State v. Yekeh
| Decision Date | 25 June 2012 |
| Docket Number | A10-1374 |
| Parties | State of Minnesota, Respondent, v. Johnson Nypea Yekeh, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Pennington County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Alan G. Rogalla, Pennington County Attorney, Kristin J. Hanson, Assistant County
Attorney, Thief River Falls, Minnesota (for respondent)
P. Chinedu Nwaneri, Nwaneri Associates, PLLC, Eagan, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Willis, Judge.*
UNPUBLISHED OPINION
Appellant challenges the district court's denial of his motions to withdraw his guilty plea, arguing that the district court deliberately disregarded his plea agreement and that he received ineffective assistance of counsel. Because the district court did not err in denying appellant's plea-withdrawal motions, we affirm.
Appellant Johnson Nypea Yekeh was charged with fifth-degree criminal sexual conduct in 2007. In exchange for Yekeh's guilty plea, the state agreed to recommend a stayed sentence of 360 days and to dismiss of a separate misdemeanor dishonored-check charge. The plea agreement was stated on the record at Yekeh's plea hearing. At the plea hearing, Yekeh's counsel, Kip Fontaine, stated that Yekeh expected to be placed on probation, and that he would be required to make restitution payments, to remain law-abiding, and to complete a sex-offender assessment. Counsel also stated that Yekeh would be subject to a no-contact order.
During the plea hearing, Yekeh acknowledged that he understood the contents of his petition to plead guilty and that he and Fontaine had discussed the possible immigration consequences of the plea. Specifically, Yekeh acknowledged that "by pleading guilty to this crime, . . . it could result in [him] being deported or told to leave the United States" and that nobody could "predict what [would] happen to [him] if [he] plead[ed] guilty" as far as immigration consequences were concerned. Yekeh also acknowledged that Fontaine arranged the assistance of an immigration-law attorney,Richard Breitman, that he and Fontaine talked to Breitman, and that Breitman provided advice regarding the potential immigration consequences of Yekeh's guilty plea. Yekeh indicated that he, Fontaine, and Breitman had discussed ways to minimize the potential ramifications of a guilty plea in this case. But Yekeh acknowledged that "there [were] no guarantees about the outcome of any immigration action against [him]." The district court noted Yekeh's guilty plea at the plea hearing, but it did not accept the plea at that time. The matter was scheduled for a sentencing hearing, and the district court ordered a presentence investigation.
At the sentencing hearing, the district court expressed concerns regarding the contents of Yekeh's presentence-investigation report. The report indicated that Yekeh had "recant[ed]" his plea of guilty and said that "he just made the confession in this case to law enforcement so he could go home." The district court stated that it wanted to know whether Yekeh wished to withdraw his guilty plea, and the court recessed the hearing for approximately one hour so that Yekeh could talk with his attorney. When the hearing resumed, Fontaine stated that "after some contemplation, [Yekeh] has determined that he wishes to proceed with sentencing here this afternoon." Fontaine acknowledged that at one point, Yekeh wanted to withdraw his plea, but that "after further contemplation, discussion, and visiting with [his] wife, [he wanted] the judge to accept [the] guilty plea."
The state requested that the court follow the plea agreement and "also order [Yekeh] to complete the booking process across the street." The district court accepted Yekeh's guilty plea and sentenced him to "one year in the Pennington County jail,"stayed for two years, subject to standard probationary conditions. Yekeh did not object to the imposition of a 365-day sentence, which was inconsistent with the agreed-upon 360-day sentence. The state dismissed the misdemeanor dishonored-check charge. After the hearing, the Department of Homeland Security took Yekeh into federal custody and subsequently ordered his removal from the United States on the ground that he had committed an "aggravated felony."
Yekeh sought review in this court, arguing that he should be allowed to withdraw his guilty plea. State v. Yekeh, No. A09-468, 2009 WL 2747812, at *1 (Minn. App. Sept. 1, 2009). Because Yekeh had not moved to withdraw his plea in district court, we declined to address Yekeh's arguments and remanded the case for Yekeh to make an appropriate motion in district court. Id. at *2.
