                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0424

                             Laura Barreto Renteria, petitioner,
                                        Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                 Filed October 20, 2014
                                 Reversed and remanded
                                     Hudson, Judge

                               Ramsey County District Court
                                 File No. 62-CR-11-1823

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

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Hudson, Judge; and Stauber,

Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges the postconviction court’s denial of her motion to withdraw

her guilty plea to felony theft by wrongfully obtaining public assistance, arguing that she
was not accurately advised of the immigration consequences of her plea and trial counsel

provided prejudicially ineffective assistance by failing to inform her that her conviction

of an aggravated felony would bar relief from deportation. Because we conclude that an

evidentiary hearing is required on the allegations in appellant’s motion, we reverse and

remand for further consideration in the district court.

                                          FACTS

       In 2011, the state charged appellant Laura Renteria with felony theft by

wrongfully obtaining public assistance, in violation of Minn. Stat. § 256.98 (2008),

alleging that she had failed to report employment to the Ramsey County Human Services

Department and had received public assistance of $10,740, to which she was not entitled.

Appellant, who lacks immigration status as a United States citizen or resident, pleaded

guilty to the offense and signed a plea petition stating, in part, that her guilty plea “may

result in deportation, exclusion from admission to the United States or denial of

naturalization as a United States citizen.” See Minn. R. Crim. P. 15.01, subd. 1(6)(l). At

the plea hearing, appellant acknowledged that she received assistance benefits for a ten-

month period when she failed to report all of her earned income.

       Appellant’s attorney questioned her on the record:

       Q:     Do you also understand—and this was contained in [the plea
              agreement], which talks about immigration consequences. Do you
              remember discussing that with me?
       A:     Yes.
       Q:     And you also agree that I am a criminal defense lawyer, and I
              explained that to you, correct?
       A:     Yes.
       ....



                                              2
       Q:     Okay. And I told you that by pleading guilty to this charge today,
              which is a felony, it will create problems for you with respect to
              your immigration status. You understand that?
       A:     Yes. Yes, I understand it.
       Q:     And, in fact, this plea could result in your deportation?
       A:     Yes, I understand it.
       Q:     But you wish to continue with the plea today, correct?
       A:     Yes.
       Q:     Do you need any more time to speak with an immigration attorney
              before we continue here today?
       A:     Yes.
       Q:     Do you need—do you want—okay.
       A:     Oh, I didn’t understand.
       Q:     Do you want to speak with an immigration attorney before we
              proceed today?
       A:     Oh, no, of course not.
       Q:     Okay. And it’s correct that at this point in time your immigration
              status is not that of a United States citizen or resident, correct?
       A:     No.

The district court accepted the plea and noted that it was understood that appellant would

argue for a sentencing departure.

       At appellant’s sentencing hearing, appellant’s attorney recalled that she was

initially slated to go through a diversion program, but she did not qualify because of the

amount of money involved in the theft. He stated that “[i]f the court can recall, a couple

of months ago we had a lengthy chambers conversation” in which it was discussed that

he would be arguing for a gross-misdemeanor, rather than a felony, disposition: “I did

tell the court . . . that I would be making a pitch today for some sort of a disposition that

would not necessarily be catastrophic to her immigration status.” He continued:

              I’m asking the court to consider the full picture here with
              respect to what she did. She has taken responsibility. I’m
              also asking the court to consider, instead of the 15-day cap of
              incarceration, that she would do something more in line to
              what diversion would have given [her] had she been accepted;


                                             3
               which would have been community service. I think I had
               mentioned to the court, perhaps 50 hours of community
               service with a small fine given the large amount of
               restitution. . . . If Your Honor wants to hear more with
               respect to the Gross Misdemeanor and how that affects or
               how that plays into immigration, I can certainly do so. But,
               that’s primarily one of the compelling reasons the court could
               depart with respect to disposition as opposed to a Felony.

The prosecutor stated that she did not object to the proposed disposition.

       The district court found that substantial and compelling circumstances existed to

sentence the matter as a gross misdemeanor, based on appellant’s taking responsibility for

the offense, her remorse, and her substantial responsibility regarding repayment of

restitution in excess of $10,000. Appellant was sentenced to 360 days, stayed, with two

years of probation and 50 hours of community service, and was ordered to pay restitution

of $10,740. See Minn. Stat. § 609.13, subd. 1(1) (2008).

       Appellant successfully completed probation. In December 2013, she moved for

postconviction relief seeking to withdraw her plea, arguing that a manifest injustice had

occurred because she had not received full and accurate legal advice concerning the

immigration consequences of the plea under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.

