                        This opinion will be unpublished and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
                                   A15-0200

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Omar Taha Yaseen,
                                    Appellant.

                                  Filed July 5, 2016
                                      Affirmed
                                  Rodenberg, Judge

                             Clay County District Court
                      File Nos. 14-CR-14-1684, 14-CR-14-2658

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

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      In this consolidated appeal from his separate convictions for second-degree

controlled-substance distribution and fourth-degree assault, appellant Omar Taha Yaseen
argues that the district court abused its discretion by denying his motion to withdraw his

guilty plea to the controlled-substance charge, and that both sentences were erroneously

based on an incorrect criminal-history score. We affirm.

                                         FACTS

       On May 27, 2014, appellant was charged with one count of second-degree

controlled-substance sale under Minn. Stat. § 152.022, subd. 1(5) (2012), and one count

of fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(b) (2012),

resulting from an incident involving a 15-year-old female. He remained in jail awaiting

trial on those charges when, in August 2014, he was charged with fourth-degree assault

under Minn. Stat. § 609.2231, subd. 3(2) (2014), for spitting on a corrections officer.

       That same month, appellant pleaded guilty to the second-degree-controlled-

substance charge in the first file. Appellant, who is from Iraq and whose first language is

Arabic, indicated that he did not need an interpreter for his plea, and confirmed that he

could read, speak, and understand the English language. Appellant stated under oath that

he understood the plea petition, had been fully advised by his attorney, understood his

rights, was waiving his trial rights, and was pleading guilty because he was guilty. The

criminal-sexual-conduct charge in that file was dismissed.

       A pre-sentence investigation report was prepared, during which appellant admitted

that the May incident involved him having sexual contact with the 15-year-old female.

At a hearing after his controlled-substance plea, appellant asked to be sentenced

immediately. Appellant’s counsel advised against this course of action because counsel

wanted to argue concerning the statutory requirement that appellant register as a


                                             2
predatory offender despite the state having dismissed the criminal-sexual-conduct charge.

The district court granted appellant’s counsel a continuance to accommodate arguments

concerning the constitutionality of the registration requirement.

       In September 2014, appellant pleaded guilty to the fourth-degree-assault charge.

Once again, appellant stated under oath at his plea hearing that he understood the plea

petition, had been fully advised by his attorney, understood his rights, and was waiving

his trial rights to plead guilty because he was guilty.

       Using a criminal-history score of five, the district court sentenced appellant to 98

months in prison for the second-degree controlled-substance conviction, a severity level

eight offense. See Minn. Sent. Guidelines 5.A (2014). The district court determined that

appellant was statutorily required to register as a predatory offender, and noted that

appellant had not challenged “probable cause for the criminal-sexual-conduct charge at

any time during the proceedings.” Appellant was advised that he would be required to

register as a predatory offender for a minimum of 10 years.

       The district court then sentenced appellant on the fourth-degree-assault conviction,

a severity level one offense. Id. The district court used a criminal-history score of seven

to sentence appellant to 22 months in prison, concurrent with his second-degree-

controlled-substance sentence.        Appellant did not object at sentencing to the

criminal-history scores used by the district court.

       In January 2015, appellant filed a notice of appeal in both cases. We consolidated

the appeals, and granted appellant’s motion to stay the consolidated appeal to allow

appellant to pursue postconviction proceedings in the district court. Appellant filed his


                                              3
petition for postconviction relief in both files in July 2015, and a hearing was held that

September.

      In December 2015, the district court issued an order denying appellant

postconviction relief.   The district court first rejected appellant’s argument that the

United States Supreme Court’s decision in Padilla v. Kentucky applied to situations that

do not implicate immigration consequences. 559 U.S. 356, 365, 130 S. Ct. 1473, 1481

(2010).   The district court also determined that no manifest injustice resulted from

appellant’s pleas, despite his lack of knowledge concerning the consequences while in

prison resulting from his being a registered predatory offender under Department of

Corrections (DOC) rules. Turning to appellant’s sentencing arguments, the district court

agreed that an erroneous criminal-history score had been used at sentencing.          The

reported score of five-and-one-half for the second-degree-controlled-substance

conviction should have been five. But the district court determined that the one-half

point difference did not change appellant’s presumptive sentence of 98 months, and it

determined that the difference in criminal-history score from seven to six-and-one-half in

the fourth-degree-assault conviction was immaterial, because the discretionary range for

appellant’s sentence using either score was 17-22 months, and appellant was sentenced to

serve 22 months in prison concurrent with the other sentence.

      This reinstated appeal followed.




                                            4
                                    DECISION

I.    Postconviction relief

      “When a defendant initially files a direct appeal and then moves for a stay to

pursue postconviction relief, we review the postconviction court’s decisions using the

same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836

(Minn. 2012); State v. Petersen, 799 N.W.2d 653, 656 (Minn. App. 2011), review denied

(Minn. Sept. 28, 2011). We review the validity of a guilty plea de novo. State v.

Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

      There is no absolute right to withdraw a guilty plea. State v. Theis, 742 N.W.2d

643, 646 (Minn. 2007). After sentencing, a defendant may only withdraw a guilty plea

by establishing that withdrawal is necessary “to correct a manifest injustice.” Minn. R.

