                        This opinion will be unpublished and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
                                   A16-0036

                         Mohamed Abdule Ahmed, petitioner,
                                   Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                Filed August 22, 2016
                                      Affirmed
                                   Johnson, Judge

                           Hennepin County District Court
                             File No. 27-CR-08-46920

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

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Muehlberg, Judge.




      
       Retired judge of the district court, serving as judge of the Minnesota Court of
Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

JOHNSON, Judge

       In 2009, Mohamed Abdule Ahmed pleaded guilty to fifth-degree controlled

substance crime. The district court stayed adjudication and placed Ahmed on probation

for three years. After Ahmed successfully completed his term of probation, the complaint

was dismissed without an adjudication. In 2015, Ahmed filed a postconviction petition in

which he sought to withdraw his guilty plea. The district court denied Ahmed’s petition

on the ground that it is untimely and without merit. We conclude that the district court did

not have jurisdiction over Ahmed’s postconviction petition because Ahmed was not

convicted of a crime. Therefore, we affirm.

                                         FACTS

       In June 2008, Ahmed went to a United Parcel Service store in Eden Prairie to pick

up a package. The package contained khat, a plant that often contains cathinone, a

controlled substance. See Minn. Stat. §§ 152.02, subd. 2(6), 152.025, subd. 2(1) (2006).

Ahmed admitted to a law-enforcement officer that he also had attempted to pick up a

package of khat two days earlier. The state charged Ahmed with two counts of fifth-degree

controlled substance crime, in violation of Minn. Stat. § 152.025, subd. 2(1).

       In April 2009, Ahmed pleaded guilty to count 1 pursuant to a plea agreement.

Before the plea hearing, Ahmed signed a plea petition. Paragraph 27 of the plea petition

states, “My attorney has told me and I understand that if I am not a citizen of the United

States, conviction of a crime may result in deportation, exclusion from admission to the

U.S.A., or denial of naturalization.” Ahmed acknowledged during the plea hearing that he


                                              2
had had “ample opportunity to go through each and every sentence, paragraph, of the entire

document” and that he understood everything in the petition. The district court stayed

adjudication and placed Ahmed on probation for three years. See Minn. Stat. § 152.18,

subd. 1 (2006). Three years later, in April 2012, the district court dismissed the complaint.

       In July 2015, Ahmed, through retained counsel, filed a postconviction petition in

which he sought to withdraw his guilty plea. Ahmed submitted an affidavit stating that he

is not a United States citizen. He alleged that he received ineffective assistance of counsel

in April 2009 because his attorney did not advise him of the immigration consequences of

his guilty plea, including the possibility that he would be deported, and because his attorney

did not file a motion to suppress evidence. He also alleged that his guilty plea is invalid

because it was not intelligently entered. The state opposed the petition on the grounds that

it is untimely and without merit.

       In October 2015, the postconviction court denied Ahmed’s petition.                The

postconviction court determined that Ahmed’s petition is untimely because it was filed

after the two-year limitations period and that Ahmed cannot satisfy an exception to the

statute of limitations. In addition, the postconviction court determined that Ahmed’s claim

would fail on the merits because the United States Supreme Court’s decision in Padilla v.

Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), is not retroactive, because his attorney did

not unreasonably refrain from filing a motion to suppress evidence, and because his guilty

plea is valid. Ahmed appeals.




                                              3
                                       DECISION

       Ahmed argues that the postconviction court erred by denying his postconviction

petition on the grounds that it is untimely and without merit. In response, the state argues

that this court should affirm on the ground that Ahmed cannot seek postconviction relief

because he was not convicted of a crime.

       We begin by considering the state’s responsive argument, which concerns a

threshold issue. The state relies on Lunzer v. State, 874 N.W.2d 819 (Minn. App. 2016),

in which this court concluded, on similar facts, that a person may not pursue postconviction

relief if the person pleaded guilty but the district court initially stayed adjudication and

later dismissed the complaint without entering a judgment of conviction. Id. at 821-23.

We noted in Lunzer that the supreme court recently had held that when a district court

“grants a stay of adjudication under Minn. Stat. § 152.18, subd. 1, there is no ‘judgment of

conviction or sentence.’” Lunzer, 874 N.W.2d at 822 (quoting Dupey v. State, 868 N.W.2d

36, 39-41 (Minn. 2015)). The supreme court stated in Dupey that a guilty plea results in a

conviction only if a district court records the guilty plea, which can occur only if the district

court “adjudicates the defendant guilty on the record.” 868 N.W.2d at 40 n.2 (citing Minn.

Stat. § 609.02, subd. 5, and quoting State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn.

2011)) (alterations omitted). Accordingly, we reasoned in Lunzer that, “[b]ecause a stay

of adjudication under Minn. Stat. § 152.18, subd. 1, is not a conviction for purposes of the

postconviction relief statute of limitations, it clearly follows that a person who receives

such a stay is not ‘convicted of a crime’” and, thus, “cannot seek postconviction relief.”




                                               4
874 N.W.2d at 822 (quoting Minn. Stat. § 590.01, subd. 1). Thus, we concluded that

jurisdiction was lacking when Lunzer filed a postconviction petition. Id. at 823.

       The state is correct that Lunzer governs this case.1 After Ahmed pleaded guilty, the

district court stayed adjudication. After Ahmed completed his term of probation, the

district court dismissed the complaint without recording Ahmed’s guilty plea or otherwise

entering a judgment of conviction. Thus, Ahmed was not convicted of a crime. Because

there was no conviction, the postconviction court did not have jurisdiction over Ahmed’s

postconviction petition. See id. at 822-23.

       In sum, Ahmed may not seek relief in a postconviction action because he was not

convicted of a crime. For that reason, we need not and may not consider the timeliness or

the merits of Ahmed’s postconviction petition.

       Affirmed.




       1
         We note that the state did not argue to the postconviction court that Ahmed cannot
seek postconviction relief because he was not convicted of a crime. The state filed its
answer in August 2015, approximately six months before this court issued its opinion in
Lunzer. Nonetheless, this court has determined that the postconviction court’s lack of
jurisdiction in this situation is the type of jurisdictional issue that may be raised at any time,
even for the first time on appeal. See Lunzer, 874 N.W.2d at 820 (citing In re Welfare of
M.J.M., 766 N.W.2d 360, 364 (Minn. App. 2009), for proposition that lack of subject-
matter jurisdiction “may be raised at any time by the parties or sua sponte by the court, and
cannot be waived by the parties”). Furthermore, whenever a party asserts that subject-
matter jurisdiction is lacking, a court is obligated to “examine whether it has the authority
to hear the type of dispute and to grant the type of relief sought.” Williams v. Smith, 820
N.W.2d 807, 812-13 (Minn. 2012). Thus, it is appropriate for this court to consider the
state’s responsive argument, even though it was not presented to the postconviction court.

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