                         This opinion will be unpublished and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
                                    A14-1217

                       Alan Alberto Zamora Morales, petitioner,
                                     Appellant,

                                           vs.

                                  State of Minnesota,
                                     Respondent.

                                 Filed March 16, 2015
                                       Affirmed
                                     Larkin, Judge

                             Dakota County District Court
                             File No. 19HA-CR-10-3932


Richard L. Swanson, Chaska, Minnesota (for appellant)

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

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


      Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Larkin, Judge.

                        UNPUBLISHED OPINION

LARKIN, Judge

      Appellant challenges the postconviction court’s denial of his request to withdraw

his guilty plea to a fifth-degree controlled-substance crime. Because appellant’s request
for relief was time-barred under Minn. Stat. § 590.01, subd. 4(a)-(a)(1) (2014), and he did

not timely invoke the interests-of-justice exception to the time bar, we affirm.

                                            FACTS

       On March 21, 2011, appellant Alan Alberto Zamora Morales pleaded guilty to a

fifth-degree controlled-substance crime.        The plea agreement called for a stay of

adjudication.     During the plea colloquy, the following exchange occurred between

Zamora Morales and his defense counsel:

                Q: So you understand that right now you don’t have a
                conviction?
                A: Yes.
                Q: And you won’t have a conviction as long as you comply
                with the conditions that are spelled out by [the district court],
                is that correct?
                Q: Yes.
                ....
                Q: Now, you also understand that for individuals that
                someone might have a question about their legal status in
                terms of immigration matters, that if that should come to
                apply to you, or to any other individual, then there is the
                possibility that there would be immigration consequences
                because of an actual conviction, is that correct?
                A: Yes.

(Emphasis added.)

       The district court stayed adjudication of Zamora Morales’s sentence and placed

him on probation. Zamora Morales successfully completed probation, and the district

court dismissed the charge without adjudicating him guilty or entering a judgment of

conviction.

       In 2014, Zamora Morales learned that the government had initiated proceedings to

deport him based on his guilty plea. On March 12, 2014, Zamora Morales moved to


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withdraw his guilty plea, arguing that the plea was not intelligent because he was

unaware of the immigration consequences of pleading guilty. The district court denied

the motion after concluding that it was time-barred. Zamora Morales appeals.

                                      DECISION

       A post-sentence motion for plea withdrawal is treated as a request for

postconviction relief. James v. State, 699 N.W.2d 723, 727 (Minn. 2005). A person may

petition for postconviction relief if he 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.” Minn. Stat. § 590.01, subd. 1, 1(1) (2014). We review

the denial of a petition for postconviction relief for an abuse of discretion. Leake v. State,

737 N.W.2d 531, 535 (Minn. 2007).

       A petition for postconviction relief must be filed within two years of “the entry of

judgment of conviction or sentence.” Minn. Stat. § 590.01, subd. 4(a)-(a)(1). Whether a

petition is timely is a legal issue that is reviewed de novo. Yang v. State, 805 N.W.2d

921, 925 (Minn. App. 2011), review denied (Minn. Aug. 7, 2012). A stay of adjudication

is a sentence that triggers the two-year time limit for filing a postconviction petition.

Dupey v. State, 855 N.W.2d 544, 546 (Minn. App. 2014), review granted (Minn. Dec. 30,

2014). Here, Zamora Morales was sentenced on March 21, 2011, and he did not file his

request for postconviction relief until March 12, 2014.           The postconviction court

therefore correctly determined that the request was untimely.

       There are certain exceptions to the two-year time bar. See Minn. Stat. § 590.01,

subd. 4(b)(1)-(5) (2014) (listing five exceptions). Although Zamora Morales did not


                                              3
invoke a particular exception in the postconviction court, respondent State of Minnesota

acknowledged that the interests-of-justice exception arguably was applicable and

addressed that exception. Under the interests-of-justice exception, a district court may

consider a postconviction petition if the petitioner establishes “that the petition is not

frivolous and is in the interests of justice.” Id., subd. 4(b)(5). However, a petitioner

invoking the exception must do so “within two years of the date the claim arises.” Minn.

Stat. § 590.01, subd. 4(c) (2014). “‘Claim’ refers to the event that supports a right to

relief under the asserted exception.” Yang, 805 N.W.2d at 925.

       In Sanchez v. State, the supreme court held that a claim under the interests-of-

justice exception arises “when the petitioner knew or should have known that he had a

claim.” 816 N.W.2d 550, 560 (2012). In Sanchez, the petitioner argued that his claim

arose only after “he had actual, subjective knowledge” of the claim. Id. at 558. The

supreme court specifically rejected use of a subjective standard and adopted the objective

“knew or should have known” standard. Id. at 558-59. The date a claim arises under the

interests-of-justice exception is a question of fact that we review for clear error. Id. at

560.

       The postconviction court considered whether the interests-of-justice exception

should apply in this case. It first determined that the record “conclusively” establishes

that Zamora Morales’s plea was not intelligent because his plea petition contained no

immigration advisory and appellant was essentially advised by counsel that his plea

would not result in immigration consequences unless he violated probation and a

conviction was entered following revocation. The postconviction court noted that the


                                            4
“advisory was incorrect, misleading and insufficient” under Padilla v. Kentucky, 559 U.S.

356, 374, 130 S. Ct. 1473, 1486 (2010), and concluded that appellant proved that “his

plea was not intelligent and therefore [his] motion is not frivolous.”

       However, the postconviction court also determined that invocation of the interests-

of-justice exception would be untimely under Sanchez, reasoning that Zamora Morales

knew or should have known—at the time of his guilty plea—that his plea was based on

inaccurate immigration advice from his attorney. The postconviction court therefore

found that Zamora Morales’s claim arose on the date of his plea, March 21, 2011, and

that he had until March 21, 2013, to invoke the exception. Zamora Morales did not file

his request for relief until March 2014.

       Zamora Morales argues that the postconviction court misapplied Sanchez and that

it should have ruled on the merits of his motion for plea withdrawal under the interests-

of-justice exception. He argues that he “was not aware of his claim of ineffective

assistance of counsel at the time the district court imposed a sentence under a stay of

adjudication. Rather, the claim occurred when [he] became aware of the deportation

proceeding in 2014.” Zamora Morales’s argument that his claim did not accrue until he

learned about his deportation proceedings is based on his subjective knowledge. Under

the objective Sanchez test, Zamora Morales should have known that his lawyer provided

incorrect advice and that his plea was unintelligent when the advice was provided at the

plea hearing. Thus, the postconviction court properly applied Sanchez and correctly

determined the date on which Zamora Morales’s claim arose.




                                              5
      In conclusion, the postconviction court did not abuse its discretion by denying

Zamora Morales’s postconviction motion to withdraw his guilty plea.

      Affirmed.




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