Tindi v. State

Wilson Nduri Tindi, petitioner, Appellant, v. State of Minnesota, Respondent.

A17-0724

STATE OF MINNESOTA IN COURT OF APPEALS

December 11, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Cleary, Chief Judge

Hennepin County District Court

File No. 27-CR-14-35561

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and Reyes, Judge.

UNPUBLISHED OPINION

CLEARY, Chief Judge

In this appeal from an order denying postconviction relief, appellant Wilson Nduri Tindi challenges the district court's denial of his postconviction petition, arguing that he received ineffective assistance of counsel because his trial attorney failed to warn him of the immigration consequences of his guilty plea, and that the district court violated Minn. R. Crim. P. 15.01 by failing to warn him of any immigration consequences during the plea hearing. Because we conclude that the immigration consequences of appellant's guilty plea were not truly clear and because the plea petition warned appellant of the potential immigration consequences, we affirm.

FACTS

On November 16, 2015, appellant, a native of Kenya and a permanent resident of the United States, pleaded guilty to one count of criminal sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345, subd. 1(d) (2014).

On the way to the plea hearing, appellant asked his attorney about the immigration consequences of his plea. Appellant's attorney replied that he was unsure of the consequences because he was not an immigration attorney.

During the plea hearing, appellant's attorney reviewed with him a four-page plea petition outlining his rights and waivers. Appellant testified that he reviewed the petition line-by-line with his attorney who answered his questions, and that he understood everything his attorney explained to him. Appellant's signed plea petition specificallyprovided: "My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation . . . ."

The district court accepted appellant's guilty plea and sentenced him according to the plea agreement. The Department of Homeland Security then commenced the deportation process and an immigration judge sustained appellant's removal. Appellant filed a postconviction motion in the district court seeking withdrawal of his guilty plea based on the ineffective assistance of counsel and the district court's violation of rule 15.01.

At the hearing, the district court denied appellant's postconviction motion, finding that appellant's attorney was not required to provide him with heightened immigration warnings because the immigration consequences of appellant's guilty plea were not truly clear. The district court did not address appellant's rule 15.01 violation allegation. This appeal follows.

DECISION

I. Ineffective Assistance of Counsel

"We review a denial of a petition for postconviction relief . . . for an abuse of discretion. A postconviction court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (citations and quotations omitted). In reviewing a postconviction court's denial of relief, we will consider the court's factual findings that are supported in the record, conduct a de novo review of the legal implication of those facts on the ineffective assistance claim, and either affirm the court's decision or conclude that thecourt abused its discretion because postconviction relief is warranted. State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).

Appellant contends that his trial counsel was ineffective because he failed to do any research or provide any advice regarding the immigration consequences of his plea. The state contends that appellant's trial counsel was not required to provide him with heightened immigration warnings because the immigration consequences of appellant's guilty plea were not truly clear. The district court determined that the immigration consequences of appellant's guilty plea were not truly clear because fourth-degree criminal sexual conduct does not contain a "use of force" element. We agree that the immigration consequences were not truly clear.

When an ineffective-assistance-of-counsel claim is properly raised in a direct appeal, we examine the claim under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). The defendant must prove: (1) "that his counsel's representation 'fell below an objective standard of reasonableness;'" and (2) "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reviewing court need not analyze both elements of the test if either one is determinative. Staunton v. State, 784 N.W.2d 289, 300 (Minn.2010). Here, we need only consider the first prong as appellant received reasonable representation.

A. Deportation Consequences

When the immigration consequences of a defendant's guilty plea are clear, trial counsel has a duty to inform her client as to those consequences and the failure to do so renders counsel's assistance ineffective. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S. Ct. 1473, 1483 (2010). But, "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S. Ct. at 1483.

"It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation." Id. at 371, 130 S. Ct. at 1484. Under Padilla, "criminal-defense attorneys must take some affirmative steps before allowing a noncitizen client to accept a plea deal. First, at a minimum, an attorney must review the relevant immigration statutes to determine whether a conviction will subject the defendant to a risk of removal from the United States." Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017).

Padilla and Sanchez proclaim a criminal-defense attorney's threshold duty to review the applicable immigration statutes to determine whether the law is truly clear at the time a defendant pleads guilty. The record here is devoid of evidence showing whether appellant's trial counsel did so. It is unreasonable for a criminal-defense attorney to fail to conduct research to determine if her client will be deported upon pleading guilty, especiallyafter her client specifically inquires about it. However, the first Strickland prong is not satisfied here because the immigration consequences of appellant's guilty plea were not truly clear.

While trial counsel has a duty to review the applicable immigration statutes, Padilla failed to resolve whether she is obligated to review only the statutes (the strict interpretation), or whether she must also review relevant administrative interpretations and caselaw (the expansive interpretation). Sanchez, 890 N.W.2d at 721. Sanchez did not determine which interpretation is binding in Minnesota, but the court suggested that the issue need not be answered when the immigration consequences of a guilty plea are not truly clear under either view. Id. at 722. As in Sanchez, the immigration consequences here were not truly clear under either view.

"Under the strict interpretation of Padilla, an attorney representing a noncitizen defendant must only review the relevant immigration statutes and then advise his or her client about the immigration consequences of a plea." Id. (citing Padilla, 559 U.S. at 368-69, 130 S. Ct. at 1473).

The district court identified 8 U.S.C. § 1227 (2012), which outlines a variety of crimes that subject aliens to deportation, as applicable to appellant, In particular, the statute provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The statute clearly subjects aliens convicted of aggravated felonies to deportation. But the definition of "aggravated felony" is less clear. "Aggravated felony" is broadly defined in 8 U.S.C. § 1101(a)(43)(2012) and includes many qualifying acts. Most applicable to appellant's case is "a crime of violence" which is further defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (2012); 8 U.S.C. § 1101(a)(43)(F) (2012). "Physical force" is not defined.

At the time of appellant's crime, Minnesota law provided that "[a] person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if any of the following circumstances exists: . . . the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless." Minn. Stat. § 609.345, subd. 1(d). "Sexual contact" for purposes of appellant's crime includes five different variations of touching intimate...