                         This opinion will be unpublished and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
                                    A15-1768

                             Jovon Perez Davis, petitioner,
                                      Appellant,
                                         vs.

                                  State of Minnesota,
                                     Respondent.

                                  Filed May 23, 2016
                                       Affirmed
                                  Rodenberg, Judge

                             Ramsey County District Court
                               File No. 62-CR-11-9058

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 Bjorkman, Presiding Judge; Rodenberg, Judge; and

Bratvold, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Jovon Perez Davis 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 at the
St. Paul Police Department Crime Lab (SPPDCL). Because his petition was untimely,

we affirm.

                                         FACTS

       On October 27, 2011, St. Paul police officers stopped appellant’s vehicle for

having no front license plate. While speaking with appellant, the officers smelled an odor

of marijuana coming from the vehicle. When asked about the odor, appellant stated that

there was marijuana in the glove box. Officers located marijuana in the glove box, and

then searched the vehicle. In the center console, officers located a plastic bag containing

30 pills that appeared to be controlled substances.

       After being advised of his Miranda rights, appellant was interviewed and admitted

that the marijuana and pills found in the vehicle belonged to him. He told the officers

that he had purchased the pills for pain in his hands, and from “a guy he knows.” The

SPPDCL identified 15 of the pills as hydrocodone bitartrate and acetaminophen

(commonly known as Vicodin), a Schedule III controlled substance. The remaining 15

pills were identified as oxycodone hydrochloride with acetaminophen (commonly known

as Percocet), a Schedule II controlled substance. The SPPDCL also confirmed the

identity of the suspected marijuana weighing 27.51 grams.

       The state charged appellant with fifth-degree controlled substance crime

(possession) in violation of Minn. Stat. § 152.025, subd. 2(b)(1) (2010).        The state

disclosed to appellant documentation and correspondence that it had received from the

SPPDCL. Appellant did not challenge the validity of the test results or dispute the

allegation that the substances were marijuana and controlled-substance narcotics. On


                                             2
April 23, 2012, appellant pleaded guilty to possessing the controlled substances. The

district court sentenced appellant to a stayed sentence of one year and one day and placed

him on probation for five years.

       In July 2012, the SPPDCL came under public scrutiny and was the subject of a

Frye-Mack hearing in an unrelated Dakota County District Court case. Independent

reviews of the SPPDCL revealed systemic problems in its laboratory protocols and

testing processes.   On July 18, 2014, appellant petitioned for postconviction relief,

arguing that the postconviction court should permit him to withdraw his guilty plea or

grant an evidentiary hearing on the grounds that: (1) the deficient SPPDCL testing is

newly discovered evidence; (2) the state violated Brady v. Maryland by not disclosing the

deficient testing to appellant; (3) the state violated appellant’s due-process rights by using

unreliable scientific evidence to obtain the guilty plea; (4) appellant’s guilty plea was not

accurate, voluntary, or intelligent; and (5) he received ineffective assistance of counsel.

Although appellant filed his petition more than two years after entry of judgment of his

conviction, he argued that his petition was timely because it met the newly discovered

evidence and interests-of-justice exceptions to the statutory two-year time-bar.

       The postconviction court denied appellant’s petition without a hearing, concluding

that the petition is time-barred and fails on the merits. This appeal followed.

                                      DECISION

       Appellant argues that the postconviction court abused its discretion by determining

that his petition for postconviction relief is time-barred. “A person convicted of a crime

who claims that the conviction violates his rights under the constitution or laws of the


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United States or Minnesota may petition for postconviction relief unless direct appellate

relief is available.” Roberts v. State, 856 N.W.2d 287, 290 (Minn. App. 2014), review

denied (Minn. Jan. 28, 2015); see also Minn. Stat. § 590.01, subd. 1 (2014).            The

petitioner must file the petition for postconviction relief within two years of “the entry of

judgment of conviction or sentence if no direct appeal is filed.” Minn. Stat. § 590.01,

subd. 4(a) (2014). But there are five statutory exceptions to the two-year filing deadline.

See id., subd. 4(b) (2014).

