                          This opinion will be unpublished and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
                                     A15-1642

                                Rojelio Castillo, petitioner,
                                        Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed May 23, 2016
                                       Affirmed
                                  Smith, Tracy, Judge

                              Ramsey County District Court
                               File No. 62-K2-03-002671

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 appellant)

       Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,

Tracy, Judge.

                         UNPUBLISHED OPINION

SMITH, TRACY, Judge

       Appellant Rojelio Castillo challenges the postconviction court’s summary 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 Castillo’s

petition was untimely, we affirm.

                                         FACTS

       On July 21, 2003, a St. Paul police officer responded to complaints of narcotics in

an alley. The officer saw a man look at him and begin to run. The officer stopped the

man, who identified himself as Castillo. Castillo told the officer that he had warrants,

methamphetamine in his front pocket, and a small bag of marijuana.             The officer

recovered two bags of suspected controlled substances from Castillo’s pockets. The

SPPDCL determined that the substance in one of the bags tested positive for

methamphetamine.

       The state charged Castillo with fifth-degree controlled-substance crime for

possessing methamphetamine. Castillo pleaded guilty to the charge. Castillo signed a

plea petition indicating that he made no claim he was innocent, and he agreed at the plea

hearing that the officer found “drugs” in his possession and that those “drugs” tested

positive for methamphetamine.

       On July 18, 2014, Castillo filed a petition for postconviction relief, citing testing

deficiencies at the SPPDCL that were identified in a 2012 Dakota County case. Castillo

argued that his postconviction petition was not time-barred and that he was entitled to

postconviction relief because of newly discovered evidence, a Brady violation, a due-

process violation, manifest injustice, and ineffective assistance of counsel.           The

postconviction court denied Castillo’s petition without an evidentiary hearing.


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       Castillo appeals.

                                     DECISION

       We review the postconviction court’s denial of a petition for postconviction relief

for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A

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.” Id. (quotation omitted). “We

review legal issues de novo, but on factual issues our review is limited to whether there is

sufficient evidence in the record to sustain the postconviction court’s findings.” Matakis

v. State, 862 N.W.2d 33, 36 (Minn. 2015) (quotation omitted).

       When no direct appeal is filed, a person seeking postconviction relief must file a

postconviction petition within two years of “the entry of judgment of conviction or

sentence.” Minn. Stat. § 590.01, subd. 4(a) (2012). Because Castillo did not file a direct

appeal, his postconviction petition was due within two years of his sentencing on

August 18, 2004. See id. Castillo acknowledges that his postconviction petition, filed

July 18, 2014, was untimely under subdivision 4(a), but argues that two of the five

statutory exceptions to the time bar apply. See id., subd. 4(b) (2012). A petition that

invokes one of the statutory exceptions “must be filed within two years of the date the

claim arises.” Id., subd. 4(c) (2012).

                                             I.

       Castillo argues that the SPPDCL testing deficiencies, which were discovered in

2012, constitute newly discovered evidence. A court may consider an untimely petition

for postconviction relief if (1) the petitioner alleges that there is newly discovered


                                             3
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 v. State,

856 N.W.2d 287, 290 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015); see also

Minn. Stat. § 590.01, subd. 4(b)(2).1 The postconviction court determined that Castillo

could not satisfy the second and fifth requirements.

       In Roberts, this court rejected a petitioner’s argument that the testing deficiencies

at the SPPDCL could not have been discovered with due diligence during the two-year

time limit. 856 N.W.2d at 291. As in Roberts, Castillo had access to the SPPDCL test

results, did not challenge the reliability of the test results, and did not request public

funds to obtain expert review of the test results. See id. In addition, the fact that another

petitioner discovered the deficiencies belies Castillo’s assertion that he could not have

discovered the deficiencies with due diligence. See id.

       Castillo attempts to distinguish Roberts by citing an affidavit filed in his case from

the attorney who discovered the SPPDCL deficiencies. In the affidavit, the attorney

reveals how she discovered the deficiencies and when she believes they started. But the

attorney does not allege that the deficiencies were impossible to discover prior to 2012.

