                          This opinion will be unpublished and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
                                     A15-1806

                             Baron Montero Jones, petitioner,
                                      Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed July 18, 2016
                                Reversed and remanded
                                     Jesson, Judge

                              Freeborn County District Court
                                  File No. 24-CR-13-185

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Lee A. Bjorndal, Albert Lea City Attorney, Albert Lea, Minnesota (for respondent)

         Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         Because appellant Baron Montero Jones was not provided assistance of counsel on

his first postconviction petition, we reverse the district court’s order dismissing Jones’s

petition and remand for appointment of counsel.
                                          FACTS

       On June 13, 2013, with the assistance of counsel, Jones pleaded guilty to driving

under the influence (DWI) in violation of Minnesota Statutes section 169A.20,

subdivision 1(1) (2012). That day the district court sentenced Jones to 60 days in the

county jail.

       On June 24, 2015, Jones filed a pro se motion in district court to withdraw his plea

pursuant to Minnesota Rule of Criminal Procedure 15.05, and Minnesota Statutes

chapter 590 (2014), which provides for postconviction relief. The state filed a response on

June 30, 2015, opposing the motion, which it treated as a petition for postconviction relief.

On September 1, 2015, the district court denied Jones’s petition, ruling that it was time

barred under the postconviction statute because two years after the entry of judgment of

conviction or sentence had elapsed.

       The district court did not inform Jones of his right to counsel at the postconviction

stage, nor did district court administration forward Jones’s pro se petition to the Office of

the Minnesota Appellate Public Defender (State Public Defender’s Office).                 On

September 15, 2015, Jones filed a pro se notice of appeal. The court of appeals forwarded

a copy of the pro se filing to the State Public Defender’s Office, and a state public defender

was appointed to represent Jones.

       Jones now appeals the district court’s order.

                                      DECISION

       Jones argues that his right to counsel was violated when the district court did not

inform him of his right to be represented by counsel on his first postconviction petition and


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when district court administration never forwarded his pro se petition to the State Public

Defender’s Office. We agree.

       We review a postconviction court’s findings of fact for an abuse of discretion and

questions of law de novo. Bonga v. State, 765 N.W.2d 639, 642 (Minn. 2009). When the

facts are undisputed, as they are here, whether a person’s right to counsel has been violated

is a question of law this court reviews de novo. Gergen v. Comm’r of Pub. Safety, 548

N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

       The Minnesota Constitution guarantees a criminal defendant the right to assistance

of counsel in his or her defense. Minn. Const. art I, § 6. The Minnesota Supreme Court

determined that the right to assistance of counsel extends to one review of a criminal

conviction, whether by direct appeal or a first review by postconviction proceeding.

Deegan v. State, 711 N.W.2d 89, 98 (Minn. 2006). The denial of the right to counsel “is a

structural error,” Bonga, 765 N.W.2d at 643, that “does not require a showing of prejudice

to obtain reversal.” State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997). Structural

errors are such where “[t]he entire conduct of the [proceeding] from beginning to end is

obviously affected, and without the basic protections guaranteed by the right being

violated, no criminal punishment may be regarded as fundamentally fair.”            State v.

Kuhlmann, 806 N.W.2d 844, 851 (Minn. 2011) (quotations omitted).

       Minnesota law further protects the right to assistance of counsel by providing that

when a defendant files a petition for postconviction relief, and is without counsel, the

district court administrator must send a copy of the petition to the State Public Defender’s

Office. Minn. Stat. § 590.02, subd. 1(4); Paone v. State, 658 N.W.2d 896, 899 (Minn. App.


                                             3
2003) (“Properly applying the [postconviction] statute, the court administrator should have

sent a copy of the appellant’s petition to the state public defender.”). The State Public

Defender’s Office must represent an indigent person unable to obtain counsel on the

person’s first appeal or postconviction petition. Minn. Stat. § 590.05. Finally, a motion to

withdraw a guilty plea made after sentencing must be raised in a petition for postconviction

relief. Lussier v. State, 821 N.W.2d 581, 586 n.2 (Minn. 2012).

       Because Jones filed his motion to withdraw his guilty plea as a petition for

postconviction relief, the district court needed to follow the postconviction statute’s

procedural safeguards by recognizing Jones’s right to counsel and forwarding Jones’s

petition to the State Public Defender’s Office. Jones was previously appointed a trial level

public defender, and there is no evidence in the record that Jones waived his right to

counsel. Because Jones’s right to counsel on his first postconviction petition was violated,

there was structural error.

       The state argues that this court should affirm the district court because it found

Jones’s initial petition untimely and frivolous.       However, as Jones points out, the

untimeliness of his petition is a claim by the state that is subject to several exceptions. See

Minn. Stat. § 590.01, subd. 4(b) (providing several exceptions to the two-year time bar).

Thus, the timeliness of a petition is an issue subject to litigation and Jones did not have the

assistance of counsel to litigate the issue. Finally, reaching the merits of the timeliness

issue is not warranted because structural error does not require a showing of prejudice to

obtain reversal. Camacho, 561 N.W.2d at 171.




                                              4
       Jones’s right to counsel on his first postconviction petition was violated because he

was not informed of his right to counsel and his petition was not forwarded to the State

Public Defender’s Office. On remand, Jones should be allowed to petition the district court

for postconviction relief with the assistance of counsel.

       Reversed and remanded.




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