This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-998

 

Faysal Tadesse Nigatu, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed June 8, 2004

Affirmed

Wright, Judge

 

Olmsted County District Court

File No. K5-97-2633, 97-011864B

 

 

Faysal Tadesse Nigatu, Federal Medical Center-Rochester, PMB 4000, Rochester, MN† 55903-4000 (appellant pro se)

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN† 55904 (for respondent)

 

 

††††††††††† Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

 

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district courtís denial of postconviction relief from his conviction of third-degree assault.† Appellant argues that, because he was not advised by the district court or defense counsel that his conviction could be used to enhance a subsequent sentence in federal district court and because he was not advised of his appeal rights, the postconviction court abused its discretion in concluding that his guilty plea was voluntary, knowing, and intelligent. †We affirm.

FACTS

 

Appellant Faysal Nigatu was charged with several offenses, including third-degree assault, a violation of Minn. Stat. ß 609.223, subd. 1 (1996).† Nigatu pleaded guilty to third-degree assault, and the remaining charges were dismissed.† At the plea hearing, Nigatu was represented by counsel.† Nigatu signed a plea petition, acknowledging that a person who has prior convictions can be given a longer prison term as a result of those prior convictions.† The plea petition also stated, ďI understand that if my plea of guilty is accepted by the judge, I have the right to appeal.Ē†

Before accepting Nigatuís guilty plea, the district court asked Nigatu whether he had read the plea petition and discussed it thoroughly with defense counsel.† The district court also asked Nigatu whether he understood what was happening during the plea proceedings and whether he had any complaints about his counselís representation.† In response, Nigatu stated that he had read through the plea petition, he understood the proceedings, and he did not have any complaints about his counselís representation.†

At sentencing, the district court was advised that Nigatu was at high risk to re-offend.† Nigatu received a stayed sentence and was placed on probation.† After Nigatu violated the conditions of his probation, the district court revoked the stay and executed Nigatuís sentence.† Nigatu was committed to the commissioner of corrections for one year and one day.† The sentencing order advised Nigatu, ďyou have the right to appeal this sentence and judgment of conviction.Ē†

Nearly two years after his third-degree assault conviction, Nigatu was charged in federal district court with distributing cocaine, a violation of 21 U.S.C. ß 841(a)(1) (1998).† Nigatu pleaded guilty, and, based on his criminal-history score, the federal district court sentenced him to serve 108 months in prison.†

Nigatu subsequently moved to challenge the validity of the third-degree assault conviction.† The district court construed the motion as a petition for postconviction relief pursuant to Minn. Stat. ß 590.01, subd. 1(1) (2002).† The district court denied Nigatuís motion, finding that his guilty plea was voluntary, intelligent, and with knowledge of the charges, law, and consequences.† Nigatu then sought leave to file a motion for reconsideration of his petition for postconviction relief, which the district court denied.† This appeal followed.†

 

 

D E C I S I O N

 

Nigatu argues that the district court abused its discretion in concluding that he voluntarily, knowingly, and intelligently pleaded guilty to third-degree assault because he was not advised by the district court or his defense counsel that his conviction could be used to enhance his sentence for a subsequent federal offense and because he was not notified of his appeal rights.[1]

I.

A petitioner seeking a postconviction remedy has the burden of establishing by a fair preponderance of the evidence facts that warrant relief.† Minn. Stat. ß 590.04, subd. 3 (2002).† On appeal, we review the postconviction courtís decision under an abuse-of-discretion standard.† State v. Doppler, 590 N.W.2d 627, 632-33 (Minn. 1999).† On factual issues, we determine whether the evidence is sufficient to sustain the postconviction courtís findings; on legal issues, we exercise de novo review.† Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).†

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.† See Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).† But the district court must allow a defendant to withdraw a plea of guilty upon a timely motion and proof that withdrawal is necessary to correct a manifest injustice.† Minn. R. Crim. P. 15.05, subd. 1.† An involuntary plea constitutes a manifest injustice that entitles a defendant to withdraw a guilty plea.† Butala, 664 N.W.2d at 339; State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).†

