                        This opinion will be unpublished and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
                                   A15-2005

                      Christopher Joseph Washington, petitioner,
                                      Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                 Filed June 13, 2016
                                      Affirmed
                                     Kirk, Judge

                            Ramsey County District Court
                              File No. 62-CR-11-8700

Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant
Public Defender, 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 Larkin, Presiding Judge; Kirk, Judge; and Toussaint,

Judge.




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                         UNPUBLISHED OPINION

KIRK, Judge

       Appellant challenges the denial of his petition for postconviction relief, arguing

that he should be allowed to withdraw his guilty plea to fifth-degree possession of a

controlled substance because of testing deficiencies discovered at the St. Paul Police

Department Crime Lab. Because his petition was untimely, we affirm.

                                           FACTS

       On October 27, 2011, appellant Christopher Joseph Washington was charged with

fifth-degree possession of a controlled substance. On April 30, a vehicle appellant was

driving was the subject of a traffic stop, and appellant admitted to a Minnesota state

trooper that cocaine found in his passenger’s purse was his and that he had placed it in

her purse without her knowledge.

       On April 23, 2012, appellant appeared with his attorney for a plea hearing.

Appellant signed a plea petition acknowledging that he was represented by an attorney,

had sufficient time to discuss his case and any possible defenses with his attorney, and

was satisfied that his attorney had represented his interests and fully advised him.

Appellant also waived his trial rights. Appellant’s attorney questioned him about his

understanding of the plea petition, and appellant agreed that they had reviewed the

petition together. Appellant stated that he was feeling okay and knew what he was doing

by pleading guilty. Appellant also stated that he understood the plea agreement and the

rights that he was giving up by pleading guilty. Appellant verbally waived his right to a

jury trial. The district court accepted appellant’s plea petition into the record.


                                              2
       Appellant provided a factual basis for his guilty plea. He admitted that, on April

30, 2011, he was driving a vehicle that was the subject of a traffic stop. He admitted that

he placed cocaine in his passenger’s purse and that law enforcement found the cocaine

during the traffic stop. Appellant admitted that the cocaine belonged to him. He also

testified that he had seen the St. Paul Police Department Crime Lab (SPPDCL) report and

that the SPPDCL had tested the substance found in the purse and verified it to be .26

grams of cocaine.

       On June 13, 2012, the district court sentenced appellant to a five-year stayed

sentence of one year and one day. On August 4, 2014, upon appellant’s request, the

district court executed his sentence.

       On July 17, 2014, appellant petitioned for postconviction relief, asking to

withdraw his guilty plea because of the widespread evidence-testing problems at the

SPPDCL identified in State v. Jensen, No. 19HA-CR-09-3463 (Minn. Dist. Ct. July 16,

2012). Appellant argued that his petition was not time-barred and that he was entitled to

postconviction relief on the grounds of newly discovered evidence, the interests of

justice, a Brady violation, a due-process violation, manifest injustice, and ineffective

assistance of counsel. On December 8, 2015, the postconviction court denied his petition

without an evidentiary hearing.

       This appeal follows.




                                            3
                                     DECISION

I.     Appellant’s petition for postconviction relief does not satisfy the newly-
       discovered-evidence or interests-of-justice exceptions to the two-year time
       limit in Minn. § 590.01 (2014).

       “We review a denial of a petition for postconviction relief, as well as a request for

an evidentiary hearing, for an abuse of discretion.” Riley v. State, 819 N.W.2d 162, 167

(Minn. 2012). “A postconviction court abuses its discretion when its decision is based on

an erroneous view of the law or is against logic and the facts in the record.” State v.

Nicks, 831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted). We review legal issues

de novo, but on factual issues our review “is limited to whether there is sufficient

evidence in the record to sustain the postconviction court’s findings.” Matakis v. State,

862 N.W.2d 33, 36 (Minn. 2015) (quoting Vance v. State, 752 N.W.2d 509, 512 (Minn.

2008)).

       An individual who is convicted of a crime and claims that the conviction was

obtained in violation of the individual’s constitutional rights may file a petition for

postconviction relief.    Minn. Stat. § 590.01, subd. 1 (2014).           “No petition for

postconviction relief may be filed more than two years after the later of: (1) the entry of

judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court’s

disposition of petitioner’s direct appeal.” Id., subd. 4(a) (2014). Minn. Stat. § 590.01,

subd. 4(b) (2014), provides for a number of exceptions to the two-year deadline,

including “the existence of newly discovered evidence” or if the petition “is in the

interests of justice.” Id., subd. 4(b)(2) & (5). A petition invoking one of these exceptions

must be filed within two years of the date that the claim arises. Id., subd. 4(c) (2014).


                                              4
       Appellant argues that his petition was timely because he did not know about the

problems at the SPPDCL until July of 2012 when the testing issues became public.

However, appellant ignores the fact that he could have challenged the foundational

reliability of the test results and obtained the information himself prior to pleading guilty.