As in Roberts, Castillo does not argue that he attempted to investigate the test results or


1
 In Roberts, this court “assume[d] without deciding that the newly-discovered-evidence
exception is applicable to a request for postconviction relief in the form of plea
withdrawal, even though the plain language of the statutory exception suggests that it
only applies to convictions resulting from a trial.” 856 N.W.2d at 291 n.2.

                                             4
that anyone prevented him from doing so. See id. Castillo has not shown that the

evidence could not have been discovered with due diligence within the two-year time

limit. See Minn. Stat. § 590.01, subd. 4(b)(2).

       Even if Castillo had shown that he could not have discovered the deficiencies, he

has not established his innocence. See id. This court determined in Roberts that the

SPPDCL deficiencies alone do not establish innocence. 856 N.W.2d at 291-92. As in

Roberts, Castillo offers no evidence regarding the chemical composition of the relevant

substance in his case. See id. at 291. As the postconviction court found, Castillo has

never claimed in either his original case or in his postconviction proceeding that the

substance was not methamphetamine.           Instead, Castillo told the officer there was

methamphetamine in his pocket and pleaded guilty to possessing methamphetamine. By

pleading guilty, Castillo waived his right to challenge the state’s evidence against him.

See id. at 293. Because Castillo does not argue that the recovered substance was not

methamphetamine and because there is other nonscientific evidence of Castillo’s guilt,

including Castillo’s own statements when arrested, Castillo has failed to establish his

innocence by clear and convincing evidence. See Minn. Stat. § 590.01, subd. 4(b)(2).

       The postconviction court did not abuse its discretion by determining that the

newly-discovered-evidence exception to the time bar does not apply.

                                             II.

       Castillo also argues that his postconviction petition should have been heard under

the interests-of-justice exception.     “[A] court may hear an untimely petition for

postconviction relief if ‘the petitioner establishes to the satisfaction of the court that the


                                              5
petition is not frivolous and is in the interests of justice.’” Roberts, 856 N.W.2d at 292

(quoting Minn. Stat. § 590.01, subd. 4(b)(5)).            This exception applies only in

“exceptional situations” where a claim has substantive merit and the petitioner has not

“deliberately and inexcusably failed to raise the issue on direct appeal.” Id. (quotations

omitted). The court may consider the degree to which each party is at fault for the

alleged error, whether a fundamental unfairness to the petitioner needs to be addressed,

and whether relief is “necessary to protect the integrity of judicial proceedings.” Id.

(quotation omitted).

         Castillo argues that his postconviction petition has substantive merit based on

newly discovered evidence, a Brady violation, a due-process violation, manifest injustice,

and ineffective assistance of counsel.

         A. Effect of Guilty Plea

         A counseled guilty plea traditionally operates “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).     Castillo pleaded guilty to fifth-degree possession of a controlled substance.

Castillo’s first three arguments—regarding newly discovered evidence, a Brady violation,

and procedural due process—assert evidentiary and procedural defects arising prior to

entry of his guilty plea. By entering his counseled guilty plea, Castillo waived those

arguments.       We therefore need only consider Castillo’s manifest-injustice and

ineffective-assistance-of-counsel arguments.




                                               6
      B. Manifest Injustice

      Castillo argues that he is entitled to withdraw his guilty plea to correct a manifest

injustice because his plea was not accurate, voluntary, or intelligent. 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).

      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).          Castillo pleaded guilty to fifth-degree

possession of a controlled substance. Castillo’s signed plea petition indicated that he

made no claim he was innocent, and at the plea hearing Castillo admitted that officers

found “drugs” in his possession and that those “drugs” tested positive for

methamphetamine. We conclude that these facts satisfy the accuracy requirement. See

Minn. Stat. § 152.025, subd. 2 (2002) (stating that a person is guilty of fifth-degree

controlled-substance crime if he unlawfully possesses a controlled substance).

