                           This opinion will be unpublished and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
                                      A14-1907

                            Crystal Marie Vodinelich, petitioner,
                                         Appellant,

                                             vs.

                                     State of Minnesota,
                                        Respondent.

                                   Filed August 10, 2015
                                         Affirmed
                                      Peterson, Judge

                                Dakota County District Court
                                File No. 19HA-CR-11-1388

Cathryn Middlebrook, Chief Appellate Public Defender, Katie M. Conners, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

         Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from the denial of her petition for postconviction relief, appellant

argues that she is entitled to withdraw her guilty plea to fifth-degree controlled-substance
crime, or, at the very least, she is entitled to an evidentiary hearing to resolve the material

facts and issues presented in the petition. We affirm.

                                           FACTS

       In a pat-down search conducted during a traffic stop, a police officer discovered a

pipe that contained charred residue in appellant Crystal Marie Vodinelich’s jacket pocket.

A preliminary test of the pipe by the Dakota County Drug Task Force (DCDTF) detected

methamphetamine. A later test of the pipe by the St. Paul Police Department Crime Lab

(SPPDCL) also detected methamphetamine.

       Appellant was charged with fifth-degree controlled-substance crime and two

counts of fourth-degree driving while impaired (DWI). Pursuant to a plea agreement, she

pleaded guilty to the controlled-substance charge and to one DWI count.

       At the plea hearing, appellant confirmed that she understood the trial rights that

she was giving up and that she was not claiming that she was innocent of the charges to

which she was pleading guilty. When establishing the factual basis for the controlled-

substance offense, appellant affirmed that the police officer “found in [her] possession or

control, a pipe . . . that was determined to contain a trace amount of methamphetamine.”

The district court accepted appellant’s plea, and she was convicted and sentenced.

       Appellant later learned about deficient controlled-substance testing procedures

used at the SPPDCL and petitioned for postconviction relief.             In her petition, she

requested that she be permitted to withdraw her guilty plea, or, at the very least, that there

be an evidentiary hearing to resolve the material fact issues presented in the petition. The




                                              2
district court determined that appellant was entitled to no relief and denied her petition

without a hearing. This appeal follows.

                                    DECISION

                                            I.

      Under the postconviction-relief statute,

             a person convicted of a crime, who claims that . . . the
             conviction obtained or the sentence or other disposition made
             violated the person’s rights under the Constitution or laws of
             the United States or of the state . . . may commence a
             proceeding to secure relief by filing a petition in the district
             court in the county in which the conviction was had to vacate
             and set aside the judgment and to discharge the petitioner or
             to resentence the petitioner or grant a new trial or correct the
             sentence or make other disposition as may be appropriate.

Minn. Stat. § 590.01, subd. 1(1) (2014). The petitioner has the burden to prove the facts

alleged in the postconviction petition by a fair preponderance of the evidence. Minn.

Stat. § 590.04, subd. 3 (2014). “To meet that burden, a petitioner’s allegations must be

supported by more than mere argumentative assertions that lack factual support.” Powers

v. State, 695 N.W.2d 371, 374 (Minn. 2005).

      In an appeal from a postconviction court’s decision to grant or deny relief, we

review issues of law de novo and issues of fact for sufficiency of the evidence. Leake v.

State, 737 N.W.2d 531, 535 (Minn. 2007); see also Butala v. State, 664 N.W.2d 333, 338

(Minn. 2003) (noting that appellate courts “extend a broad review of both questions of

law and fact” when reviewing postconviction proceedings).

             We review a denial of a petition for postconviction relief, as
             well as a request for an evidentiary hearing, for an abuse of
             discretion. A postconviction court abuses its discretion when


                                            3
              its decision is based on an erroneous view of the law or is
              against logic and the facts in the record.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation and citation omitted).

       In her petition for postconviction relief, appellant asserted that (a) her guilty plea

was invalid; (b) newly discovered evidence of deficiencies at the SPPDCL rendered her

guilty plea insufficient; (c) the state’s suppression of the evidence of the deficiencies

violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and (d) she received

ineffective assistance of counsel when her counsel failed to discover the deficiencies at

the SPPDCL.

       A.     Invalid Guilty Plea

       A defendant does not have an absolute right to withdraw a guilty plea. State v.

Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). A defendant seeking to withdraw a guilty

plea after sentencing must show “that withdrawal is necessary to correct a ‘manifest

injustice.’” Carey v. State, 765 N.W.2d 396, 400 (Minn. App. 2009) (quoting Minn. R.

