                        This opinion will be unpublished and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
                                   A14-1340

                     Kodjo Agbelengeor Anyide-Ocloo, petitioner,
                                    Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                 Filed July 6, 2015
                              Reversed and remanded
                                  Hooten, Judge

                            Olmsted County District Court
                              File No. 55-CR-12-1671

Eric L. Newmark, Jill A. Brisbois, Newmark Law Office, LLC, Minneapolis, Minnesota
(for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

      Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

HOOTEN, Judge

      Appellant argues that the postconviction court abused its discretion in summarily

denying his postconviction petition seeking withdrawal of his guilty plea. Appellant

contends that his guilty plea was involuntary because he had ineffective assistance of

defense counsel and misunderstood the adverse immigration consequences of his plea.

Because the postconviction court abused its discretion by denying appellant’s petition

without holding an evidentiary hearing, we reverse and remand.

                                        FACTS

      On March 13, 2012, appellant Kodjo Agbelengeor Anyide-Ocloo was charged

with fifth-degree possession of a controlled substance under Minn. Stat. § 152.025, subd.

2(a)(1) (2010). According to the complaint, Rochester police conducted a controlled

purchase of crack cocaine using an informant on February 7, 2012. In connection with

information obtained from the informant and police observation, officers traced the sale

to someone in appellant’s vehicle. Officers stopped the vehicle and, upon searching

appellant’s person, discovered loose pills in his pocket, one of which was identified as

clonazepam, a controlled substance.

      Respondent State of Minnesota and appellant reached a plea bargain in which

appellant agreed to plead guilty in exchange for the state’s recommendation that appellant

be given the presumptive sentence under the sentencing guidelines, including a stay of

adjudication if appellant was eligible for such disposition. At the plea hearing on April

19, 2012, appellant admitted that he was in possession of the clonazepam pill on the date


                                            2
of the offense. He explained that he worked as a nursing home caregiver who often

dispensed medication to patients and that he had found the clonazepam pill, along with

other medications, while cleaning at work. He claimed that he had intended to inform his

supervisor about the pills that he had found, but failed to do so before he was pulled over

by police the next day. Appellant further stated that he had no involvement with the

controlled drug purchase the police were investigating, and that he was merely giving a

ride to friends when his vehicle was pulled over and he was searched by police.

      Appellant first discussed his immigration status with the district court:

              THE COURT: Are you a United States citizen?
              APPELLANT: No, your Honor.
              THE COURT: All right. I will have [defense counsel] and
              [the prosecutor] inquire a little further about that, but as I
              understand it, this is a recommended 152.18 disposition, so I
              don’t know if that brings immigration into play or not. I
              don’t know if you need a conviction or just a guilty plea.
              Does anyone know the answer to that?
              DEFENSE COUNSEL: What I have been advising my client
              is that . . . I’m not an immigration lawyer, but any time
              someone enters a plea of guilty, they should be [wary] of any
              effects that might have on his immigration status. My client is
              aware that it could potentially affect his status, but he is
              willing to go through with the plea no matter what.
              THE COURT: And that’s correct then; is that right?
              APPELLANT: Yes, your Honor.

(Emphasis added.) After appellant then established the above factual basis of his plea

with his counsel, he was examined by the prosecutor:

              PROSECUTOR: And it has been mentioned here that you are
              not a citizen of the United States, correct?
              APPELLANT: Yes.
              PROSECUTOR: What is your immigration status?
              APPELLANT: I’m a permanent resident.



                                            3
             PROSECUTOR: And have you investigated what the possible
             consequences of what a conviction in this matter might be?
             APPELLANT: Yes.
             PROSECUTOR: What have you learned?
             APPELLANT: I could be denied for citizenship.
             PROSECUTOR: Is that all?
             APPELLANT: Yes.
             PROSECUTOR: Are you satisfied that you’re informed about
             the possible consequences of a conviction in this matter on
             your immigration status?
             APPELLANT: Yes.
             PROSECUTOR: And knowing what you know, do you still
             wish to proceed with a guilty plea today?
             APPELLANT: Yes.