1473 (2010).     Her postconviction attorney argued that appellant’s trial attorney had

negotiated for a gross-misdemeanor sentence, believing that such a sentence would not

affect her immigration case, but she had not been informed that wrongfully obtaining

public assistance of more than $10,000 would automatically make her an aggravated felon

for immigration purposes and bar any relief from deportation. The motion alleged that

appellant had lived in the United States for 14 years and had three children, two of whom



                                             4
were United States citizens, and that had she received accurate advice about the

immigration consequences of her plea, she would not have pleaded guilty.

       The district court held a summary hearing and denied the motion orally on the

record. The district court noted that appellant had submitted no affidavit indicating that

she was not guilty or that she lacked the ability to understand the plea negotiation and the

seriousness of the charge. The district court stated that appellant had acknowledged that

the plea would create problems with her immigration status and declined the opportunity

to speak with an immigration attorney. The district court stated that it appeared that

appellant’s defense attorney made an extensive effort to represent his client to comply

with Padilla, and no manifest injustice occurred. This appeal follows.

                                     DECISION

       Appellant seeks to withdraw her guilty plea, arguing that a manifest injustice

occurred because her plea was not intelligently entered, and trial counsel failed to fully

inform her of the immigration consequences of her plea. See Minn. R. Crim. P. 15.05,

subd. 1 (allowing withdrawal of a guilty plea when it is necessary to “correct a manifest

injustice”). A manifest injustice exists if a guilty plea is not valid. State v. Theis, 742

N.W.2d 643, 646 (Minn. 2007). To be constitutionally valid, a guilty plea must be

“accurate, voluntary and intelligent.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

The requirement that a plea must be intelligent insures that the defendant understands the

charges, the rights waived by pleading guilty, and the consequences of the plea. State v.

Trott, 338 N.W.2d 248, 251 (Minn. 1983).




                                            5
         Appellant sought to withdraw her guilty plea after sentencing in a petition for

postconviction relief. See Lussier v. State, 821 N.W.2d 581, 583, 586 n.2 (Minn. 2012).

Generally, a petition for postconviction relief may not be filed more than two years after

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) (2012). This rule, however, is subject to certain exceptions. See id.

at subd. 4(b) (2012) (listing exceptions, including if the petitioner establishes to the

district court’s satisfaction that “the petition is not frivolous and is in the interests of

justice”). “Any petition invoking an exception provided in paragraph (b) must be filed

within two years of the date the claim arises.” Id. at subd. 4(c) (2012). For this purpose,

the date “the claim arises” has been interpreted to mean “when the petitioner knew or

should have known that he had a claim.” Sanchez v. State, 816 N.W.2d 550, 560 (Minn.

2012).

         The state argues that appellant’s petition was time-barred for failure to satisfy the

two-year time limitation in Minn. Stat. § 590.01, subd. 4, and that no statutory exceptions

apply, including the interests-of-justice exception. But the supreme court has held that

the exception to the two-year limitations period invoking an exception under Minn. Stat.

§ 590.01, subd. 4(c), is not jurisdictional, and it may be waived. Carlton v. State, 816

N.W.2d 590, 602, 606 (Minn. 2012). Here, because the state failed to challenge the

timeliness of the petition before the district court, the state waived assertion of the two-

year limitations period under Minn. Stat. § 590.01, subd. 4(c), and the district court did

not err by addressing the merits of appellant’s petition. See Carlton, 816 N.W.2d at 605


                                               6
(stating that “it would be inconsistent with the [postconviction] statute as a whole to

enforce the time limitation as a jurisdictional bar where the State has failed to assert the

untimeliness of the petition”).

       The district court issued a substantive ruling denying appellant’s petition without

an evidentiary hearing. Appellate courts review the denial of evidentiary hearings on

postconviction-relief petitions “for an abuse of discretion.” Hooper v. State, 838 N.W.2d

775, 786 (Minn. 2013). We will uphold a postconviction court’s factual determinations if

they are supported by sufficient evidence, but we review issues of law de novo. Leake v.