Crim. P. 15.05, subd. 1; Theis, 742 N.W.2d at 646. A manifest injustice is shown when a

guilty plea is not valid. Id. To be valid, a guilty plea “must be accurate, voluntary and

intelligent (i.e., knowingly and understandingly made).” State v. Ecker, 524 N.W.2d 712,

716 (Minn. 1994).

      Appellant argues that his plea was not knowingly or intelligently made because he

was not convicted of any sex offense, he denied that the second-degree-controlled-

substance offense had a sexual component, and he was not informed that, as a result of

his predatory-offender registration, (1) he would be labeled a sex offender by the DOC,

(2) he would be required to attend sex-offender treatment, (3) he would be subject to

sex-offender-specific conditions of release, (4) he would be subject to the




                                           5
community-notification process, and (5) he could potentially be referred for civil

commitment.

         The state argues, and the district court ruled, that the consequences of

predatory-offender registration are collateral consequences of the conviction, and

therefore appellant may not, because of those consequences, withdraw his plea, even if

they were unknown to him at the time.

         “The purpose of the requirement that the plea be intelligent is to insure that the

defendant understands the charges, understands the rights he is waiving by pleading

guilty, and understands the consequences of his plea.” State v. Trott, 338 N.W.2d 248,

251 (Minn. 1983). “‘Consequences’ refers to a plea’s direct consequences.” Raleigh,

778 N.W.2d at 96 (emphasis added). Conversely, “collateral consequences ‘are not

punishment’ but are ‘civil and regulatory in nature and are imposed in the interest of

public safety.’” State v. Crump, 826 N.W.2d 838, 842 (Minn. App. 2013) (quoting

Kaiser v. State, 641 N.W.2d 900, 905-07 (Minn. 2002)), review denied (Minn. May 21,

2013).

         Appellant argues that we should reject the direct- or collateral-consequence

distinction because that distinction rests on “shakier ground” post-Padilla. 559 U.S. at

365, 130 S. Ct. at 1481. Appellant argues that Padilla changes the analysis and renders a

plea unintelligent if a defendant is unaware of a consequence that is closely connected to

the criminal process. See id. (“We . . . have never applied a distinction between direct

and collateral consequences . . . . Whether that distinction is appropriate is a question we

need not consider in this case because of the unique nature of deportation.”); but see


                                             6
Sames v. State, 805 N.W.2d 565, 570 (Minn. App. 2011) (declining to extend Padilla

beyond deportation into the context of firearm possession, a collateral consequence);

Crump, 826 N.W.2d at 843 (declining to extend Padilla into the context of potential

future driving-while-intoxicated pleas).

       Here, there is no need to reach the question of whether Padilla applies to cases

beyond the context of immigration consequences. Appellant has failed to show that his

trial counsel was ineffective. See Padilla, 559 U.S. at 366-69, 130 S. Ct. at 1482-84

(applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), to Padilla’s

ineffective-assistance-of-counsel claim). Appellant was fully informed that he would be

required to register as a predatory offender because of the original charges in the

complaint. He was not only fully advised of the consequences of this requirement, Minn.

Stat. § 243.166, subd. 1b(a)(iii) (2014), but his attorney obtained a continuance to dispute

the registration requirement specifically because of these consequences. Moreover, as

part of his plea, appellant initialed a “Predatory Offender Notification Form.” That form

advised appellant of his duty to register for a minimum of 10 years, that he could have

stricter requirements if he was assigned a Level 2 or Level 3 classification pursuant to

Minn. Stat. § 244.052 (2014), and that he would have to disclose his registration status to

law-enforcement and other agencies that provided care for elderly and/or disabled

individuals. Appellant initialed next to the line stating “I understand that if I am civilly

committed pursuant to [Minn. Stat. § 253B.185] or a similar law of another state, I am

required to return four Verification Forms each year.” Therefore, appellant’s claims that




                                             7
he was unaware of the level-assignment, community-notification requirements, and the

possibility of civil commitment simply have no merit.

       This leaves only appellant’s arguments concerning the DOC’s treatment of him as

a sex offender and the requirement that he participate in an appropriate treatment

program as potential bases of relief. But the commissioner of corrections is specifically

authorized to order appellant to participate in the treatment program because appellant

meets the DOC’s definition of a sex offender. See Minn. Stat. § 241.67, subds. 1(1), 3

(2014); Roth v. Comm’r of Corrections, 759 N.W.2d 224, 228 (Minn. App. 2008) (citing

DOC Div. Directive 203.013, which defines a “sex offender” as “an offender who is

subject to predatory offender registration, or has a prior charge or conviction for an

offense that was sex related”).

       Appellant provides no statute or caselaw suggesting that an attorney has a duty to

describe all of the particulars of how the DOC will administer and require programming

while a client is in prison. Nor has appellant provided any expert opinion or other

evidence concerning the standard of care of an attorney regarding programming

requirements while the attorney’s client is in prison. Here, and regardless of whether the

DOC-programming implications are considered a “direct” or a “collateral” consequence

of his conviction, appellant has failed to demonstrate on this record that his attorney’s

performance was ineffective. Even if we apply the Strickland test to appellant’s lawyer’s

performance, there is no showing of ineffective assistance. Our review of the record

reveals that appellant’s trial counsel very thoroughly and competently represented

appellant.


