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Lunan v. State

Court of Appeals of Minnesota

July 22, 2013

Alphanso Michael Lunan, petitioner, Appellant,
v.
State of Minnesota, Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CR-03-013225.

Herbert A. Igbanugo, Igbanugo Partners Int'l Law Firm, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Kirk, Judge.

WORKE, Judge

Appellant challenges a postconviction order denying his petition to withdraw his guilty plea to fifth-degree controlled substance crime and his request for an evidentiary hearing on the petition. Because the appeal is both time barred and procedurally barred, and because the district court did not abuse its discretion by denying appellant an evidentiary hearing, we affirm.

FACTS

On April 24, 2003, appellant Alphanso Michael Lunan pleaded guilty to felony fifth-degree controlled substance offense (possession), under Minn. Stat. § 152.025, subd. 2(1) (2002). Appellant's plea petition states that the state agreed to a stay of adjudication if he agreed to plead guilty. The district court found appellant guilty and stayed entry of judgment for three years so long as appellant complied with terms of probation, consistent with Minn. Stat. § 152.18, subd. 1 (2002). Although both parties refer to appellant's "conviction" in their appellate briefs, but the district court's order denying appellant's first postconviction appeal states that appellant "satisfied the conditions of the stayed sentence, " and that "[e]ven if the claims did not arise until [appellant] satisfied his terms of the stay of adjudication, the charge was dismissed on April 24, 2006, approximately four years and nine months before [appellant] filed the [postconviction] motion." [1]

Seven years and nine months after pleading guilty, on January 24, 2011, appellant moved the district court to vacate his conviction, claiming that it resulted from "an illegal seizure and an illegal search of [appellant's] person and his vehicle, and his guilty plea was not knowing, voluntary, or intelligent." As another ground for the motion, appellant asserted that a proper foundation was not laid for entry of his guilty plea and that he was unaware of the civil consequences of pleading guilty. In his affidavit attached to the motion, appellant stated that his attorney told him that because he was "charged with a 5thdegree misdemeanor, " there would be no "civil repercussions" to pleading guilty, such as inability to obtain employment or join the military.

The district court denied appellant's motion to withdraw his plea, construing the motion as a postconviction petition and denying the motion as untimely under Minn. Stat. § 590.01, subd. 4(a) (2010), and under the standard for plea withdrawals, Minn. R. Crim. P. 15.05, subd. 1. The court ruled that appellant failed to demonstrate that his plea was not knowing, intelligent, or voluntary, and that appellant waived any Fourth Amendment search-and-seizure challenge by entering a guilty plea. Appellant did not seek further review of that order.

In a second postconviction petition filed less than a year later, appellant again moved the district court to withdraw his guilty plea and to vacate his "conviction" under Minn. Stat. § 590 (2010), because "he was never informed about the brutal immigration consequences of his guilty plea." In addition to the arguments he raised in his first postconviction petition, appellant also claimed that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), and Padilla v. Kentucky, 130 S.Ct. 1473, 1482, 1486 (2010) (holding that defense counsel's failure to advise a defendant of deportation consequences of pleading guilty violates the Sixth Amendment). In the affidavit attached to his second postconviction petition, appellant states that his "conviction"

makes me ineligible for a removal of the conditions on the permanent resident status that was granted to me back in 1998, which expired in 2000. Because my criminal defense counsel did not advise me of the immigration consequences of my guilty plea and I was subjected to an illegal search and seizure, I plead to the Court to vacate my wrongful conviction.

In a second order denying postconviction relief, the district court ruled that appellant failed to offer facts that would demonstrate ineffective assistance of counsel, because appellant conviction became final before Padilla was released and appellant received effective counsel at the time of his ...


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