(Emphasis added.) In addition, appellant signed a plea petition form dated the same day

as the plea hearing. Upon questioning by the district court, appellant acknowledged that

he had signed the plea petition form, reviewed each paragraph with his attorney, and

understood each numbered paragraph to the best of his ability. Paragraph 27 of the plea

petition provided:

             My attorney has told me and I understand that if I am not a
             citizen of the United States[,] this plea of guilty may result in
             deportation, exclusion from admission to the United States of
             America or denial of citizenship.

      The district court accepted appellant’s guilty plea and at sentencing granted

appellant a stay of adjudication under Minn. Stat. § 152.18, subd. 1 (2010). Accordingly,

there was no conviction entered against appellant, and he was sentenced to five years’

probation, 100 hours of community service, and a small fine.

      On March 27, 2014, appellant filed a petition for postconviction relief seeking

withdrawal of his guilty plea, alleging that, under Padilla v. Kentucky, 130 S. Ct. 1473

(2010), he received ineffective assistance of counsel when his trial attorney failed to


                                            4
inform him that deportation was a consequence of his guilty plea. The postconviction

court summarily denied appellant’s postconviction petition, concluding that appellant had

failed to present sufficient evidence to warrant an evidentiary hearing and that the record

conclusively showed that he was not entitled to postconviction relief.        This appeal

followed.

                                     DECISION

       Appellant contends that he is entitled to withdrawal of his guilty plea because his

attorney failed to adequately inform him of the immigration consequences of his plea.

After sentencing, a motion to withdraw a plea must be raised in a postconviction petition

under chapter 590. James v. State, 699 N.W.2d 723, 727 (Minn. 2005); see Minn. Stat.

§ 590.01 (2014). A defendant may withdraw a guilty plea at any time if “withdrawal is

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

injustice exists if a guilty plea is not valid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn.

2010). “To be constitutionally valid, a guilty plea must be accurate, voluntary, and

intelligent.” Id. Ineffective assistance of counsel renders the plea involuntary and thus

constitutionally invalid. Butala v. State, 664 N.W.2d 333, 341 (Minn. 2003); see also

Hill v. Lockhart, 474 U.S. 52, 56–57, 106 S. Ct. 366, 369 (1985).

       Claims of ineffective assistance of counsel are analyzed under the two-pronged

analysis from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

State v. Bobo, 770 N.W.2d 129, 137 (Minn. 2009). First, the defendant must show that

his or her counsel’s representation fell below an objective standard of reasonableness. Id.

On review, “[t]here is a strong presumption that counsel’s performance was reasonable.”


                                            5
Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006) (quotation omitted). Second, the

defendant must show that “a reasonable probability exists that the outcome would have

been different but for counsel’s errors.” Bobo, 770 N.W.2d at 137 (quotation omitted).

       The postconviction court did not hold an evidentiary hearing because it

determined that the record conclusively showed that appellant had not proven his

ineffective-assistance claim. Postconviction courts are required to hold an evidentiary

hearing on a postconviction petition “[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 (2014); see also Minn. Stat. § 590.03 (2014) (“The court shall liberally

construe the petition and any amendments thereto . . . .”). A petitioner asserting an

ineffective-assistance-of-counsel claim should be granted an evidentiary hearing if he or

she has “allege[d] facts that, if proven by a fair preponderance of the evidence, would

satisfy the two-prong test” under Strickland. Bobo v. State, 820 N.W.2d 511, 516 (Minn.

2012). “We review the denial of a postconviction evidentiary hearing for an abuse of

discretion,” Hooper v. State, 838 N.W.2d 775, 786 (Minn. 2013), but resolve any doubts

about whether to conduct an evidentiary hearing in favor of the petitioner, State v. Nicks,

831 N.W.2d 493, 504 (Minn. 2013). If, when viewing the petitioner’s allegations in the

light most favorable to him or her and considering the “files and records of the

proceeding, including the [s]tate’s arguments,” there are material facts in dispute which

must be resolved to determine the issues on the merits, the postconviction court has

abused its discretion by not holding an evidentiary hearing.         Id. at 506 (quotation

omitted).


