                         This opinion will be unpublished and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
                                    A14-1188

                              Hector Martinez, petitioner,
                                      Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                 Filed April 20, 2015
                               Reversed and remanded
                                Cleary, Chief Judge

                              Dakota County District Court
                               File No. 19-T7-05-074161


Gregory S. Bachmeier, Maple Grove, Minnesota (for appellant)

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

Alina Schwartz, Campbell Knutson, P.A., Eagan, Minnesota (for respondent)


      Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

CLEARY, Chief Judge

      In this postconviction appeal, appellant challenges the district court’s denial of his

motion to withdraw his guilty plea for domestic assault under the manifest injustice
standard. Appellant argues that his guilty plea was not voluntarily or intelligently made

because he was not advised as to the immigration consequences of his plea. Because we

conclude the district court erred by failing to consider appellant’s motion a petition for

postconviction relief, we reverse and remand for further consideration by the district

court.

                                         FACTS

         Appellant Hector Martinez has been living in the United States since November

1999, when he entered the country illegally. In November 2005, Martinez pled guilty to

fifth degree domestic assault and disorderly conduct. At the plea hearing, neither the

court nor the defense attorney questioned Martinez as to whether he knew of or

understood the deportation consequences of a guilty plea. In the transcript of the plea

hearing, the court and the defense attorney both indicate that Martinez was only

instructed as to the rights and consequences included in the plea petition form. The plea

petition form that Martinez signed lacked any warning as to the deportation consequences

of the guilty plea. The form apparently had not been updated to include the immigration-

consequences language that should have been added in 1999, pursuant to 1998

amendments of Minn. R. Crim. P. 15. See Amendments to Rules of Criminal Procedure,

No. C1-84-2137 (Minn. Aug. 21, 1998) (order). Martinez was sentenced to probation

and a stay of adjudication on the fifth degree domestic assault charge.

         On April 10, 2013, the Department of Homeland Security notified Martinez that

he had been placed in removal (deportation) proceedings. To avoid removal, Martinez

began to pursue an I-601A Application for Provisional Unlawful Presence Waiver with


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the United States Citizenship and Immigration Services (USCIS). In preparing the I-

601A waiver, a background check revealed that Martinez had pleaded guilty to fifth

degree domestic assault. Under section 237(a)(2)(E) of the Immigration and Nationality

Act, a guilty plea for domestic assault constitutes a deportable offense.           8 U.S.C.

§ 1227(a)(2)(E). USCIS will deny an application for an I-601A waiver if the applicant

has a deportable offense on his record.           USCIS, Instructions for Application for

Provisional Unlawful Presence Waiver 6 (2015).            Because Martinez could not be

approved for the I-601A waiver with the guilty plea for domestic assault on his record,

Martinez filed a motion to withdraw the guilty plea on May 27, 2014.

       The district court held a brief motion hearing on the matter on June 25, 2014. At

the hearing, the district court stated that, in order for Martinez to discuss whether his

attorney had provided him with the immigration-consequences warning, Martinez would

“have to file a petition for post-conviction relief so that the attorney could be here and be

questioned; and you would have to request a hearing and I would have to decide whether

or not I was even going to grant a hearing on the issue.” The district court denied

Martinez’s motion the same day as the hearing. The entirety of the district court’s order

read “Motion to withdraw plea to domestic assault is denied. 1) 8 years after plea and

prejudice to state; 2) Def. was represented by counsel and this is not a post-conviction

competency of counsel.” This appeal followed.

                                      DECISION

       Minn. Stat. § 590.01, subd. 1(1) (2014) allows a person convicted of a crime, who

claims the conviction was obtained in violation of the law, to file a petition in the district


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court to vacate the judgment. The application of a statute to undisputed facts involves a

question of law, which this court decides under a de novo standard of review. State v.

Johnson, 743 N.W.2d 622, 625 (Minn. App. 2008).

       A petition for postconviction relief must be entitled in the name of the petitioner

versus the state of Minnesota. Minn. Stat. § 590.02 (2014). It must also include

                     (1)    a statement of the facts and the grounds upon
              which the petition is based and the relief desired. . . .
                     (2)    an identification of the proceedings in which the
              petitioner was convicted including the date of the entry of
              judgment and sentence or other disposition complained of;
                     (3)    an identification of any previous proceeding,
              together with the grounds therein asserted taken on behalf of
              the petitioner to secure relief from the conviction and
              sentence or other disposition;
                     (4)    the name and address of any attorney
              representing the petitioner. . . .

