Mono v. State

• Decision Date: 14 November 2011
• Docket Number: A11-462
• Parties: Hernando Quintero Mono, petitioner, Appellant, v. State of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

Hernando Quintero Mono, petitioner, Appellant, v. State of Minnesota, Respondent.

A11-462

STATE OF MINNESOTA IN COURT OF APPEALS

November 14, 2011

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).

Affirmed

Worke, Judge

St. Louis County District Court

File No. 69-K4-96-600673

Eric L. Newmark, Richard Student, Gaskins Bennett Birrell & Schupp, Minneapolis, Minnesota (for appellant)

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

Mark S. Rubin, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, Duluth, Minnesota (for respondent)

Considered and decided by Stauber, Presiding Judge; Wright, Judge; and Worke, Judge.

UNPUBLISHED OPINION

WORKE, Judge

Appellant challenges the district court's denial of his petition for postconviction relief, in which he requested to withdraw his guilty plea to second-degree criminal sexual conduct, claiming that his attorney was ineffective for failing to advise him that he would be deported if he pleaded guilty. We affirm.

DECISION

On November 5, 1996, appellant Hernando Quintero Mono, a resident alien, pleaded guilty to second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (1996). In 2010, appellant petitioned for postconviction relief seeking to withdraw his guilty plea. The district court denied appellant's petition without an evidentiary hearing.

This court reviews the district court's denial of a postconviction petition without a hearing for an abuse of discretion. Chambers v. State, 769 N.W.2d 762, 764 (Minn. 2009). A district court must hold an evidentiary hearing unless "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 (2010). A hearing "is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief." Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). "Allegations in a postconviction petition must be more than argumentative assertions without factual support." Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007) (quotation omitted). The petitioner has the burden of establishing facts by a fair preponderance of the evidence that would warrant reopening the matter. Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).

Appellant sought to withdraw his guilty plea, claiming that his attorney was ineffective for failing to advise him that he would face mandatory deportation if he pleaded guilty. To withdraw a plea on the basis of ineffective assistance of counsel,appellant bears the burden of proving that (1) his counsel's representation fell below an objective standard of reasonableness and (2) but for the deficient performance, appellant would not have pleaded guilty and would have insisted on a trial. See State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). This court reviews a district court's decision to deny a plea withdrawal for an abuse of discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).

Appellant argues that his attorney fell below the standard of reasonableness established by the Supreme Court in Padilla v. Kentucky. 130 S. Ct. 1473 (2010). Padilla pleaded guilty to a deportable offense. Id. at 1478. But his attorney failed to advise him of the risk of deportation and, worse, also told Padilla that he did not have to worry about deportation because of the length of time he had lived in the United States. Id. The Supreme Court held that to provide constitutionally effective representation, an attorney must advise a client that his guilty plea carries a risk of deportation. Id. at 1486. The Court concluded that Padilla's attorney "could have easily determined that his plea would make him eligible for deportation simply from reading the text of the [relevant] statute, which . . . specifically command[ed] removal" for the offense to which Padilla pleaded guilty. Id. at 1483. The Court noted, however, that when deportation consequences are unclear or uncertain because the law "is not succinct and straightforward . . . a criminal defense attorney need do no more than advise . . . that pending criminal charges may carry a risk of adverse immigration consequences." Id.

The Immigration and Naturalization Service (INS) commenced removal proceedings against appellant under Section 240 of the Immigration and Nationality Act because of his aggravated-felony conviction and ordered his removal in March 2010. Appellant claims that his attorney could have merely read the text of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and advised appellant that his conviction would be classified as an "aggravated felony" and that persons convicted of "aggravated felonies" are subject to mandatory removal.

In 1996 the IIRIRA's definition of an "aggravated felony" was amended to include "sexual abuse of a minor." Lovan v. Holder, 574 F.3d 990, 992 (8th Cir. 2009). The amendment applied to convictions prior to the amendment's enactment. Id. Thus, appellant pleaded guilty to an aggravated felony that would require removal from the United States. However, at the time of appellant's guilty plea, it was uncertain whether a particular form of relief from removal or deportation was available to him. See e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 295, 121 S. Ct. 2271, 2276 (2001) (stating that a particular section of the Immigration and Nationality Act of 1952 permitted resident aliens to apply for waiver from deportation). Therefore, although appellant's attorney could have determined that an aggravated-felony conviction could lead to deportation, the actual effect on appellant's immigration status was unclear. Appellant fails to show that his attorney performed below an objective standard of reasonableness because, as the...