                                            8
       The district court did not err in denying appellant’s petition to withdraw his plea.

II.    Criminal-history-score issues

       Under the Minnesota Sentencing Guidelines, a district court is to sentence an

offender based on a presumptive sentencing range determined by the severity level of the

offense and the offender’s criminal-history score. Minn. Sent. Guidelines 4 (2014); State

v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008). The offender’s criminal-history

score is calculated, in part, by assigning a point value to the offender’s prior felony

convictions. Minn. Sent. Guidelines 2.B.1 (2014).

      When a district court calculates an offender’s criminal-history score, it must

consider convictions from other states. Minn. Sent. Guidelines 2.B.5 & cmt. 2.B.502

(2014). The effect of an out-of-state conviction on an offender’s criminal-history score

generally depends on how the conviction would have been treated if the offense had

occurred in Minnesota. Id.; State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001). When a

monetary threshold determines the out-of-state offense classification, the equivalent

Minnesota offense is determined based on the monetary threshold in effect in Minnesota

when the out-of-state offense was committed. See Minn. Sent. Guidelines cmt. 2.B.502.

      An out-of-state conviction may be treated as a felony for Minnesota

criminal-history-score purposes only if the offense would be defined as a felony under

Minnesota law and the offender received a sentence that in Minnesota would constitute a

felony-level sentence. Minn. Sent. Guidelines 2.B.5.b. (2014). The state has the burden

of proving sufficient facts concerning an offender’s out-of-state conviction to warrant the

assigned points. State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). “The state


                                             9
must establish by a fair preponderance of the evidence that the prior conviction was valid,

the defendant was the person involved, and the crime would constitute a felony in

Minnesota.” Id. In determining whether an out-of-state conviction may be treated as a

felony in Minnesota, the district court may consider factors including the definition of the

offense and the sentence received. State v. Combs, 504 N.W.2d 248, 250 (Minn. App.

1993), review denied (Minn. Sept. 21, 1993).

       Here, the district court determined that the pre-sentence investigation report, upon

which the district court had relied at sentencing, erroneously assigned appellant a full

criminal-history point for a North Dakota felony. The conviction should not have been

assigned one point, because the offense would have been a gross misdemeanor had the

conviction been in Minnesota. The amount involved in the fraudulent transaction was

less than $150. Compare N.D. Cent. Code § 12.1-23-11 (2012) (providing that it is a

felony to use an individual’s debt card to take goods and services not in excess of $1,000

without authorization from that individual), with Minn. Stat. § 609.821, subds. 1, 2(1),

3(a)(1)(v) (2012) (providing that a similar offense is only a gross-misdemeanor if the

amount is less than $250). However, the district court concluded that this error had no

impact on appellant’s second-degree-controlled-substance sentence. Although appellant

was erroneously assigned a criminal-history score of five-and-one-half, he was sentenced

using a criminal-history score of five. See Minn. Sent. Guidelines cmt 2.B.102 (2014)

(stating that “an offender with less than a full point is not given that point.”)

       Concerning appellant’s challenge to his fourth-degree-assault sentence, the district

court determined that appellant’s criminal-history score should have been six-and-one-


                                              10
half instead of seven. The district court noted that the sentencing guidelines call for a

presumptive sentence of 19 months, with a discretionary range of 17 to 22 months, for a

fourth-degree-assault conviction and a criminal-history score of six or more. Minn. Sent.

Guidelines 4.A & 5.A. The district court concluded that appellant was not entitled to be

resentenced because his 22-month sentence was within the discretionary range using a

criminal-history score of either six-and-one-half or seven. Because the same sentencing

range would apply regardless of the half-point in question, appellant’s sentence would

not have been any different even if the correct criminal-history score had been used.

      On appeal, appellant agrees that the controlled-substance sentence is proper, but

argues that his assault sentence should be reduced to 19 months pursuant to the guidelines

because he only agreed to the plea based on his understanding that he would receive the

presumptive sentence.

      Despite the error in the initial computation of his criminal-history score, appellant

was given a presumptive sentence under the guidelines for both offenses. A presumptive

sentence is one that falls anywhere within the sentencing range provided by the

guidelines.   See Jackson, 749 N.W.2d at 359 n.2.              Using appellant’s correct

criminal-history score at the designated severity level for his offense of fourth-degree

assault, the presumptive range is 17-22 months under the guidelines, with 19 months

being the suggested “middle-of-the-box” sentence.       See Minn. Sent. Guidelines 4.A

(2014). Regardless of whether appellant’s criminal-history score was six-and-one-half or

seven, the presumptive-sentence range remained the same.          Id.   The district court

imposed a sentence at the top of that range. The 22-month prison term is a presumptive


                                            11
sentence, as called for by appellant’s plea agreement. The district court acted within its

discretion in concluding that appellant is not entitled to postconviction relief.

       Affirmed.




                                              12