Id. “The court shall liberally construe the petition and any amendments thereto and shall

look to the substance thereof and waive any irregularities or defects in form.” Minn. Stat.

§ 590.03 (2014).

       Martinez’s motion met these basic statutory requirements of a petition for

postconviction relief. Additionally, the only way to bring a post-sentence motion to

withdraw a guilty plea based upon Minn. R. Crim. P. 15.05 is within a petition for

postconviction relief. James v. State, 699 N.W.2d 723, 727 (Minn. 2005). Therefore, the

district court should have treated Martinez’s motion as a petition for postconviction relief

under Minn. Stat. § 590.01. We remand for the district court to reconsider Martinez’s

motion.




                                             4
       As a threshold matter, several issues as to timeliness remain for the district court

to decide. The district court appears to have dismissed Martinez’s motion on the basis of

the state’s argument that the motion was untimely under the tests established for

timeliness in rule 15.05. However, because a motion to withdraw a guilty plea after

sentencing must be raised in a petition for postconviction relief, Martinez’s motion is

governed by the timeliness rules in Minn. Stat. § 590.01, subd. 4(a)-(c) (2014). See

Lussier v. State, 821 N.W.2d 581, 591 n.2 (Minn. 2012) (holding that the timeliness of a

motion to withdraw a guilty plea after sentencing is treated the same as the “manner in

which delays in filing petitions for postconviction relief are treated.”) (quoting James v.

State, 699 N.W.2d 723, 728 (Minn. 2005)).

       On remand, the district court should consider whether the state waived its

timeliness defenses under Minn. Stat. § 590.01, subd. 4(a)-(c) by failing to raise them

before the district court. See Carlton v. State, 816 N.W.2d 590, 601, 607 (Minn. 2012)

(holding that the statute of limitations in Minn. Stat. § 590.01, subd. 4(c) may be waived

by the state). If the district court determines that the state did not waive its defenses

under Minn. Stat. § 590.01, subd. 4(a)-(c), then the district court should resolve whether

Martinez’s motion was timely according to Minn. Stat. § 590.01, subd. 4(a)-(c).

       If the district court determines that Martinez’s motion was timely filed, then the

district court should grant Martinez an evidentiary hearing to determine whether Martinez

received the immigration-consequences warning required by rule 15. We note that the

district court should have considered from the outset whether Martinez’s motion merited

an evidentiary hearing. Minn. Stat. § 590.01 does not specifically require that a petition


                                            5
for postconviction relief request an evidentiary hearing. Instead, when a petition for

postconviction relief is filed, the court “shall promptly set an early hearing on the petition

and response thereto, and promptly determine the issues.” Minn. Stat. § 590.04, subd. 1

(2014). To merit an evidentiary hearing on a petition for postconviction relief, the

petitioner must allege facts that, if proved by a fair preponderance of the evidence, would

entitle him to the requested relief. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).

Where the petition alleges such facts, the court should not issue a summary dismissal of

the petition. State ex rel. Roy v. Tahash, 277 Minn. 238, 245, 152 N.W.2d 301, 306

(1967). Courts must resolve any doubts about whether to conduct an evidentiary hearing

in favor of the defendant seeking relief. State v. Nicks, 831 N.W.2d 493, 504 (Minn.

2013).

         Martinez’s motion clearly alleged that he had not received an immigration-

consequences warning and that, as a result, his guilty plea was not intelligently made.

These allegations were supported by Martinez’s affidavit and the documents from the

plea proceedings. To be valid, a guilty plea must be accurate, voluntary, and intelligent.

Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). Therefore, if the facts of Martinez’s

case were proved, he could be entitled to the requested relief.

         This court reviews for abuse of discretion a district court’s decision to deny a

motion to withdraw a guilty plea under Minn. R. Civ. P. 15.05, subd. 1. Campos v. State,

816 N.W.2d 480, 485 (Minn. 2012). We conclude that the district court abused its

discretion by denying Martinez’s request without considering whether he was entitled to

an evidentiary hearing under Minn. Stat. § 590.01. If the district court concludes on


                                              6
remand that Martinez’s motion was timely filed, then the district court should conduct an

evidentiary hearing to determine whether Martinez received the required immigration-

consequences warning.

      Reversed and remanded.




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