      To determine whether a guilty plea is voluntary, we consider all relevant

circumstances to ensure that the defendant did not plead guilty due to improper pressure

or coercion. State v. Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). In his plea petition,

Castillo stated that no one had threatened him or made any promises to obtain his guilty

plea. He does not now assert otherwise. Instead, Castillo argues that the SPPDCL test

results improperly pressured him to plead guilty. But Castillo did not ask to review the

SPPDCL records, did not challenge the test results, and has never disputed that the




                                            7
substance was methamphetamine. We discern no improper pressure or coercion and

conclude that Castillo’s plea was voluntary.

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

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

“‘Consequences’ refers to a plea’s direct consequences, namely the maximum sentence

and fine.” Id. Castillo argues that he did not understand the scope of his right to

challenge the SPPDCL evidence and did not know that he waived this right by pleading

guilty. But Castillo signed a plea petition in which he agreed that he understood the

rights he was giving up by pleading guilty, including the right to challenge the evidence

against him in a pretrial hearing, the right to a jury trial, the right to call witnesses, and

the right to cross-examine the state’s witnesses.         The record shows that Castillo

understood the charge against him, the rights he waived by pleading guilty, and the

consequences of his plea. We therefore conclude that Castillo’s plea was intelligent.

       Because Castillo’s guilty plea was accurate, voluntary, and intelligent, Castillo is

not entitled to postconviction relief based on a manifest injustice.

       C. Ineffective Assistance of Counsel

       Castillo argues that he is entitled to withdraw his guilty plea because his counsel’s

representation was ineffective. To succeed on this claim, Castillo 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. See State v. Vang, 847 N.W.2d 248, 266 (Minn.

2014). An attorney’s performance is reasonable if he “exercise[s] the customary skills


                                               8
and diligence that a reasonably competent attorney would perform under similar

circumstances.” Id. at 266-67 (quotations omitted). We presume that a trial counsel’s

performance was reasonable. Id. at 266.

       Castillo argues that his counsel’s representation was not reasonable because the

attorney “did not demand and review” the SPPDCL file. But, as in Roberts, Castillo

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

request to challenge the test results, or advised him not to challenge the results.” See 856

N.W.2d at 293. Castillo also fails to provide evidence that defense attorneys in 2003

customarily requested SPPDCL files in controlled-substance cases. In fact, Castillo’s

cited affidavit indicates that defense attorneys did not customarily request SPPDCL files

at that time. Castillo has failed to show that his counsel’s performance was unreasonable.

       In addition, Castillo has not shown that the outcome of his proceeding would have

been different but for his counsel’s alleged errors. Castillo has never asserted that the

substance was not methamphetamine. To the contrary, Castillo told the arresting officer

that he had methamphetamine and agreed at his plea hearing that the substance tested

positive for methamphetamine.        Castillo has failed to satisfy either prong of the

ineffective-assistance-of-counsel test.

       The postconviction court did not abuse its discretion by determining that the

interests-of-justice exception does not apply. Because neither statutory exception applies,

the postconviction court did not abuse its discretion by denying Castillo’s petition for

postconviction relief.




                                             9
                                            III.

       Finally, Castillo argues that the postconviction court abused its discretion by

denying his request for an evidentiary hearing. We review the postconviction court’s

decision regarding whether to hold an evidentiary hearing for an abuse of discretion.

Riley, 819 N.W.2d at 167. A postconviction petitioner is not entitled to an evidentiary

hearing if “the petition and the files and records of the proceeding conclusively show that

the petitioner is entitled to no relief.”   Minn. Stat. § 590.04, subd. 1 (2012).        An

evidentiary hearing is required only if “there are material facts in dispute that must be

resolved to determine the postconviction claim on its merits.” Powers v. State, 695

N.W.2d 371, 374 (Minn. 2005).

       Because the material facts are not in dispute and Castillo’s petition is time-barred,

Castillo is not entitled to postconviction relief. The postconviction court therefore did not

abuse its discretion by denying Castillo’s request for an evidentiary hearing.

       Affirmed.




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