On remand, Yekeh moved to withdraw his plea, arguing that his plea of guilty was based on a plea agreement in which he and the state had agreed to a 360-day stayed sentence. Yekeh argued that he did not agree to a sentence of 365 days and because his plea agreement was breached, he should be allowed to withdraw his plea. The district court denied Yekeh's motion. The district court reasoned that Yekeh's sentence resulted from a mistake or a misstatement of the plea agreement by the court and that the appropriate remedy was for the district court to correct his sentence. The district court therefore amended Yekeh's sentence to conform to the plea agreement, reducing his stayed jail term to 360 days.
Yekeh also requested relief on the ground of ineffective assistance of counsel. The district court refused to address that claim, reasoning that it was beyond the scope ofthis court's remand. The district court instructed Yekeh that he must raise his ineffective-assistance-of-counsel challenge in a separate motion or in a petition for postconviction relief. Yekeh appealed the district court's order denying his motion to withdraw his guilty plea, and this court stayed the appeal to allow Yekeh to pursue his ineffective-assistance-of-counsel claim in district court.
Yekeh filed a second motion to withdraw his plea, asserting ineffective assistance of counsel, and the district court held an evidentiary hearing on the motion. At the hearing, Yekeh testified that he talked with Fontaine and immigration attorney Breitman about the possible immigration consequences of a guilty plea. Yekeh testified that Breitman told Fontaine not to take a plea deal and that Fontaine became upset. Yekeh also testified that Breitman advised that the dishonored-check charge would have immigration consequences but that the criminal-sexual-conduct charge would not.
Fontaine also testified at the hearing. According to his testimony, Fontaine consulted with Breitman because he knew that Yekeh was not a United States citizen. Breitman informed Fontaine that a conviction for issuance of a dishonored check could have adverse immigration consequences and that he should try to obtain a sentence of less than one year. Regarding the criminal-sexual-conduct charge, Breitman advised Fontaine not to refer to the age of the victim during the plea. Breitman told Fontaine that "a colleague of his had successfully argued that such a plea was not an aggravated felony under federal immigration law." But Breitman did not say whether the victim was a minor in that case. According to Fontaine, because the victim's age was not an essential element of the fifth-degree criminal-sexual-conduct offense, it was not a part of thefactual basis for Yekeh's guilty plea.1 Fontaine denied that Breitman said that Yekeh should not accept a plea agreement. Fontaine also testified that during the plea and sentencing hearings, he told Yekeh that Yekeh could rip up the plea petition and proceed to trial.
The district court denied Yekeh's second motion to withdraw his plea. This appeal follows.
"At any time the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice exists if a guilty plea is not valid. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970); State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). A defendant bears the burden of showing his plea was invalid. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). "Assessing the validity of a plea presents a question of law that we review de novo." State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
Yekeh argues that plea withdrawal is necessary to correct a manifest injustice, because the district court deliberately disregarded his plea agreement and sentenced himto a stayed sentence of 365 days instead of 360 days. "When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quotation omitted). "If a promise within a plea agreement is not fulfilled, the defendant cannot be said to have voluntarily entered into the plea agreement." Carey v. State, 765 N.W.2d 396, 400 (Minn. App. 2009), review denied (Minn. Aug. 11, 2009). Therefore, "[w]hen a guilty plea is induced by unfulfilled or unfulfillable promises, the voluntariness of the plea is drawn into question, and due process considerations require that the defendant be given the opportunity to withdraw his plea." State v. Wukawitz, 662 N.W.2d 517, 526 (Minn. 2006) (citation omitted).
Although a plea is not valid if it is based on a promise that is subsequently breached, in this case, the promise of a 360-day sentence was not intentionally breached by the state or rejected by the district court. The...
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