Roberts v. State, 856 N.W.2d 287, 291 (Minn. App. 2014), review denied (Minn. Jan. 28,

2015). Appellant filed his postconviction petition after the two-year time limit expired.

       Appellant next argues that the newly-discovered-evidence and interests-of-justice

exceptions to the two-year time limit apply in his case.

       A.     Newly-discovered-evidence exception

       To satisfy the newly-discovered-evidence exception to the postconviction time

limit, appellant’s postconviction petition must allege that: (1) newly discovered evidence

exists; (2) the evidence “could not have been ascertained by the exercise of due diligence

within the two-year time period for filing a postconviction petition”; (3) the evidence is

not cumulative; (4) the evidence is not for impeachment purposes; and (5) the evidence

“establishes a clear and convincing standard that the petitioner is innocent of the offense

. . . for which the petitioner was convicted.” Id. at 290 (quotation omitted) (citing Minn.

Stat. § 590.01, subd. 4(b)(2) (2012)). All five elements must be established in order to

obtain relief. Id.

       Appellant asserts that the testing deficiencies that were discovered at the SPPDCL

in 2012 constitute new evidence. But in Roberts, we addressed this argument and held

that the newly-discovered-evidence exception did not apply where the petitioner failed to




                                              5
demonstrate that the testing deficiencies at SPPDCL could not have been discovered

through the exercise of due diligence. Id. at 291.

       Also, any evidence of the SPPDCL’s testing deficiencies would only constitute

impeaching evidence. “We will not grant a new trial on the basis of evidence that is

merely impeaching.” Pippitt v. State, 737 N.W.2d 221, 228 (Minn. 2007). Because

appellant fails to present any evidence that the SPPDCL’s testing deficiencies affected his

particular case, evidence regarding SPPDCL’s problems would only be used to impeach a

lab analyst on cross-examination, rather than to preclude the evidence in his case from

being admitted. See e.g., Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819,

824-25 (Minn. 2000) (holding that alleged deficiencies in expert witness’s procedures

“went to the weight, rather than the admissibility of his testimony”).

       Appellant also fails to establish through clear and convincing evidence that he was

in fact innocent.    Roberts, 856 N.W.2d at 291-92 (holding that Roberts did not

demonstrate by clear and convincing evidence that he is innocent of the convicted offense

because he did not offer evidence of the chemical composition of the substance and did

not even allege that the substance was not cocaine). As in Roberts, appellant never

challenged the identity of the substance which he claimed ownership of on the day of his

arrest, nor did he ever claim that the substance was not cocaine. At the plea hearing, he

stated that the substance found in his passenger’s purse was cocaine and that it belonged

to him. Appellant makes no specific allegations concerning the testing by the SPPDCL

in his particular case, and by pleading guilty, he relinquished his right to challenge the

state’s evidence.


                                             6
       Here, appellant fails to meet his burden of demonstrating that the SPPDCL testing

deficiencies satisfy the newly-discovered-evidence exception under Roberts and Minn.

Stat. § 590.01, subd. 4(b)(2). The district court did not abuse its discretion by concluding

that this exception was not applicable to appellant’s case.

       B.     The interests-of-justice exception

       “[A] court may hear an untimely petition for postconviction relief if ‘the petitioner

establishes to the satisfaction of the court that the petition is not frivolous and is in the

interests of justice.’” Roberts, 856 N.W.2d at 292 (quoting Minn. Stat. § 590.01, subd.

4(b)(5) (2012)). This exception only applies to exceptional cases. Id. To qualify for the

interests-of-justice exception, “a claim must have substantive merit and the [petitioner]

must not have deliberately and inexcusably failed to raise the issue on direct appeal.” Id.

(quotation omitted). The district court also weighs a number of factors, including the

degree to which each party is at fault for the alleged error, whether it needs to address

fundamental unfairness to the defendant, and if it is necessary to act to protect the

integrity of judicial proceedings.1 Id.

       Appellant argues that his postconviction petition has merit based on newly

discovered evidence, a Brady violation, a due-process violation, manifest injustice, and

ineffective assistance of counsel.        Appellant’s first three arguments fail because a

counseled guilty plea “has traditionally operated, in Minnesota and in other jurisdictions,

as a waiver of all non-jurisdictional defects arising prior to the entry of the plea.” State v.


1
 This list of factors is non-exclusive. Gassler v. State, 787 N.W.2d 575, 586 (Minn.
2010).

                                               7
Ford, 397 N.W.2d 875, 878 (Minn. 1986) (citing State v. Lothenbach, 296 N.W.2d 854,

857 (Minn. 1980)).

       Here, appellant pleaded guilty to fifth-degree possession of a controlled substance.

He was represented by counsel and signed a plea petition acknowledging that he had the

opportunity to discuss his defenses with his attorney, was giving up the right to challenge

the state’s evidence, and was not making a claim of innocence. By entering a counseled

guilty plea, appellant waived his evidentiary and procedural challenges. State v. Ford,

397 N.W.2d 875, 878 (Minn. 1986). We now address appellant’s remaining arguments,

whether he is entitled to withdraw his guilty plea on the grounds of manifest injustice and

ineffective assistance of counsel.

              i.     Manifest injustice

       The validity of a guilty plea is a question of law, which this court reviews de novo.