State, 737 N.W.2d 531, 535 (Minn. 2007).          A postconviction court must hold an

evidentiary hearing unless the petition, records, and files conclusively show that the

petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2012). An evidentiary

hearing is warranted if disputed material facts exist that must be resolved to determine the

merits of the claim. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

       Appellant argues that a manifest injustice occurred permitting plea withdrawal

because her plea was not intelligent, based on trial counsel’s failure to properly inform

her of the immigration consequences of the plea under Padilla v. Kentucky.                A

defendant’s guilty plea is constitutionally invalid if the defendant received ineffective

assistance of counsel, which renders the plea unintelligent. Hill v. Lockhart, 474 U.S. 52,

56, 106 S. Ct. 366, 369 (1985); State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). A

person seeking to establish that an attorney was ineffective must demonstrate that

(1) counsel’s performance fell below an objective standard of reasonableness; and (2) a

reasonable probability exists that, but for counsel’s unprofessional error, the result would


                                             7
have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052,

2064–65 (1984).

       In Padilla, the United States Supreme Court held that the Sixth Amendment right

to counsel requires counsel to give correct advice on the deportation consequence of a

guilty plea when that consequence is “truly clear.” Padilla, 559 U.S. at 369, 130 S. Ct. at

1483. In that case, the defendant pleaded guilty to drug-distribution charges, resulting in

his conviction of a “deportable” offense, which made his deportation presumptively

mandatory. Id. at 356, 369, 130 S. Ct. at 1475, 1483. The Supreme Court held that he

had satisfied the first prong of the Strickland test by alleging that counsel advised him

prior to his plea that he “did not have to worry about immigration status since he had

been in the country so long.” Id. at 359, 130 S. Ct. at 1478 (quotation omitted). The

Supreme Court therefore remanded for consideration of the second prong of the

Strickland test. Id. at 374–75 , 130 S. Ct. 1487.

       Here, after argument on the record, the district court made oral findings and a

determination that no manifest injustice occurred justifying plea withdrawal. The district

court noted appellant’s statement at the plea hearing acknowledging her understanding

that her plea would “create problems” with her immigration status. But as appellant

notes, federal law plainly provides that “[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2006).

And an “aggravated felony” is defined to include any crime that “involves fraud or deceit

in which the loss to the victim or victims exceeds $10,000.”                    8 U.S.C.

§ 1101(a)(43)(M)(i) (2006). Therefore, because appellant’s guilty plea resulted in her


                                             8
conviction of a “deportable” offense, her deportation was not just probable, but

“presumptively mandatory.” Padilla, 559 U.S. at 356, 369, 130 S. Ct. at 1475, 1483.

       “A criminal defendant who faces almost certain deportation is entitled to know

more than that it is possible that a guilty plea could lead to removal; he is entitled to

know that it is a virtual certainty.” United States v. Bonilla, 637 F.3d 980, 984 (9th Cir.

2011). Because appellant’s offense fell within the category of a deportable offense, the

deportation consequences of her plea were clear under federal law. And “when the

deportation consequence is truly clear . . . the duty to give correct advice is equally

clear.” Padilla, 559 U.S. at 369, 130 S. Ct. at 1483. Here, trial counsel’s statement that

he advised appellant that her plea would “create problems” with respect to her

immigration status raises a question of material fact as to whether he correctly advised

her that her guilty plea would result in near-certain deportation. Further, this record

raises an additional material factual issue on the intelligence of appellant’s plea because it

permits an inference that the parties were mutually mistaken in a belief that sentencing

her offense as a gross misdemeanor, while still providing for restitution over $10,000,

would not result in her conviction of a deportable offense.

       Claims of ineffective assistance of counsel, which require additional evidence to

determine their validity, including testimony about attorney-client communications,

require an evidentiary hearing. Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997).

Here, appellant has alleged that her attorney failed to correctly inform her of the

immigration consequences of her plea and that, had she received correct advice, she

would not have pleaded guilty. See Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012)


                                              9
(stating that an evidentiary hearing on a postconviction claim of ineffective assistance of

counsel requires the petitioner to allege facts that, if proven by a fair preponderance of

the evidence, would satisfy both prongs of the Strickland test). “[W]e resolve any doubts

about whether an evidentiary hearing is required in favor of the petitioner.” Patterson v.

State, 670 N.W.2d 439, 441 (Minn. 2003). We conclude that appellant is entitled to an

evidentiary hearing on her claim of ineffective assistance of trial counsel, and we reverse

and remand for the district court to conduct such a hearing. Further development of the

record is also necessary for this court to fully address appellant’s contention that her plea

was rendered unintelligent by her failure to understand the immigration consequences of

her plea. See State v. Bowles, 530 N.W.2d 521, 537 (Minn. 1995) (remanding for

supplementation of the record where the record did not reveal facts essential to appellate

review). Because we remand on these issues, we do not reach appellant’s additional

claim alleging ineffective assistance of postconviction counsel.

       Reversed and remanded.




                                             10
