Hennepin County District Court File No. 27-CR-06-012974
The opinion of the court was delivered by: Cleary, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Hooten, Presiding Judge; Cleary, Judge; and Smith, Judge.
UNPUBLISHED OPINION CLEARY, Judge
Appellant challenges the denial of his petition for post-conviction relief seeking to withdraw his guilty plea to misdemeanor domestic assault, arguing that his plea was not intelligent because he was not advised of the immigration consequences of his plea. Appellant asserts that the state waived the statute of limitations in Minn. Stat. § 590.01, subd. 4 (2012), and alternately, that an exception to the two-year statute of limitations applies. We affirm.
Hennepin County charged appellant, a Liberian citizen, with fifth-degree domestic assault, in violation of Minn. Stat. § 609.2242, subd. 1 (2004), for an offense that occurred on February 23, 2006. On June 28, 2006, the date set for trial, appellant's privately-retained counsel did not appear. Appellant asked for a public defender, but the district court told him he would have to proceed without counsel because his case was on the calendar for that day. The district court also advised appellant to talk to the prosecutor about resolving the matter because the victim's injuries-a perforated eardrum-corroborated her description of what happened, so "if you went before a jury it's going to be hard for you to disprove something like that, you know."
After the jury had been called, appellant and the prosecuting attorney discussed plea negotiations. Appellant decided to plead guilty with the agreement that he would be sentenced according to the probation report's recommendation. Appellant signed a plea petition and he waived his rights to representation by counsel and to have a trial on the record. Appellant also acknowledged that the assault charge was subject to enhancement. Appellant responded affirmatively to the prosecuting attorney's questions concerning a factual basis for the plea. The district court accepted the plea.
Sentencing was held on July 10, 2006. Based on the probation officer's recommendation, the court stayed imposition of the sentence for two years under Minn. Stat. § 609.135 (2004) and placed appellant on probation. Appellant appeared for a probation violation hearing on February 23, 2007. The district court found that he violated designated conditions of probation and revoked the stay of imposition. The district court sentenced appellant to 90 days in jail, stayed 75 of the 90 days for two years with credit for 15 days, suspended the fine, and continued the previously-ordered probation conditions.
In February 2012, after appellant learned that the federal government had initiated removal proceedings against him, he filed a post-conviction petition seeking to withdraw his guilty plea to the domestic assault charge. The state opposed the petition, arguing that it was untimely under the two-year time bar in Minn. Stat. § 590.01, subd. 4(a)(1), and that appellant had not established that his petition met an exception to the time bar. Appellant responded that the state waived the statute of limitations argument because the state filed its answer over a month late. Alternately, appellant argued that two exceptions to the two-year time bar apply. First, his petition meets the exception set out in subdivision 4(b)(3) because Padilla v. Kentucky, 130 S. Ct. 1473 (2010),reversed state law that had previously held that the immigration consequences of a guilty plea were collateral.*fn1 Second, his claim that he was not advised of the immigration consequences of his plea meets the interests-of-justice exception under subdivision 4(b)(5).
The district court denied appellant's petition for post-conviction relief because it was untimely. This appeal followed.
When reviewing a post-conviction court's decision, "we examine only whether the post-conviction court's findings are supported by sufficient evidence." Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). We "will reverse a decision of a post-conviction court only if that court ...