State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Minn. R. Crim. P. 15.05, subd. 1,

states in relevant part that “the court must allow a defendant to withdraw a plea of guilty

upon a timely motion and proof to the satisfaction of the court that withdrawal is

necessary to correct a manifest injustice.” A guilty plea is invalid and manifestly unjust

if it is not accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 93-94.

       A proper factual basis must be established in order for a guilty plea to be accurate.

State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Appellant argues that his guilty plea

is not accurate because the statements supporting the factual basis of his guilty plea were

based on an unreliable SPPDCL laboratory report. Here, the record shows that appellant

pleaded guilty to fifth-degree possession of a controlled substance. He admitted that the


                                             8
substance was cocaine and, by signing the plea petition, acknowledged that he was not

making a claim of innocence.        These facts, acknowledged by appellant at his plea

hearing, satisfy the accuracy requirement.

       “Whether a plea is voluntary is determined by considering all relevant

circumstances.” Raleigh, 778 N.W.2d at 96. “The voluntariness requirement ensures a

defendant is not pleading guilty due to improper pressure or coercion. Id. Appellant

argues that his guilty plea was involuntary. He asserts that, “[i]n light of what we now

know about the [SPPDCL], that it was not credible, it was not scientific, and it was not

operating as a lab, [there] was an improper pressure to induce [a]ppellant to plead guilty.”

       At the plea hearing, appellant acknowledged that he had reviewed the SPPDCL

report and that he did not dispute that the SPPDCL determined that the substance found

in his passenger’s purse was .26 grams of cocaine. He did not ask to review additional

SPPDCL records, did not challenge the admissibility of the SPPDCL lab report, and did

not dispute that the substance was cocaine.        Under these facts, appellant was not

improperly pressured or coerced to plead guilty.

       “The intelligence requirement ensures that a defendant understands the charges

against him, the rights he is waiving, and the consequences of his plea.” Raleigh, 778

N.W.2d at 96. Appellant argues that when he pleaded guilty, he was unaware of the

testing deficiencies at the SPPDCL and that he did not know how to challenge the

admissibility of scientific evidence.

       The record shows that at the plea hearing, appellant acknowledged that he had

been charged with fifth-degree possession of a controlled substance, he understood the


                                             9
contents of his signed plea petition, and he verbally stated that he understood that he was

waiving his right to a trial. Appellant understood the charge against him, the rights he

was waiving, and the consequences of pleading guilty.

         Because appellant’s plea was accurate, voluntary, and intelligent, he is not entitled

to postconviction relief based upon a manifest injustice.

         ii.    Ineffective assistance of counsel

         “[T]o demonstrate ineffective assistance of counsel, a petitioner must show that

the representation fell below an objective standard of reasonableness (performance

prong) and that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different (prejudice prong).”

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

reasonableness of counsel’s performance is judged by an objective standard of

“representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” Opsahl v.

State, 677 N.W.2d 414, 421 (Minn. 2004) (quotation omitted).                “Trial counsel’s

performance is presumed to be reasonable.” State v. Vang, 847 N.W.2d 248, 266 (Minn.

2014).

         Appellant argues that his attorney’s representation was not reasonable because he

“did not demand and review the underlying [SPPDCL] file in his case.” But at his plea

hearing, appellant acknowledged that he was waiving his right to challenge the evidence

in his case. Appellant does not allege that his attorney failed to discuss the option of

demanding the SPPDCL file, refused to request the file, or advised him not to challenge


                                              10
the test results.   See Roberts, 856 N.W.2d at 293 (holding Roberts’s ineffective-

assistance-of-counsel claim fails because he did “not allege that his attorney failed to

discuss the option [of investigating the validity of the test results] with him, refused his

request to challenge the test results, or advised him not to challenge the results”).

       Appellant also fails to demonstrate that it was routine, customary practice of

defense attorneys in 2012 to request SPPDCL files for cases involving controlled

substances. For these reasons, appellant’s ineffective-assistance-of-counsel claim fails.

II.    The postconviction court did not err in denying appellant’s request for an
       evidentiary hearing.

       Appellant argues that the postconviction court erred by denying his request for an

evidentiary hearing. A postconviction court’s decision on whether to hold an evidentiary

hearing is reviewed for an abuse of discretion.           Riley, 819 N.W.2d at 167.         A

postconviction petitioner is not entitled to an evidentiary hearing if “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). An evidentiary hearing is required only if

“there are material facts in dispute that must be resolved to determine the postconviction

claim on its merits.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

       The record demonstrates that appellant is not entitled to relief for the reasons

discussed herein and that there are no disputed issues of material fact.           Therefore,

appellant has not shown that the postconviction court abused its discretion by denying his

request for an evidentiary hearing. Id.

       Affirmed.



                                             11
