This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed November 26, 2002
Robert H. Schumacher, Judge
Dissenting, Klaphake, Judge
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Anwar Nagi Al-Shormani claims the district court erred by refusing to vacate his conviction on the grounds of ineffective assistance of counsel or to avoid manifest injustice, and that the district court should have granted him a hearing on this issue. We affirm.
On September 20, 2000, an 18-year-old woman called the Minneapolis police to report seeing a man in downtown Minneapolis who she claimed had solicited and assaulted her the previous day. The man was arrested and identified as Al-Shormani. He had a 1998 conviction in Dakota County for fifth-degree criminal sexual conduct. Al-Shormani was charged with solicitation, inducement and promotion of prostitution, and criminal sexual conduct in the fifth degree.
Al-Shormani, after consultation with his attorney, decided to waive his right to a jury trial and submitted the case to the court alone on the facts contained in the police report and complaint. The report included Al-Shormani's version of the events – that the young woman actually asked him for money and then offered to have sex with him for money. The court found Al-Shormani guilty on March 19, 2001. The court stayed imposition of sentence, and placed him on probation for three years.
Sometime after his conviction, the Immigration and Naturalization Service learned of Al-Shormani's legal problems. Al-Shormani contends that the INS is considering deporting him under its authority to do so at its discretion pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(2001) and/or 8 U.S.C. § 1227(a)(2)(A)(ii)(2001). He then filed a petition for postconviction relief under Minn. Stat. § 590.01 (2000). The state responded in writing opposing Al-Shormani's petition. The district court did not grant a hearing but denied the petition by order.
Upon review, this court affords great deference to the post-conviction court's decisions, and those decisions will not be disturbed absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). "[A] postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex. rel. Gray v. Tabash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted).
1. Al-Shormani contends that he was denied due process because of ineffective assistance of counsel, claiming his attorney failed to advise him that his conviction could lead to deportation. The Minnesota Supreme Court has unequivocally stated that defense counsel's failure to inform the defendant of the possibility of deportation as a result of a conviction from a guilty plea does not render that plea ineffective on the grounds of ineffective assistance of counsel. Berkow v. State, 583 N.W.2d 562, 563-64 (Minn. 1998); Alanis v. State, 583 N.W.2d 573, 578-79 (Minn. 1998).
In those cases, the supreme court determined that the risk of deportation is a "collateral" as opposed to "direct" consequence of the conviction. Berkow, 583 N.W.2d at 563-64; Alanis, 583 N.W.2d at 578-79. Because it is a collateral consequence, defense counsel's failure to inform Al-Shormani of this possible repercussion of the conviction does not render the conviction invalid due to ineffective assistance of counsel. Berkow, 583 N.W.2d at 563-64; Alanis, 583 N.W.2d at 579.
2. Al-Shormani alleges that his conviction must be set aside to avoid manifest injustice. In Alanis and Berkow, the supreme court held that the district courts were not required to vacate the convictions to avoid manifest injustice even though the defendants were not aware of the possible consequence of deportation. Berkow, 583 N.W.2d at 563-64; Alanis, 583 N.W.2d at 579. In those cases, the defendant had actually pleaded guilty to the charges. As such, Alanis and Berkow argued that their pleas were not "accurate, voluntary, and intelligent," and should be withdrawn. The supreme court disagreed, deciding that the pleas could stand. Berkow, 582 N.W.2d at 563-64; Alanis, 583 N.W.2d at 579.
In the present case, Al-Shormani did not plead. Instead, he had a trial. He now contends that the court trial on stipulated facts amounts to a guilty plea. Even if this were accurate, the Alanis and Berkow decisions defeat Al-Shormani's argument. In those cases, the defendants had in fact pleaded guilty, yet the convictions stood. Al-Shormani had a trial. He could have opted for a jury trial; he and his attorney made the strategic decision to have a trial before the court alone.
Al-Shormani claims that he may be subject to torture or even execution if he is deported to Yemen. Analyzing these claims and determining the proper course of action is appropriately left to the discretion of the INS. Al-Shormani is vague about the actual consequences of his return to Yemen, listing only possible outcomes ranging from execution to a decrease in the quality of medical care. He also references a variety of problems with which Yemen struggles, but it is unclear how this has more than peripheral relevance to the legal issues on appeal. In short, the state courts have always left the deportation issues to the federal agencies authorized to deal with them. See Berkow, 583 N.W.2d at 564; Alanis, 583 N.W.2d at 579.
3. Al-Shormani also alleges he was denied due process because the district court did not allow a hearing on his postconviction petition. This argument was addressed and dismissed in Alanis, which held that the district court did not abuse its discretion in refusing to hold a hearing. Id. at 579. The Alanis court noted that a hearing is required only when "there are disputed material facts which must be resolved to get to the merits of the postconviction claims." Id.
Rather than pointing to any disputed material facts, Al-Shormani has instead pointed to disputed legal theories, arguing his constitutional rights were violated based upon the undisputed events occurring prior to the postconviction petition. He did not raise any issue under Minn. R. Crim. P. 26.01 either in the district court or in this court.
KLAPHAKE, Judge (dissenting)
Because I believe that appellant Anwar Nagi Al-Shormani has established a basis for postconviction relief, I respectfully dissent.
A close reading of appellant’s petition and supporting affidavits shows that his inevitable deportation is only one of the bases asserted by him for relief. He also alleges ineffective assistance of counsel in connection with his “guilty plea,” as he characterizes the procedure that led to his conviction, and claims that a “manifest injustice” has occurred. While the majority correctly notes that appellant did not plead guilty, but was found guilty following a stipulated bench trial, the majority fails to critically examine the procedure followed by the district court and counsel here.
Before a defendant can agree to a bench trial on stipulated facts, he or she must not only waive a jury trial, but also must acknowledge and waive other fundamental rights attendant to a trial, including the right to testify, call witnesses, and cross-examine those witnesses. Minn. R. Crim. P. 26.01, subds. 1(a) (procedure for waiver of jury trial), 3 (procedure for trial on stipulated facts). The record shows that appellant validly waived his right to a jury trial, both on the record and in writing. But the record is devoid of any attempt by either counsel or the district court to obtain appellant’s acknowledgment and personal waiver of other rights fundamental to a fair trial, as required by rule 26.01, subd. 3.
Without this acknowledgment and waiver, it cannot be concluded that appellant knowingly and voluntarily entered into an agreement to submit his case to the court on stipulated facts. See State v. Halseth, ___ N.W.2d ___ (Minn. App. Nov. 26, 2002) (reversing conviction where no valid waiver prior to stipulated court trial). Had this been a case involving a guilty plea, the failure of counsel and the district court to make a record of appellant’s waivers clearly would have entitled him to withdraw his plea due to a manifest injustice. Cf. Alanis v. State, 583 N.W.2d 573, 579 (Minn. 1998) (rejecting defendant’s claim that withdrawal of plea necessary to correct manifest injustice, where record before district court at time plea entered indicates that plea was accurate, voluntary, and intelligent). A bench trial on stipulated facts should compel the same result where, as here, there is no record that the defendant acknowledged and personally waived fundamental trial rights.
I would therefore reverse the district court’s summary denial of appellant’s petition for postconviction relief. Because there was no record waiver of appellant’s fundamental trial rights, I would reverse the conviction and remand for a new trial.