This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ignatius Umeadi Okonkwo,
Filed March 19, 2002
Stearns County District Court
File No. K187150
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, Suzanne Bollman, Assistant County Attorney, 705 Courthouse Square, Administration Center, RM 448, St. Cloud, MN 56303-4773 (for respondent)
Ignatius Umeadi Okonkwo, Reg. No. 16057-265, Federal Detention Center, P.O. Box 5010, Oakdale, LA 71463 (pro se appellant)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant, a Nigerian national, challenges the district court’s denial of his petition for postconviction relief in which he sought to withdraw his guilty plea on the grounds that he was denied effective assistance of counsel and that he was not informed of his right, under the Vienna Convention on Consular Relations, to consult with the Nigerian consulate. Because we conclude that appellant was not denied effective assistance of counsel and that he has not shown that the violation of his right to consult with the Nigerian consulate was prejudicial, we affirm.
In January 1987, appellant Ignatius Okonkwo was charged with two felony counts of second-degree assault and one felony count of terroristic threats. He pleaded guilty to misdemeanor terroristic threats, served an executed sentence of 45 days in jail, and, in May 1988, was discharged from probation.
Okonkwo petitioned for postconviction relief in February 2001, at which time the Immigration and Naturalization Service (INS) had commenced deportation proceedings against him, which, the district court found, was based on his terroristic-threats conviction. He argued that he was denied effective assistance of counsel at the time of his guilty plea, claiming that defense counsel assured him that he would not be deported as a result of his conviction and that he relied on that assurance in entering his guilty plea. He also claimed that he was never informed of his right to contact the Nigerian consulate.
The district court denied Okonkwo’s petition and his motion for reconsideration. This appeal follows.
D E C I S I O N
A petitioner seeking postconviction relief must establish, by a fair preponderance of the evidence, facts that warrant reopening a case. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). This court reviews a postconviction court’s factual findings to determine whether there is sufficient evidence to sustain the findings. Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). But this court reviews de novo a postconviction court’s determination of legal issues. See Doan v. State, 306 Minn. 89, 91-92, 234 N.W.2d 824, 826-27 (1975) (upholding factual findings when evidence existed to support them but independently reviewing legal determination based on found facts). Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).
Okonkwo argues that he was denied effective assistance of counsel at the time of his guilty plea. A defendant who claims ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s defective performance, the outcome of the proceedings would have been different. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). On review, there is a strong presumption that counsel acted competently. Dukes, 621 N.W.2d at 252.
Okonkwo does not dispute the district court’s finding that he was aware of the possible immigration consequences of entering a guilty plea. But he asserts, in essence, that (1) defense counsel assured him that he would not be deported as a result of the guilty plea; (2) his decision to plead guilty relied on this assurance; (3) changes in federal immigration law in 1996 require mandatory deportations of immigrants convicted of certain crimes, including the crime to which he pleaded guilty; and (4) although the assurance was based on counsel’s correct understanding of immigration law at the time of the plea, counsel knew or should have known that future changes in the law might result in his deportation. Therefore, Okonkwo argues, defense counsel provided him with ineffective assistance.
The district court did not make a finding on whether defense counsel represented to Okonkwo that he would not be deported. But, assuming that defense counsel did make such an assurance, the record shows that the assurance would have to have been made in reference to the possible immigration consequences at the time of the guilty plea. After Okonkwo was charged in 1987, the INS informed Stearns County authorities that it would hold a deportation hearing based on his alleged violation of his foreign-student status. At the plea hearing, defense counsel told the district court that Okonkwo knew about the deportation hearing because he had received a notice and that he was represented by an attorney on that matter; Okonkwo acknowledged that “this incident has led me into immigration problems.” The INS held a deportation hearing but declined to deport him.
We conclude that defense counsel’s inability to foresee what the precise state of immigration law would be in 1996, nearly a decade after the 1987 plea hearing, does not constitute ineffective assistance of counsel. For counsel’s assistance to be ineffective, counsel must make “errors so serious that [he or she] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Race, 383 N.W.2d 656, 663 (Minn. 1986) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Here, with defense counsel’s assistance, Okonkwo entered a guilty plea voluntarily and with full knowledge of the possible immigration consequences at the time the plea was entered. Okonkwo is not entitled to postconviction relief on the ground that he was denied effective assistance of counsel.
Okonkwo contends that his right to consult with the Nigerian consulate was violated and that the violation was prejudicial. The Vienna Convention requires that foreign nationals who are arrested must be advised of their right to consult consular officials. Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36(1)(b), 21 U.S.T. 77, 100-01. To obtain relief under the Vienna Convention, a foreign national must show that its violation resulted in prejudice. State v. Miranda, 622 N.W.2d 353, 356 (Minn. App. 2001).
Although Okonkwo was not informed of his right to consult with the Nigerian consulate, he has not shown that this violation was prejudicial. He claims only that “the Nigerian Embassy could have informed him directly as to U.S. immigration law and policy.” But Okonkwo was aware of possible immigration consequences at the time of the guilty plea and was represented by defense counsel during the plea hearing and sentencing. Because Okonkwo has not shown that any consular assistance would have produced an outcome more favorable to him, we conclude that he is not entitled to relief under the Vienna Convention.
The state argues that Okonkwo’s petition to withdraw his guilty plea is untimely. In light of our analysis and because the state did not raise this issue before the district court, we need not address this argument. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate court generally will not consider matters not argued in the district court).
We note, nevertheless, that Okonkwo requested withdrawal of his guilty plea nearly 14 years after it was entered and nearly 13 years after he served his sentence and was discharged from probation. The state would suffer substantial prejudice if it were required to try this case. See State v. Lopez, 379 N.W.2d 633, 637 (Minn. App. 1986) (stating that court must consider prejudice to state resulting from granting of motion to withdraw guilty plea “as a result of the defendant’s untimely request to stand trial”), review denied (Minn. Feb. 14, 1986).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.