This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Hiep Van Nguyen, a/k/a Heip Van Nguyen,

Filed February 22, 2000
Harten, Judge

Otter Tail County District Court
File No. K9-89-315

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and

David J. Hauser, Otter Tail County Attorney, Karen A. Bengtson, Assistant County Attorney, Courthouse, Fergus Falls, MN 56537 (for respondent)

David J. Chapman, Gjesdahl & Deitz, P.L.L.P., 107 North Eighth St., Fargo, ND 58102 (for appellant)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant pleaded guilty to second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1988). Appellant brought a motion to withdraw his guilty plea; the district court denied his motion. He challenges the denial, arguing that the district court abused its discretion by not correcting a manifest injustice. Because we see no abuse of discretion, we affirm.


On May 22, 1989, appellant Hiep Van Nguyen, a/k/a Heip Van Nguyen, a resident alien from Vietnam, pleaded guilty to one count of second-degree criminal sexual conduct. He was sentenced to a stayed 21-month sentence with 15 years’ probation. He satisfied the conditions of his probation and was released from probation less than eight years later.

In April 1999, the Immigration and Naturalization Service initiated deportation proceedings against appellant. The basis for deportation was appellant’s second-degree criminal sexual conduct conviction.

Appellant brought a motion to withdraw his guilty plea. He claimed that manifest injustice required withdrawal of his plea because when he pleaded guilty he was not told about possible deportation problems resulting from his plea, and that deportation would cause hardship for his family and friends. The district court denied the motion. This appeal followed.


A criminal defendant does not have an absolute right to withdraw a guilty plea. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). The decision whether to permit withdrawal of a guilty plea will be reversed only if the district court clearly abused its discretion. Id. The appellant bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).

Appellant argues that the district court abused its discretion when it rejected his motion to withdraw his guilty plea to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1 provides:

The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

Id. If a guilty plea is not "accurate, voluntary, and intelligent," manifest injustice results, and the plea may be withdrawn. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

The main issue in this appeal is whether deportation is a direct or collateral consequence of pleading guilty. The law distinguishes between direct and collateral consequences of pleading guilty, limiting manifest injustice to misunderstanding of direct consequences. See Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding that requirement that plea be intelligent refers to direct consequences of pleading guilty). Direct consequences are "those which flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed and the amount of any fine." Id. Ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea. Id.

In Alanis, the supreme court held that deportation is not a direct consequence of a guilty plea because deportation is not definite, immediate, or automatic. Id. at 578. Accordingly, where a defendant does not understand deportation consequences, a postconviction court does not abuse its discretion in denying withdrawal of a guilty plea to correct manifest injustice. Id. at 579; see also Berkow v. State, 583 N.W.2d 562, 563-64 (Minn. 1998) (no requirement that defendant be informed of possible deportation).

Appellant argues that Alanis does not apply here, because deportation is a direct consequence for a permanent resident who has pleaded guilty to an "aggravated felony." Congress has attached the consequence of deportation to those resident aliens convicted of aggravated felonies. 8 U.S.C. § 1227 (a)(2)(A)(iii) (1999). Under this section, "[a]ny alien in and admitted to the United States shall, upon order of the Attorney General, be removed" if he is convicted of an aggravated felony. The definition of aggravated felon includes "sexual abuse of a minor." Id. at § 1101 (a)(43)(A) (1999). This provision applies regardless of whether the conviction occurred prior to the amendment. Id. at § 1101(a)(43) (1999).

Appellant attempts to distinguish his case from Alanis. The Alanis court stated that deportation is a collateral consequence because,

[b]efore a resident alien such as Alanis can be deported, the INS must exercise its discretion to commence deportation proceedings and, prior to deportation, there are various administrative procedures which must be followed.

583 N.W.2d at 578-79. Appellant has different procedures he can use to challenge his deportation within the federal system. Therefore, appellant’s ignorance of deportation consequences does not provide this court with a basis for reversing the district court’s denial of postconviction relief.[1]

Appellant also argues that the district court improperly concluded that it would intrude upon the exclusive power of Congress if it granted withdrawal of appellant’s guilty plea. The decision of the district court was based upon the ruling in Alanis. Once the withdrawal of a guilty plea is considered by the district court the remaining question of deportation is left to the federal government. See De Canas v. Bica, 424 U.S. 351, 354, 96 S. Ct. 933, 936 (1976) ("[p]ower to regulate immigration is unquestionably exclusively a federal power.").


[1] Appellant argues in the alternative that even if the immigration consequences did not justify withdrawal of his guilty plea, the district court nevertheless should have permitted him to withdraw his plea based upon the hardship his removal would have on his family and friends. There is no caselaw to support appellant's assertion that manifest injustice can result from family hardship caused by deportation. Therefore, this argument is without merit.