       Here, appellant argues that two exceptions apply: (1) “the existence of newly

discovered evidence, including scientific evidence, that could not have been ascertained

by the exercise of due diligence by the petitioner or petitioner’s attorney within the two-

year time period for filing a postconviction petition” and (2) “the petition is not frivolous

and is in the interests of justice.” Id. If an exception applies, the petition must be filed

within two years of the date the claim arises. Id., subd. 4(c) (2014). A claim arises when

the petitioner “knew or should have known” that the claim existed. Sanchez v. State, 816

N.W.2d 550, 560 (Minn. 2012). A petitioner must demonstrate that he satisfies one of

the statutory exceptions before he will be entitled to relief or an evidentiary hearing on an

untimely petition. Roberts, 856 N.W.2d at 290. “If the petitioner does not demonstrate

that an exception applies and that application of the exception is timely, the

postconviction court may summarily deny the petition as untimely.” Id. We must first

determine if any exceptions to the time limitation apply before we address the substantive

claims of the petition. Gassler v. State, 787 N.W.2d 575, 582 (Minn. 2010).




                                             4
       We review “the denial of a petition for postconviction relief without a hearing for

an abuse of discretion.” Chambers v. State, 831 N.W.2d 311, 318 (Minn. 2013). The

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.” Riley v. State, 819 N.W.2d

162, 167 (Minn. 2012) (quotation omitted).

I.     Newly Discovered Evidence Exception

       A court may hear an otherwise untimely petition for postconviction relief if (1) the

petitioner alleges the existence of newly discovered evidence, (2) the evidence could not

have been discovered through the due diligence of the petitioner or his attorney within the

two-year time limit, (3) the evidence is not cumulative, (4) the evidence is not for

impeachment purposes, and (5) the evidence establishes the petitioner’s innocence by

clear and convincing evidence. Roberts, 856 at 290 (citing Minn. Stat. § 590.01, subd.

4(b)(2)). All five elements must be established to obtain relief. Id.

       Appellant argues that the testing deficiencies discovered at the SPPDCL in 2012

constitute newly discovered evidence.      We rejected a similar argument in Roberts,

holding that the newly discovered evidence exception did not apply because Roberts

failed to show that the testing deficiencies could not have been discovered through the

exercise of due diligence and did not establish by clear and convincing evidence that he

was innocent. Id. at 291-92. Like Roberts, appellant did not challenge the identification

of the substances, nor did he ever claim that the substances were not narcotics. He did

not offer evidence regarding the identity of the substances and expressly gave up his right

to challenge the state’s evidence by pleading guilty.               Appellant specifically


                                             5
acknowledged signing the plea petition and stating that he possessed narcotics not

prescribed to him. And like Roberts, appellant faced nonscientific evidence of guilt,

which included his admissions to police and at his plea hearing that he possessed the non-

prescribed narcotics and marijuana when he was arrested.

       Appellant attempts to distinguish the facts of this case from Roberts, arguing that

even if the SPPDCL reports had been diligently reviewed, it would have taken an

attorney with specialized training to discover the testing deficiencies. But appellant, like

Roberts, has failed to show that he made any attempt to investigate the test results or that

anything prevented him from doing so. Id. at 291. Because appellant has failed to

establish all five elements of the newly discovered evidence exception, the district court

did not abuse its discretion by concluding that the exception does not apply.

II.    Interests-of-Justice Exception

       To satisfy the interests-of-justice exception, a petitioner must establish that “the

petition is not frivolous and is in the interests of justice.” Minn. Stat. § 590.01, subd.

4(b)(5). We will only apply the interests-of-justice exception “in exceptional situations.”

Gassler, 787 N.W.2d at 586. The Minnesota Supreme Court has “identified a non-

exclusive list of factors to be considered.” Id. Those factors include “the degree to

which the party alleging error is at fault for that error, the degree of fault assigned to the

party defending the alleged error, and whether some fundamental unfairness to the

defendant needs to be addressed.” Id. at 587.

       Appellant argues that his petition has substantive merit based on newly discovered

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


                                              6
assistance of counsel. The 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. Ford, 397 N.W.2d

875, 878 (Minn. 1986) (citing State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980)).