                                             6
                                             I.

       Appellant first argues that the postconviction court erred by determining that the

record of the plea hearing and plea petition established that he was adequately informed

of adverse immigration consequences by his attorney. In Padilla, the Supreme Court

held that the Sixth Amendment requires that defense counsel provide legal advice

regarding the immigration consequences of a defendant’s guilty plea. 130 S. Ct. at 1482,

1486. The advice that counsel must provide varies depending on the immigration statute

applicable to the guilty plea in question. Id. at 1483 (“Immigration law can be complex,

and it is a legal specialty of its own.”). When applicable immigration law “is not succinct

and straightforward,” the required duty is “more limited” and the attorney need not do

more than advise the client that the guilty plea “may carry a risk of adverse immigration

consequences.” Id. But, when the deportation consequence is “truly clear” because “the

terms of the relevant immigration statute are succinct, clear, and explicit,” then “the duty

to give correct advice is equally clear.” Id. at 1483. In Padilla, the Court found the

performance of Padilla’s counsel to be constitutionally deficient because he had

incorrectly assured his client that conviction would not result in deportation, when the

applicable immigration statute clearly indicated otherwise. Id. at 1483 (citing 8 U.S.C.

§ 1227(a)(2)(B)(i) (2006)).

       Appellant argues that the postconviction court erred by failing to consider whether

the applicable immigration statutes were “truly clear,” thus giving rise to the “equally

clear” duty of his defense attorney to provide correct advice. See id. at 1483. However,




                                             7
we need not resolve this issue,1 because the record does not conclusively negate, and in

fact supports, appellant’s claim that he was not adequately informed that deportation was

even a potential consequence of his decision to plead guilty, much less a near-certain one.

       At the plea hearing, appellant’s counsel initially informed the district court that

appellant was “aware” that this conviction “could potentially affect his status,” but

mentioned nothing of deportation consequences specifically. Later, appellant was asked

by the prosecutor whether he had investigated the consequences of his plea upon his

citizenship and immigration status. He answered in the affirmative. When questioned as

to what those “possible consequences” were, appellant responded that he learned that he

“could be denied for citizenship” but understood that there were no other consequences.

There is no indication in the record that defense counsel, the prosecutor, or the district

court intervened at this point to ensure that appellant understood that deportation was also

a “possible consequence[]” of his plea. There is also nothing in the record regarding the

nature of appellant’s investigation of the possible consequences of the plea and whether it

was his defense attorney or another attorney who provided him with the misinformation

regarding those consequences.




1
  We note, however, that appellant has been rendered deportable by virtue of the exact
statute found by the Court to be “succinct, clear, and explicit in defining the removal
consequences” for the defendant in Padilla. 130 S. Ct. at 1483; see 8 U.S.C.
§ 1227(a)(2)(B)(i) (2012); cf. Padilla, 130 S. Ct. at 1477 n.1 (noting that “virtually every
drug offense except for only the most insignificant marijuana offenses[] is a deportable
offense” under this statute). Moreover, immigration statutes are similarly clear that a
guilty plea accompanied by “some form of punishment” constitutes a “conviction” for
immigration purposes. 8 U.S.C. § 1101(a)(48)(A) (2012).

                                             8
       At a minimum, the record demonstrates that appellant misunderstood the possible

consequences of his plea upon his immigration status and that his defense counsel failed

to intervene to correct such misunderstanding. Admittedly, defense counsel’s failure to

correct appellant’s misunderstanding is arguably less egregious than the attorney’s

misstatement of the law in Padilla in providing Padilla “false assurance that his

conviction would not result in his removal from this country.” Id. at 1483. But, here,

counsel’s failure to correct appellant’s mistaken understanding that denial of citizenship

was the only potential immigration consequence of his plea could be a substantially

equivalent violation of appellant’s Sixth Amendment right to effective counsel.

