This opinion will be unpublished and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

A03-1074

 

Reyna Gallegos Perales,
petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed February 17, 2004

Affirmed

Peterson, Judge

 

Martin County District Court

File No. K202377

 

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Terry Viesselman, Martin County Attorney, 923 North State Street, Suite 130, Fairmont, MN  56031 (for respondent)

 

 

            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

In this appeal from an order denying her postconviction petition to withdraw her guilty plea, appellant Reyna Gallegos Perales argues that because her plea was not intelligently and voluntarily entered, the district court abused its discretion by not allowing her to withdraw the plea.  We affirm.

FACTS

            Appellant was charged with first-degree controlled substance crime, and, pursuant to an agreement with the state, she entered an Alford plea[1] pleading guilty to second-degree controlled-substance crime.  Before appellant pleaded guilty, her attorney informed her that by pleading guilty she should expect to be sentenced to a 48-month prison term.[2]  Her attorney also discussed with appellant the possibility of participating in the boot-camp program.[3]  Appellant expressed concern that she would not be accepted into the program because she did not speak English.  Her counsel checked with a department of corrections official, who indicated that the program would be difficult due to the language barrier but that appellant would not be kept out of the program.  Appellant asserts that she understood that if she pleaded guilty, she would go to boot camp.

Appellant was sentenced to serve 48 months, the presumptive prison term for a defendant with zero criminal-history points convicted of a second-degree controlled-substance crime.  Minn. Sent. Guidelines IV-V.  After her conviction, the Immigration & Naturalization Service (INS) filed a detainer against appellant, who is not a United States citizen.  Appellant’s caseworker told her that she could not apply for boot camp if she had an INS detainer.

Appellant filed a petition for postconviction relief seeking to withdraw her plea on the grounds that it was not intelligently and voluntarily entered.  The postconviction court denied the petition.

D E C I S I O N

A postconviction court’s findings are reviewed to determine whether there is sufficient evidentiary support in the record.  This court affords great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.  The decisions of a postconviction court will not be disturbed absent an abuse of discretion.

 

Pierson v. State, 637 N.W.2d 571, 576-77 (Minn. 2002) (citations and quotation omitted).  It is the petitioner’s burden to establish “by a fair preponderance of the evidence facts that warrant a reopening of his case.”  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).  A reviewing court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). 

1.         Intelligent and voluntary plea

There is no absolute right to withdraw a guilty plea after it is entered. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  Criminal defendants “may withdraw a guilty plea after sentencing upon a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (quotation omitted).

A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.  The accuracy requirement protects the defendant from pleading guilty to a more serious offense than he or she could be properly convicted of at trial.  The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements; and the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.

 

 Id. (citations omitted).  For a guilty plea to be intelligent, the defendant must understand the direct consequences of the guilty plea.  Id. at 578.  Direct consequences are those that “flow definitely, immediately, and automatically from the guilty plea--the maximum sentence and any fine to be imposed.”  Id.  Ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.  Id.

Appellant argues that because she did not understand the direct consequences of her guilty plea, her plea was not intelligently entered.  Appellant contends that she was misinformed about the boot-camp program and incorrectly believed that if she pleaded guilty, she would go to boot camp after serving six months of her prison term.  Appellant contends that she would not have pleaded guilty had she known that she was ineligible for boot camp.

The supreme court addressed a similar claim in Alanis, where the defendant, a resident alien, pleaded guilty pursuant to a plea agreement.  583 N.W.2d at 575-76.  The plea agreement called for Alanis to be sentenced to 54 months in prison, which made him eligible for the boot-camp program.  Id. at 576.  Being eligible for the program was a key factor in Alanis’ decision to plead guilty, and, at his sentencing hearing, the district court told Alanis that he would be turned over to the commissioner of corrections who would eventually process him into the program.  Id.  Alanis was accepted into the program, but before being admitted, the INS lodged a detainer against him, which made him ineligible for the program.  Id.  Alanis claimed that his guilty plea was not intelligent because he understood that he would be sentenced to six months in the boot camp, and he was not warned of the possible immigration consequences of pleading guilty.  Id. at 578.  But even though Alanis incorrectly believed that he would be admitted into the boot-camp program, the supreme court held that his plea was intelligent because the record established that before pleading guilty, Alanis “knew and understood the charges against him and his rights under the law as well as the direct consequences of making the plea, that being the maximum sentence and the amount of any fine to be imposed.”  Id. at 579.

