failing to investigate

the test results is considered a part of trial strategy, which this court generally does not

review. See Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004). Akis cites to State v.

Nicks for the proposition that his attorney’s failure to challenge the test results is not

unreviewable trial strategy. 831 N.W.2d at 493. But in Nicks, our supreme court

determined that a defense attorney was ineffective where the attorney pursued an initial

defense strategy but then inexplicably abandoned that strategy. Id. at 506-07. It does not

appear that Akis’s attorney ever focused his efforts on discrediting the test results. Instead,

in light of the facts, including Akis’s admission to police that he knew cocaine was in the

car, Akis’s attorney made a reasonable decision to advise his client to accept a favorable

plea offer from the state. Akis is unable to establish that he was denied the effective

assistance of counsel.

                                              II.

       When a petition for postconviction relief is filed, the district court must promptly

set an evidentiary hearing, “[u]nless the petition and the files and records of the proceeding

conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1


                                              8
(2014). The district court’s decision on whether to hold an evidentiary hearing is reviewed

for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).

       Akis contends that the district court abused its discretion by denying his

postconviction petition without an evidentiary hearing.        He claims that, if given an

evidentiary hearing, he would present evidence that the criminalist in his case committed

errors, that the SPPDCL test results were not admissible, and that if he had known of the

SPPDCL deficiencies, he would not have pleaded guilty. But Akis had his chance to

challenge the test results. Instead, he chose to accept the state’s favorable plea offer and

admit to possessing cocaine. He waived his right to challenge the state’s evidence and

never claimed that the substance he possessed was not cocaine. Akis cannot demonstrate

that the district court abused its discretion by denying his motion for an evidentiary hearing.

       Affirmed.




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