                           This opinion will be unpublished and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
                                      A15-0295

                            Jaime Marquez Guevara, petitioner,
                                       Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                 Filed January 19, 2016
                                 Reversed and remanded
                                    Halbrooks, Judge


                                Nobles County District Court
                                  File No. 53-CR-12-1149

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Kathleen A. Kusz, Nobles County Attorney, Matthew Loeffler, Assistant County
Attorney, Worthington, Minnesota (for respondent)

         Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and Chutich,

Judge.

                          UNPUBLISHED OPINION

HALBROOKS, Judge

         Appellant challenges the postconviction court’s denial of his petition to withdraw

his guilty plea based on his claim of ineffective assistance of counsel. Appellant argues
that the postconviction court should have allowed him to withdraw his guilty plea

because it was involuntary due to his former attorney’s failure to properly advise him of

the immigration consequences of his guilty plea according to the standard set in Padilla

v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483 (2010). Because we conclude that

his former attorney provided ineffective assistance and that appellant was prejudiced by

the ineffective assistance, we reverse the postconviction court’s decision and remand for

withdrawal of his guilty plea.

                                         FACTS

       On November 15, 2012, appellant Jaime Guevara was arrested for an alleged

domestic assault against M.C. The state charged Guevara with misdemeanor domestic

assault under Minn. Stat. § 609.2242, subd. 1 (2012). On July 23, 2013, Guevara, who

was represented, entered into a written plea agreement to plead guilty to that charge.

       Before accepting his guilty plea, the district court asked Guevara, “Well, do you

understand this conviction could result in your deportation, denial of readmission to the

United States, or denial of naturalization?” Guevara replied, “Probably, yes.” The

district court reiterated, “Well, do you understand that’s what will happen, what could

possibly happen?” Guevara responded, “Yes, I understand that that could happen.”

       The plea petition included the following statement about possible deportation

consequences: “I understand that if I am not a citizen of the United States, my plea of

guilty to this crime may result in deportation, exclusion from admission to the United

States or denial of naturalization as a United States citizen.” The district court accepted

Guevara’s plea and sentenced him to supervised probation, with the conditions of paying


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a $582 fine, completing a domestic-violence assessment and following all

recommendations, following probationary rules, and otherwise remaining law-abiding.

       Approximately one year later, Guevara obtained new counsel and petitioned for

postconviction relief. In his petition, Guevara argued that his plea was not accurate,

voluntary, or intelligent because he received ineffective assistance of counsel.

Specifically, Guevara stated that he was not informed by his former attorney that if he

pleaded guilty to a crime involving domestic violence, his deportation would become

presumptively mandatory.       The postconviction court held an evidentiary hearing to

develop the factual basis for the petition.

       During the hearing, his former attorney testified that he uses a “canned” speech

with his clients, including Guevara, to inform them that they “could” be deported as a

result of a conviction. He indicated that the speech is based in large part on the language

from the plea petition.     He acknowledged that he did not inform Guevara that the

misdemeanor domestic-assault conviction would make deportation presumptively

mandatory.

       Guevara also testified at the hearing. He stated that he was not informed that the

conviction made deportation presumptively mandatory.          But he subsequently faced

immigration consequences as a result of his conviction. Guevara’s immigration attorney

told him that there was little that the attorney could do to help him because of the

domestic-assault conviction. Finally, Guevara testified that had he been advised of the

deportation consequences, he would not have pleaded guilty.




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       The postconviction court denied Guevara’s petition. While the postconviction

court determined that Guevara had received ineffective assistance from his trial counsel,

it concluded that Guevara had failed to demonstrate that he had been prejudiced by his

counsel’s ineffective representation. In its order, the postconviction court stated that the

federal immigration statute1 “very clearly” made a domestic-violence conviction a

“deportable offense.” Thus, “[Guevara’s former attorney] was likely obligated to inform

[Guevara] of the specific immigration consequences (i.e. deportation) related to pleading

guilty to a domestic violence crime.”

       But in addressing the second prong of an ineffective-assistance-of-counsel

analysis, the postconviction court determined that Guevara had not demonstrated that he

had been prejudiced because Guevara could be subject to immigration proceedings for “a

variety of reasons” and stated that it “[could not] base its Order in this case on

speculation.” The postconviction court noted that Guevara’s testimony indicated that he

could be facing immigration proceedings under a different statute that “does not directly

link a conviction for a particular crime with a mandatory deportation.” As a result, the

postconviction court concluded that “due to the lack of certainty and clarity about” the

consequences of his attorney’s failure to advise him about the immigration issues,

Guevara had not met his burden of proof with respect to the prejudice prong. This appeal

follows.



