                        This opinion will be unpublished and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
                                   A15-1168

                              Rojelio Castillo, petitioner,
                                      Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                                 Filed May 31, 2016
                                      Affirmed
                                 Halbrooks, Judge


                            Ramsey County District Court
                             File No. 62-K7-06-003734

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 Halbrooks, Presiding Judge; Worke, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant challenges the denial of his postconviction petition. We affirm.
                                           FACTS

       On July 26, 2006, police apprehended appellant Rojelio Castillo in a motel room in

St. Paul. They found more than 20 grams of methamphetamine in the room close to where

they arrested Castillo. Based on the July 26 incident and another incident a week earlier,

Castillo was charged with two counts of second-degree controlled-substance crime—one

for sale of a controlled substance and one for possession of a controlled substance with

intent to sell. Minn. Stat. § 152.022, subd. 1(1) (2006). On February 14, 2007, Castillo

pleaded guilty to second-degree possession of a controlled substance with intent to sell.

The district court sentenced him to 88 months in prison.

       On July 18, 2014, Castillo petitioned for postconviction relief, citing testing

deficiencies at the St. Paul Police Department Crime Lab (SPPDCL) that first came to light

in State v. Jensen, No. 19HA-CR-09-3463 (Minn. Dist. Ct. July 16, 2012).1 Castillo argued

that his petition is not time-barred and that he is entitled to postconviction relief on the

grounds of newly discovered evidence, a Brady violation, a due-process violation, manifest

injustice, and ineffective assistance of counsel. The postconviction court denied Castillo’s

petition without an evidentiary hearing on the ground that it was untimely. This appeal

follows.2




1
 Castillo filed three similar petitions for postconviction relief on the same day for different
unlawful-possession-of-a-controlled-substance convictions.
2
  The postconviction court denied Castillo’s other petitions as well. He appealed the
denials of those petitions to this court in case numbers A15-1642, A15-1196, and
A15-1176.

                                              2
                                       DECISION

       Castillo argues that the petition should not have been denied as untimely because it

meets the newly discovered evidence and the interests-of-justice exceptions to the two-year

time limit for filing a postconviction petition for relief. The postconviction court concluded

that neither exception applies to Castillo’s petition. We review the denial of a petition for

postconviction relief without an evidentiary hearing for an abuse of discretion. Roberts v.

State, 856 N.W.2d 287, 290 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015). “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.” Id. (quotations omitted).

       Petitions for postconviction relief must be filed within two years of 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.” Minn. Stat. § 590.01, subd. 4(a)

(2014). A petition filed after the two-year time limit may be considered if it satisfies one

of five statutory exceptions, unless the petition is filed two years after the date the claim

based on the exception arises. Id., subds. 4(b)-(c) (2014). If a postconviction petitioner

fails to satisfy one of the statutory exceptions, the petitioner is not entitled to relief or an

evidentiary hearing. Roberts, 856 N.W.2d at 290.

The Newly Discovered Evidence Exception

       A postconviction court may hear an untimely postconviction petition under the

newly discovered evidence exception if (1) the petitioner alleges the existence of newly

discovered evidence, (2) the evidence could not have been discovered through the exercise

of due diligence by the petitioner or his attorney within the two-year time limit, (3) the


                                               3
evidence is not cumulative, (4) the evidence is not solely for impeachment, and (5) the

evidence demonstrates the petitioner’s innocence by clear and convincing evidence. Id.

To meet the exception, all five criteria must be satisfied. Id.

       In Roberts v. State, we rejected the argument that the SPPDCL’s testing deficiencies

discovered in 2012 meet the requirements of the newly discovered evidence exception

because Roberts failed to show that he could not have discovered the deficiencies through

the exercise of due diligence and that the deficiencies did not establish by clear and

convincing evidence that he was innocent. Id. at 291-92. Castillo’s argument fails for the

same reasons.

       The criminal complaint filed against Castillo alleged that the crime lab tested the

packages found near Castillo to determine if they contained methamphetamine. Castillo,

like Roberts, knew that the charges were based on the test results, and he had access to

them under the applicable discovery rules. See Minn. R. Crim. P. 9.01, subd. 1(4). Castillo

argues that the evidence could not have been discovered through due diligence because the

lab deficiencies were not discovered until 2012. But we addressed the same argument in

Roberts, concluding that the fact that defense counsel discovered the deficiencies in 2012

demonstrated that they could have been discovered earlier had a defendant challenged the

lab results and procedures. 856 N.W.2d at 291. Like Roberts, Castillo failed to show that

he made any effort to challenge the test results or was prevented from doing so.

       Castillo attempts to distinguish Roberts on the basis of an affidavit filed in his case

that he argues establishes that the crime-lab deficiencies could not have been discovered

earlier through due diligence. But the affidavit does not distinguish this case from Roberts.


                                              4
In her affidavit, Lauri Traub, one of the attorneys who discovered the issues with the

SPPDCL, outlines how she learned about the lab’s deficiencies and when she believes they

started. Nothing in the affidavit alleges a fact that shows that it was not possible to discover

the deficiencies before 2012 through the exercise of due diligence.

       Further, Castillo has not shown that the evidence would have proved under a clear

and convincing standard that he is innocent. In Roberts, we held that the sufficiency of the

training, knowledge, and the practices of the SPPDCL alone were insufficient to prove by

clear and convincing evidence that Roberts was innocent. Id. Castillo, like Roberts, does

not offer any evidence regarding the chemical composition of the packages confiscated by

the police. And Castillo, similar to Roberts, has never claimed that the substance was not

methamphetamine. He admitted that the substance was methamphetamine during the plea

hearing, and it was his admission that was used to convict him—not the test results.