       As this appeal only presents the issue of whether appellant was entitled to an

evidentiary hearing, “we need not determine whether his counsel actually fell below the

objective standard required by Strickland” and instead “merely need to decide whether

[appellant’s] allegations and the files and records fail to conclusively show that counsel

fell below this standard.” See Nicks, 831 N.W.2d at 508. Taking appellant’s allegations

in the light most favorable to him and considering the record before us, appellant has

raised an issue of material fact as to the immigration advice provided to him by his

attorney such that he could satisfy the first prong of the Strickland test if his allegations

are proven. The postconviction court therefore abused its discretion by determining that

appellant was not entitled to an evidentiary hearing on this issue.

                                             II.

       Appellant further argues that the postconviction court abused its discretion by

concluding that he had not shown prejudice under the second prong of Strickland. When


                                             9
a defendant seeks to withdraw a guilty plea by asserting that his or her counsel provided

ineffective assistance, the defendant has the burden of proving prejudice by showing

“that there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct.

at 370; Campos v. State, 816 N.W.2d 480, 486 (Minn. 2012); see also Padilla, 130 S. Ct.

at 1485 (“[A] petitioner must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.”). “[T]he question [of] whether a

given defendant has made the requisite showing will turn on the facts of a particular

case.” Roe v. Flores-Ortega, 528 U.S. 470, 485, 120 S. Ct. 1029, 1039 (2000).

       Postconviction petitions must contain a “statement of the facts and the grounds

upon which the petition is based and the relief desired.” Minn. Stat. § 590.02, subd. 1(1)

(2014).   In his petition, appellant asserted that had he been fully advised of the

immigration consequences of his plea, he would have proceeded to trial, “as an acquittal

would have been the only result which would have ensured he would not be removed.”

The postconviction court concluded that appellant had failed to allege sufficient facts

showing prejudice because his decision to accept a stay of adjudication “with no jail

consequence[] was not irrational . . . based upon the evidence [that] there was a strong

likelihood of conviction which would not have improved his chance of remaining in the

United States.” But, the relevant inquiry here is not whether appellant’s guilty plea was

rational based solely on the likelihood of conviction, but whether a rejection of that plea

would have been rational given both the circumstances of the case and the assumption




                                            10
that appellant’s attorney had sufficiently ensured that appellant understood that

deportation was a possible consequence of his plea. See Padilla, 130 S. Ct. at 1485.

       Viewing appellant’s allegations in the light most favorable to him, it is possible

that if he had been properly apprised that he would become deportable as the result of his

plea, he would have had ample incentive to proceed to trial and virtually no incentive to

plead guilty. While appellant makes no arguments regarding the likelihood of conviction,

at the very least he would have had a chance, however slim, to avoid deportation by

taking his case to trial and seeking acquittal. By pleading guilty, appellant effectively

conceded any chance to remain in the country.

       Moreover, the only benefit appellant obtained by pleading guilty was the state’s

recommendation that appellant receive the presumptive sentence under the Minnesota

sentencing guidelines, including a recommendation for a section 152.18 disposition if he

was eligible. If appellant had proceeded to trial and had been found guilty, he still might

have received a stay of adjudication unless the district court decided to upwardly depart

from the guidelines. See State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (noting that

“[a] sentencing court ‘must pronounce a sentence within the applicable range unless there

exist identifiable, substantial, and compelling circumstances’” justifying a departure from

the presumptive range (quoting Minn. Sent. Guidelines 2.D.1)).                With these

considerations in mind, appellant’s rejection of the plea bargain offer, if he had received

and understood accurate advice from his attorney, could have been a rational choice

under the circumstances.




                                            11
      In order for the postconviction court to deny appellant his right to evidentiary

hearing, “the petition and the files and records of the proceeding” must “conclusively

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

added). In his petition, appellant claimed that he would not have pleaded guilty had he

been advised by his counsel of the possible immigration consequences of his conviction.

He was entitled to an attempt to prove this claim by testifying at an evidentiary hearing.

We conclude that the postconviction court abused its discretion by holding that appellant

was conclusively entitled to no relief, and reverse and remand in order for an evidentiary

hearing to be held by the postconviction court.

      Reversed and remanded.




                                            12