Appellant pleaded guilty to fifth-degree possession of a controlled substance. He was

represented by counsel at the plea hearing 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 that he was innocent. By

entering a counseled guilty plea, appellant waived his evidentiary and procedural

challenges. Thus, we address only whether appellant is entitled to withdraw his guilty

plea based on manifest injustice and ineffective assistance of counsel.

       A.     Manifest Injustice

       A court must allow a defendant to withdraw a guilty plea if it is necessary to

correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice

occurs if a guilty plea is not accurate, voluntary, and intelligent. Perkins v. State, 559

N.W.2d 678, 688 (Minn. 1997). Appellant argues that his guilty plea was not accurate,

voluntary, or intelligent. We are not persuaded.

       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). Appellant pleaded guilty to fifth-degree

possession of a controlled substance. He admitted in his plea petition and at the plea

hearing that he possessed narcotic pills not prescribed to him, and acknowledged that he




                                             7
was not making a claim that he was innocent. We conclude that these facts are sufficient

to satisfy the accuracy requirement.

       Courts determine whether a plea is voluntary by considering all relevant

circumstances, and ensuring that the defendant did not plead guilty due to improper

pressure or coercion. State v. Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). Appellant

argues that the test results from the SPPDCL created improper pressure that induced him

into pleading guilty. We are not persuaded. Appellant did not ask to review the SPPDCL

records, did not challenge the test results, and did not dispute that the substances were

non-prescribed narcotics. Both appellant’s signed plea petition and his sworn testimony

at the plea hearing provided that no one had threatened him or made him any promises in

order to obtain a guilty plea. We discern no improper pressure or coercion associated

with appellant’s guilty plea.

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

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

argues that he did not know about the deficiencies of the SPPDCL, did not understand the

scope of his right to challenge the evidence against him, and did not know that he was

waiving this right by pleading guilty. These arguments are unavailing. Appellant’s

signed plea petition and statements at the plea hearing indicate that his attorney informed

him of the rights he was waiving and that he would not have any other opportunity to

object to the evidence the state had against him. On the record before us, we conclude

that appellant understood the charges, the rights he was waiving, and the consequences of




                                            8
his guilty plea. Because the plea was accurate, voluntary, and intelligent, appellant is not

entitled to postconviction relief based upon a manifest injustice.

       B.     Ineffective Assistance of Counsel

       To prevail on his ineffective-assistance-of-counsel claim, appellant must show that

his counsel’s representation fell below an objective standard of reasonableness and that,

but for the counsel’s errors, there is a reasonable probability that the outcome of the

proceeding would have been different. Nissalke v. State, 861 N.W.2d 88, 94 (Minn.

2015). An attorney provides reasonable assistance when he exercises 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). Trial counsel’s

performance is presumed to be reasonable. Id. at 266.

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

attorney did not demand to review the SPPDCL file. We disagree. As in Roberts,

appellant does not allege that his attorney failed to discuss this option with him, refused

to request the file, or advised him not to challenge the results. 856 N.W.2d at 293.

Appellant also fails to provide evidence that would have given his attorney a reason to

believe that the substances were not prescription narcotics or marijuana; appellant not

only admitted to possessing “hydrocodone” in his plea petition and at the plea hearing, he

also admitted to the arresting officer that he had purchased “the pills from a guy he

knows to help with pain in his hands.” And finally, appellant’s claim that his trial

counsel was ineffective for failing to investigate the test results is considered a part of

trial strategy, which this court generally does not review. See Opsahl v. State, 677


                                             9
N.W.2d 414, 421 (Minn. 2004) (stating that “[t]he extent of counsel’s investigation is

considered a part of trial strategy,” which is generally not reviewable). Because appellant

does not show how his attorney’s representation fell below an objective standard of

reasonableness, his ineffective-assistance-of-counsel claim fails.1

       Affirmed.




1
  A district court may summarily deny a petition when the petition, files, and records
conclusively show that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd.
1 (2014). The denial of a request for an evidentiary hearing is reviewed for an abuse of
discretion. Riley, 819 N.W.2d at 167. Because the record conclusively shows that
appellant is not entitled to postconviction relief, the district court did not abuse its
discretion by denying his request for an evidentiary hearing. See Powers v. State, 695
N.W.2d 371, 374 (Minn. 2005).

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