1
  The statute referred to is 8 U.S.C. § 1227(a)(2)(E)(i) (2012), which states, “Any alien
who at any time after admission is convicted of a crime of domestic violence, a crime of
stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.”

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                                      DECISION

       We review claims of ineffective assistance of counsel de novo. Opsahl v. State,

677 N.W.2d 414, 420 (Minn. 2004). “A defendant does not have an absolute right to

withdraw a guilty plea.” Sames v. State, 805 N.W.2d 565, 567 (Minn. App. 2011). But

the district court “must allow a defendant to withdraw a guilty plea [if] necessary to

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

exists if a guilty plea is constitutionally invalid because it is not accurate, voluntary, and

intelligent.” Sames, 805 N.W.2d at 567.

       “In order for a guilty plea to be valid, it must be made voluntarily.” State v. Ecker,

524 N.W.2d 712, 718 (Minn. 1994). Ineffective assistance of counsel renders a guilty

plea involuntary. Sames, 805 N.W.2d at 567. “When an accused is represented by

counsel, the voluntariness of the plea depends on whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases.” Ecker, 524 N.W.2d

at 718 (quotations omitted).       A two-part standard applies to Guevara’s claim of

ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984).        First, Guevara must demonstrate that his counsel’s

“representation fell below an objective standard of reasonableness.” Id. at 688, 104 S. Ct.

at 2064. Second, Guevara must show he was prejudiced by showing there exists a

“reasonable probability” that “but for the alleged errors of his counsel, he would not have

pleaded guilty.” Ecker, 524 N.W.2d at 718.

       The majority of ineffective-assistance-of-counsel claims are resolved by a

determination that the first prong of the Strickland analysis has not been satisfied. As a


                                              5
result, an analysis of the second prong is typically unnecessary. But in this case, the

postconviction court determined that the first prong was met. As a result, we examine the

record for evidence of prejudice to Guevara.

       The postconviction court denied Guevara’s petition to withdraw his plea based on

Guevara’s failure to show he was prejudiced by the advice. The postconviction court

indicated in its order that “[t]he clearest way [Guevara] could show prejudice resulting

from [the advice] would be to demonstrate that he has been or will be deported . . . due to

[the constitutionally deficient advice] regarding the [immigration consequences of his

plea].” The postconviction court stated that it was looking for a “direct causal connection

between the instant criminal conviction and deportation” to satisfy the prejudice prong of

Guevara’s ineffective-assistance-of-counsel claim.

       The proper inquiry is not whether the outcome of the trial would have been

different but for the alleged errors of counsel. See Berkow v. State, 573 N.W.2d 91, 97

(Minn. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998). The proper inquiry is whether a trial

would have occurred.     Id.   “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Ecker, 524 N.W.2d at 718 (quoting Strickland,

466 U.S. at 694, 104 S. Ct. at 2068). The supreme court has relied, at least in part, on the

defendant’s own testimony during the postconviction proceedings to make the

determination. Leake v. State, 767 N.W.2d 5, 11 (Minn. 2009).

       Thus, prejudice in this context does not refer to whether Guevara was actually

subjected to immigration proceedings as a direct consequence of his conviction. The

prejudice analysis only requires an inquiry into whether Guevara would have pleaded


                                               6
guilty had he known the conviction would make his deportation presumptively

mandatory.

       While the record is somewhat thin on the prejudice prong, we conclude that it is

sufficient to demonstrate prejudice to Guevara.       The statute clearly stated that the

domestic-violence conviction made deportation proceedings presumptively mandatory. It

is undisputed that Guevara was not properly advised of this consequence. Guevara

testified that if he had known of the significant immigration consequences, he would not

have pleaded guilty. In addition, Guevara’s immigration attorney provided an affidavit in

which he stated that Guevara was the subject of removal proceedings after the conviction.

On this record, we conclude that Guevara has demonstrated a reasonable probability that,

but for his former attorney’s deficient advice, he would not have accepted the plea.

       Reversed and remanded.




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