Crim. P. 15.05, subd. 1), review denied (Minn. Aug. 11, 2009). Under this standard, plea

withdrawal must be permitted if the guilty plea is not valid, which depends on whether

the plea was accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 94. The

defendant has the burden of establishing the grounds for permitting a plea withdrawal,

and the validity of a plea is a question of law, which this court reviews de novo. Id. This

court must affirm a postconviction court’s decision unless the postconviction court

abused its discretion. Bruestle v. State, 719 N.W.2d 698, 704 (Minn. 2006).

       Appellant argues that her guilty plea was not accurate, voluntary, or intelligent.



                                             4
              i.     Accurate

       To be accurate, a plea must be supported by a proper factual basis. Lussier v.

State, 821 N.W.2d 581, 588 (Minn. 2012). A proper factual basis is established when

there are sufficient facts in the record to support a conclusion that the defendant’s

conduct falls within the charge to which she is pleading guilty. Munger v. State, 749

N.W.2d 335, 337-38 (Minn. 2008) (stating that the requirement that a plea be accurate

“protects the defendant from pleading guilty to a more serious offense than he could

properly be convicted of at trial”). “The factual basis requirement is usually satisfied

when the court asks the defendant to express in his own words what happened.” State v.

Lyle, 409 N.W.2d 549, 552 (Minn. App. 1987). “The court should not accept the plea

unless the record supports the conclusion that the defendant actually committed an

offense at least as serious as the crime to which he is pleading guilty.” State v. Trott, 338

N.W.2d 248, 251-52 (Minn. 1983).

       Appellant argues that her plea was not supported by a proper factual basis because

the state did not prove the identity of the substance in her possession. Appellant contends

that relying solely on a defendant’s belief that something is a controlled substance is

insufficient to prove the identity of a substance. But the factual basis for appellant’s plea

that was established during the plea hearing was not based solely on appellant’s belief

that the substance in the pipe was methamphetamine. During her testimony at the plea

hearing, appellant did not simply state that she believed the charred substance in her pipe

was methamphetamine; she agreed that a police officer “found in [her] possession or

control, a pipe . . . that was determined to contain a trace amount of methamphetamine.”


                                             5
(Emphasis added.) The determination that the substance was methamphetamine was not

based on appellant’s belief. This evidence was sufficient to support a conclusion that

appellant’s conduct fell within the controlled-substance charge to which she pleaded

guilty.

                ii.    Voluntary

          The requirement that a plea be voluntary “ensures a defendant is not pleading

guilty due to improper pressure or coercion.” Raleigh, 778 N.W.2d at 96. Appellant

argues that, in light of what we now know about testing deficiencies at the SPPDCL,

information “that a credible scientific lab had tested the substance [in her pipe], and it

tested positive as a controlled substance” was an improper pressure that induced her to

plead guilty.     But no evidence suggests that the state made any representations to

appellant about the scientific credibility of the SPPDCL, and providing test results to

appellant was neither improper pressure nor coercive.

                iii.   Intelligent

          The requirement that a plea be intelligent “ensures that a defendant understands

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

Appellant argues that her plea was not intelligent because she was not aware of the

SPPDCL’s deficiencies when she pleaded and did not know how, or understand her right,

to challenge the test result. But during the plea hearing, appellant affirmed that she

(1) reviewed the plea petition with her attorney, (2) understood and was giving up her

right to a trial where she “would be presumed innocent and the burden would be upon

[the state] to prove [her] guilt beyond a reasonable doubt,” and (3) understood and was


                                              6
giving up her rights to (a) “cross examine [the state’s] witnesses and ask them questions”

and (b) call witnesses to testify on her behalf.

       These statements demonstrate that appellant and her attorney had discussed her

right to challenge the state’s case against her and that appellant understood that, by

pleading guilty, she gave up her right to do so. Appellant has not shown that when she

gave up her right to challenge the state’s case, she did not understand that she could use

the discovery procedures available under the rules of criminal procedure to challenge the

SPPDCL test result.

       Appellant did not show that withdrawal of her guilty plea is necessary to correct a

manifest injustice, and the district court did not abuse its discretion by denying her

request to withdraw the plea.

       B.     Newly Discovered Evidence

       Appellant argues that because the evidence about the widespread problems at the

SPPDCL meets the test for newly discovered evidence, the district court abused its

discretion when it denied her motion to withdraw her plea. A defendant is entitled to

postconviction relief based on newly discovered evidence if the defendant proves

              (1) that the evidence was not known to the defendant or
              his/her counsel at the time of the trial; (2) that the evidence
              could not have been discovered through due diligence before
              trial; (3) that the evidence is not cumulative, impeaching, or
              doubtful; and (4) that the evidence would probably produce
              an acquittal or a more favorable result.