It is clear from the record that, like Alanis, when appellant pleaded guilty, she knew the direct consequence of her plea, a 48-month prison term.  Therefore, like Alanis, the fact that appellant incorrectly believed that if she pleaded guilty, she would go to boot camp after serving six months of her prison term does not mean that her plea was not intelligent.

            Appellant argues that Alanis does not hold that eligibility for the boot-camp program is a collateral consequence of a guilty plea and that because she was lead to believe that boot-camp eligibility flowed automatically from her plea, eligibility was a direct consequence of the plea. 

The supreme court did not state in Alanis that eligibility for the boot-camp program is a collateral consequence of a guilty plea.  But the court explained that direct consequences are those that flow definitely, immediately, and automatically from a guilty plea.  Id. at 578.  Appellant’s experience demonstrates that eligibility for the boot-camp program does not flow definitely, immediately, and automatically from a guilty plea.  When appellant entered her plea, she was not subject to an INS detainer, and she was not ineligible for the program.  However, before appellant could apply to participate in the program, the INS lodged a detainer, and appellant became ineligible.  Appellant’s ineligibility for the boot-camp program resulted from actions taken by another government agency, the INS; it was not a definite, immediate, or automatic consequence of her guilty plea.  Therefore, it is a collateral consequence of her plea, not a direct consequence.  Appellant’s incorrect belief that boot-camp eligibility flowed automatically from her plea cannot convert a collateral consequence into a direct consequence.

Appellant argues that even if eligibility for boot camp is a collateral consequence of her plea, she is still entitled to withdraw her plea because a plea based on misinformation about a collateral consequence is not intelligent.  Appellant contends that the postconviction court’s finding that her attorney informed her “she would not be ineligible for the program” is supported by the evidence, and this finding demonstrates that she was misinformed because under the Department of Corrections criteria, she was ineligible to apply for the program.  But appellant presents the postconviction court’s finding out of context.  The court found:

3.         [Appellant] also made clear to her attorney that she wanted to be considered for the prison Boot Camp program upon commencement of her incarceration, but was concerned that she might not qualify for the program because of her poor English language skills.

 

4.         Her attorney contacted the Minnesota Department of Corrections to inquire about the program, and subsequently informed [appellant] that while her poor English language skills might make the program more difficult for her, she would not be ineligible for the program.

 

            When read in their entirety, the court’s findings indicate that appellant’s attorney informed her that she would not be ineligible for the program due to her poor English language skills.  Appellant was not told that she would not be ineligible for the program for any reason.  Appellant did not demonstrate that she was misinformed.

2.         Ineffective assistance of counsel

Appellant also argues that her plea was not voluntarily entered because her attorney provided ineffective assistance when he misinformed her that if she pleaded guilty, she could apply to enter boot camp and would not be ineligible.  This argument was also made in Alanis, and the supreme court rejected it.

The supreme court explained in Alanis that in determining claims of ineffective assistance of counsel, the standard set by the United States Supreme court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), is applied.  Alanis, 583 N.W.2d at 577.  “Under the Strickland test, the petitioner must demonstrate: ‘(1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different.’”  Id. (quoting King v. State, 562 N.W.2d 791, 795 (Minn. 1997)).

The supreme court concluded that “as a collateral consequence of the guilty plea, [Alanis’s] attorney was under no obligation to advise him of the deportation possibility and, therefore, the failure to so inform him could not have fallen below an objective standard of reasonableness as required by Strickland.”  Id. at 579.  Applying this reasoning, we conclude that because ineligibility for the boot-camp program was a collateral consequence of appellant’s guilty plea, her attorney was under no obligation to advise her of the possible ineligibility, and, therefore, the failure to inform her did not fall below an objective standard of reasonableness as required by Strickland.

Affirmed.



[1] A defendant enters an Alford plea by pleading guilty to an offense while maintaining her innocence, because she reasonably believes, and the record establishes, that the state has sufficient evidence to obtain a conviction.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977) (holding that plea from defendant who maintains innocence may be accepted if evidence would support a jury verdict of guilty and plea is voluntarily, knowingly, and understandingly entered).

[2] The sentencing court told appellant, and appellant’s affidavit indicates that she understood, that it was expected that she would serve 32 months in prison and 16 months on supervised release.

[3] “Boot camp” is the vernacular for the department of corrections’ Challenge Incarceration Program (CIP), a minimum-security, boot-camp-style program.