The Interests-of-Justice Exception

       “Under 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.’” Id. at 292 (quoting Minn. Stat.

§ 590.01, subd. 4(b)(5) (2012)).      The exception only applies when the petition has

“substantive merit” and the petitioner has not “deliberately and inexcusably failed to raise

the issue on direct appeal.” Id. (quotation omitted).

       We need not consider Castillo’s argument that his petition has substantive merit

based on newly discovered evidence, a Brady violation, or a violation of due process

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


                                               5
jurisdictions, 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) (citing State v. Lothenbach, 296

N.W.2d 854, 857 (Minn. 1980)). Castillo pleaded guilty to second-degree possession of a

controlled substance with intent to sell. 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 through cross-

examination or impeachment, and was not claiming that he was innocent. Because Castillo

waived his evidentiary and procedural challenges when he entered into a counseled guilty

plea, we need only address whether Castillo is entitled to withdraw his guilty plea on the

basis of manifest injustice or ineffective assistance of counsel.

       Minn. R. Crim. P. 15.05, subd. 1 provides that a “court must allow a defendant to

withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that

withdrawal is necessary to correct a manifest injustice.” If a guilty plea is not accurate,

voluntary, and intelligent, then a manifest injustice occurs. Perkins v. State, 559 N.W.2d

678, 688 (Minn. 1997). Castillo argues that his plea was not accurate, voluntary, or

intelligent. We disagree.

       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). Castillo pleaded guilty to second-degree

possession of a controlled substance with intent to sell. A person is guilty of second-degree

possession of a controlled substance under Minn. Stat. § 152.022, subd. 1(1), if “on one or

more occasions within a 90-day period the person unlawfully sells one or more mixtures

of a total weight of three grams or more containing cocaine, heroin, or methamphetamine.”


                                              6
“Sell” is defined in the statute as, among other things, “(3) to possess with intent to perform

an act listed in clause (1).” Minn. Stat. § 152.01, subd. 15a(3) (2006). The large quantity

of methamphetamine in this case demonstrates an intent to sell or distribute the drug. See

State v. Hanson, 800 N.W.2d 618, 623 (Minn. 2011) (“Evidence tending to show an intent

to sell or distribute includes evidence as to the large quantity of drugs possessed . . . .”).

       Castillo admitted during the plea hearing that he was in the motel room on July 26,

2006 to sell narcotics. He further admitted that he possessed more than six grams of

methamphetamine in the room and that more than 20 grams of methamphetamine were

found near where the police apprehended him. Those admissions provide a proper factual

basis to establish the elements of the crime and support the accuracy of the plea.

       Courts assess whether a plea is voluntary by considering all relevant circumstances

to determine if the defendant pleaded guilty due to improper pressure or coercion. State v.

Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). Castillo did not challenge the lab test results

and did not dispute that the packages obtained by the police contained methamphetamine.

He does not claim that he was pressured or coerced into not testing the results. To the

contrary, the plea agreement that Castillo signed and acknowledged at the plea hearing

stated that no one threatened him or made him any promises to obtain a guilty plea other

than those stated in the agreement or during the plea hearing. Those facts are sufficient to

show that Castillo’s plea was voluntary.

       For a guilty plea to be intelligent, the defendant must understand “the charges

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

“‘Consequences’ refers to a plea’s direct consequences, namely the maximum sentence and


                                               7
fine.” Id. (quotation omitted). Castillo claims that he did not understand the scope of his

right to challenge the evidence before he waived it. But Castillo signed a plea petition in

which he acknowledged that he understood that he was giving up the right to a jury trial,

the right to question the state’s evidence by cross-examining its witnesses, and the ability

to call his own witnesses to testify. He testified at the plea hearing in response to questions

from his attorney that he understood those rights. Castillo cannot now claim that he did

not understand his right to challenge the evidence because he has discovered that there may

have been deficiencies in SPPDCL’s procedures when he never asserted that the substance

found in the room was not methamphetamine. We conclude that his guilty plea was made

knowingly, voluntarily, and intelligently.

       In order for Castillo to prevail on his argument that he received ineffective

assistance of counsel, he must demonstrate that his counsel’s “representation fell below an

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104

S. Ct. 2052, 2064 (1984). He must also establish that he was prejudiced by showing that

there exists a “reasonable probability” that “but for the alleged errors of his counsel, he

would not have pleaded guilty.” State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). To

meet the objective standard of reasonableness, an attorney must exercise the “customary

skills and diligence that a reasonably competent attorney would [exercise] under similar

circumstances.” State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014) (quotation omitted).

We presume that a trial counsel’s performance was reasonable. Id. at 266.

       Castillo contends that his attorney’s representation was not reasonable because he

did not demand and review the SPPDCL file. Castillo does not allege that his attorney


                                              8
failed to discuss this option with him or advised him not to challenge the test results. He

also fails to provide evidence that it was customary practice of defense attorneys in 2006-

2007 to request SPPDCL files for cases involving controlled substances. To the contrary,

Traub’s affidavit indicates that understanding the deficiencies of the crime lab went beyond

her standard training as a public defender. Thus, Castillo has failed to show that his

attorney’s representation was unreasonable. We conclude that the postconviction court

acted within its discretion by denying Castillo’s postconviction petition.

       Affirmed.




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