                                              7
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997); see also Roberts v. State, 856

N.W.2d 287, 290-92 (Minn. App. 2014) (considering a postconviction claim of newly

discovered evidence following a guilty plea), review denied (Minn. Jan. 28, 2015).

       The district court determined that the evidence about deficiencies at the SPPDCL

was not known to appellant or her counsel when appellant pleaded guilty and that the

evidence could not have been discovered with due diligence before her guilty plea. But

the district court denied postconviction relief based on newly discovered evidence

because it also determined that the evidence about the SPPDCL “would be impeaching

evidence and go to the weight of the evidence, not its admissibility” and that appellant

had not shown that the evidence “would probably produce an acquittal or a more

favorable result.”

       The district court did not abuse its discretion by denying appellant postconviction

relief based on newly discovered evidence about deficiencies at the SPPDCL. There

were two test results that showed that the substance on the pipe found in appellant’s

pocket was methamphetamine; one result from the preliminary DCDTF test and a

separate result from the SPPDCL test. Appellant has not shown that the DCDTF test

result was insufficient to prove that the substance was methamphetamine. Consequently,

even if the evidence about SPPDCL deficiencies was sufficient to make the SPPDCL test

results inadmissible, there is still sufficient evidence to prove that the substance was

methamphetamine, and it is not probable that the evidence about SPPDCL deficiencies

would produce an acquittal or a more favorable result.




                                            8
       Also, we disagree with the district court’s determination that the evidence about

deficiencies at the SPPDCL could not have been discovered with due diligence before

appellant’s guilty plea. Under Minn. R. Crim. P. 9.01, subd. 1(4)(a), the prosecutor must,

at the defense’s request, disclose the results of scientific tests. Thus, appellant could have

requested the SPPDCL’s test results, and, if she had any question about the validity of the

results, the prosecutor was required under Minn. R. Crim. P. 9.01, subd. 1(4)(b), to allow

her to subject the tested substance to her own reasonable tests.           If appellant had

conducted her own tests and the test results suggested that the SPPDCL test results were

incorrect, inadequate, or invalid, she could have brought a motion under Minn. R. Crim.

P. 9.01, subd. 2(1), asking the district court to require the prosecutor to assist her in

seeking access to specified matters relating to the case, which could have included

laboratory procedures at the SPPDCL. Appellant demanded disclosure of all test results,1

but she has not shown that she used any of these available forms of discovery to

determine the validity of the SPPDCL test results.

       Appellant argues that the problems at the SPPDCL could not have been discovered

through due diligence before her plea hearing because no one had reason to suspect any

problems until after the hearing. But, unless appellant already knew when the pipe was

discovered that the substance on the pipe was methamphetamine, she had reason to

suspect problems when the SPPDCL’s test result showed that the substance was

methamphetamine.      At that point, due diligence would include using the discovery

1
  In her May 26, 2011 demand for disclosure, appellant demanded all results and reports
of physical or mental examinations, scientific tests, experiments and comparisons made
in connection with this case.

                                              9
procedures available under the rules of criminal procedure to determine the validity of the

results. Evidence of the deficiencies could have been discovered using these procedures.

See Roberts, 856 N.W.2d at 291 (stating that appellant’s assertion that “the deficiencies

in the [SPPDCL’s] procedures could not have been discovered with due diligence

because no one had reason to suspect problems at the crime lab” was “belied” by the fact

that “the defendant in [a] 2012 Dakota County case discovered the deficiencies”).

       C.     Brady Violation

       “[T]he suppression by the State, whether intentional or not, of material evidence

favorable to the defendant violates the constitutional guarantee of due process.” Walen v.

State, 777 N.W.2d 213, 216 (Minn. 2010) (citing Brady, 373 U.S. at 87, 83 S. Ct. at

1196-97); see also State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (explaining that the

state has a duty to disclose even when there has been no request for the evidence by the

defendant and that the remedy for a Brady violation is a new trial). A Brady violation

exists if “(1) the evidence at issue is favorable to the accused, either because it is

exculpatory or it is impeaching; (2) the evidence was willfully or inadvertently

suppressed by the State; and (3) prejudice to the accused resulted.” State v. Brown, 815

N.W.2d 609, 622 (Minn. 2012). The state’s suppression of evidence results in prejudice

to the accused if the evidence is “material” in that “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different.” Walen, 777 N.W.2d at 216 (quotation omitted) (explaining that “[a]

reasonable probability is one that is sufficient to undermine confidence in the outcome”

(quotations omitted)).


                                             10
       The district court determined that appellant did not demonstrate that a Brady

violation occurred because “nothing in the record suggests that the evidence [of

deficiencies at the SPPDCL] was suppressed in any manner by the prosecutor. Indeed,

everything in the record suggests that the evidence was unknown to the prosecutor at the

time of [appellant’s] plea.”

       There is sufficient evidence to support the district court’s findings that the

evidence was unknown to the prosecutor and the prosecutor did not suppress the

evidence. Appellant entered her guilty plea on February 22, 2012, and she was sentenced

on April 18, 2012. As appellant asserted in the memorandum of law in support of her

petition for postconviction relief, “[a] few months after the court sentenced [appellant] in

this case, significant new evidence of massive problems at the [SPPDCL] came to light.”

Appellant also asserted in the memorandum, “[t]he [SPPDCL] came under scrutiny in

2012 and was the subject of a prong two Frye-Mack hearing in Dakota County that began

on July 16, 2012. Following three days of testimony in July 2012, the Dakota County

Attorney’s Office abandoned the [SPPDCL] testing results.” When appellant entered her

guilty plea, the prosecutor could not have known about evidence that did not come to

light until after appellant was sentenced.

       Appellant argues that, because prosecutors and police officers could have learned

about the SPPDCL’s deficiencies before her plea hearing, suppressing evidence about the

deficiencies was a Brady violation. But, although it appears that the practices in the

SPPDCL that were found to be deficient existed before appellant pleaded guilty,

appellant cites no evidence that the prosecutors or police knew before July 2012 that the


                                             11
practices were deficient. Appellant cites no authority that extends the duty to disclose

evidence under Brady to include a duty to conduct investigations that may produce

evidence that is favorable to the accused.

       D.     Ineffective Assistance of Counsel

       An appellate court reviews the denial of postconviction relief based on a claim of

ineffective assistance of counsel de novo because such a claim involves a mixed question

of law and fact. Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013). To prevail on a

claim of ineffective assistance of counsel, a defendant must show “(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 (Minn.

2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064,

2068 (1984)). “The objective standard of reasonableness is defined as representation by

an attorney exercising the customary skills and diligence that a reasonably competent

attorney would perform under similar circumstances.” State v. Vang, 847 N.W.2d 248,

266 (Minn. 2014) (quotations omitted) (noting that “counsel’s performance is presumed

to be reasonable”).

       Appellant argues that her attorney provided ineffective assistance by failing to

demand and review the SPPDCL file for her case. Appellant has not shown that a

reasonably competent defense attorney exercising customary skills and diligence in a

controlled-substance case would have demanded the SPPDCL file before the discovery of

the SPPDCL’s deficiencies. See id. at 267 (stating that the reasonableness of counsel’s


                                             12
conduct is judged in view of the facts at the time of the conduct). Appellant has not cited

any evidence that would have given her attorney a reason to believe that the substance on

her pipe was not methamphetamine and, therefore, to question the validity of the

SPPDCL test results.

         Even if appellant’s attorney provided representation that fell below an objective

standard of reasonableness by failing to demand the SPPDCL file, it is not reasonably

probable that the result of the proceeding would have been different absent the attorney’s

error.    Two tests detected the presence of methamphetamine on the pipe.           Even if

deficiencies at the SPPDCL were serious enough to make the SPPDCL test results

inadmissible, there was still evidence that the substance was methamphetamine. As long

as there was evidence that the substance was methamphetamine, it is not reasonably

probable that appellant’s attorney would not have pursued a plea agreement. Appellant

was not entitled to postconviction relief because of ineffective assistance of counsel.

                                             II.

         Appellant argues that she should be granted an evidentiary hearing to allow her to

present evidence in support of her postconviction claims. A district court must hold a

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).      “An evidentiary hearing is not required unless there are

material facts in dispute that must be resolved to determine the postconviction claim on

its merits.” Powers, 695 N.W.2d at 374. A denial of an evidentiary hearing is reviewed

for an abuse of discretion. Riley, 819 N.W.2d at 167. Based on the preceding analysis of


                                             13
the issues that appellant raised in her petition, we conclude that there are no material facts

in dispute to be resolved during an evidentiary hearing and the record conclusively shows

that appellant is not entitled to postconviction relief. Nothing in the record suggests that

either appellant or her counsel had any reason to believe that the charred substance was

not methamphetamine or that the prosecutor had any reason to believe before appellant

pleaded guilty and was sentenced that there were deficiencies at the SPPDCL. The

district court did not abuse its discretion by denying appellant’s request for an evidentiary

hearing.

       Affirmed.




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