The district court has the primary responsibility to determine whether a defendantís plea is voluntary.† State v. Hoaglund, 307 Minn. 322, 325, 240 N.W.2d 4, 5 (1976); State v. Milton, 295 N.W.2d 94, 95 (Minn. 1980); Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999).† It is error to accept a guilty plea that is induced by ignorance.† Coolen v. State,288 Minn. 44, 48, 179 N.W.2d 81, 84 (1970); Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), affíd,583 N.W.2d 562 (Minn. 1998).† The district court may presume that a defendant who has consulted with counsel is aware of the constitutional rights at issue.† Berkow, 573 N.W.2d at 95.† But before the district court accepts a guilty plea, the defendant must be placed under oath and questioned as to whether the defendant understands the maximum penalty that could be imposed for the crime charged, whether the defendant understands the Fifth and Sixth Amendment rights that are being waived, and whether the defendant still wishes to plead guilty.† Minn. R. Crim. P. 15.01.†

The district court, however, does not have a duty to advise a defendant of the collateral consequences of a guilty plea.† See Kaiser v. State, 641 N.W.2d 900, 904 (Minn. 2002) (declining to disturb a guilty plea where the district court did not advise the defendant of the collateral consequences of the plea); see also State v. Garritsen, 371 N.W.2d 251, 253 (Minn. App. 1985) (declining to disturb a plea on the basis that the defendant was not advised of the ramifications of the plea on future sentences in other jurisdictions).† That a conviction may be used to enhance a subsequent sentence is a collateral consequence of the guilty plea because it does not flow definitely, immediately, and automatically from the guilty plea.† See United States v. Lambros, 544 F.2d 962, 966 (8th Cir. 1976) (holding that the possibility of an enhanced sentence in a subsequent conviction is a collateral consequence of a conviction); see also Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding that the defendant was not required to be advised that deportation was a collateral consequence of conviction); Kim, 434 N.W.2d at 266 (holding that defendant was not required to be advised about the possibility of losing his job as a result of the conviction).†

Nigatu is presumed to have been aware of his constitutional rights because Nigatu was represented by counsel.† See Berkow, 573 N.W.2d at 95.† But we need not rely solely on that presumption because the district court also advised Nigatu of his Fifth and Sixth Amendment rights before Nigatu affirmed that he wished to plead guilty.† Nigatu also signed a plea petition stating that he understood that the maximum possible sentence that he could receive for third-degree assault was five yearsí imprisonment.† Indeed, the district court did not advise Nigatu that his plea could be used to enhance a subsequent sentence in another jurisdiction.† But because enhancement of Nigatuís subsequent federal sentence did not flow definitely, immediately, and automatically from his conviction of third-degree assault, the district court did not have a duty to advise Nigatu that such a consequence might occur.† See Garritsen, 371 N.W.2d at 253 (declining to disturb a guilty plea on the basis that the defendant was not advised of the ramifications of his plea on future sentences in other jurisdictions); see also Lambros, 544 F.2d at 966 (holding that a defendant is not entitled to be advised about the possibility of an enhanced sentence in a subsequent conviction).† Because the district court properly advised Nigatu of his constitutional rights and the direct consequences of his guilty plea, Nigatuís postconviction challenge on this ground fails.

A guilty plea may be rendered involuntary by the ineffective assistance of counsel.† State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).† Voluntariness depends on whether counselís advice was within the range of competence demanded of attorneys in criminal cases.† Id.† Postconviction relief based on a claim of ineffective assistance of counsel requires the petitioner to establish that (1) defense counselís representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.† Strickland v. Washington,466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984).†

Nigatuís claim that his defense counsel provided ineffective assistance during the guilty-plea process also is without merit.† When given the opportunity to do so, Nigatu did not complain about his defense counselís representation either during the guilty-plea hearing or during the sentencing hearing.† Nigatu signed and orally confirmed that he understood the plea petition and had thoroughly reviewed the petition with defense counsel.† The petition provided that Nigatu believed his counsel to be fully informed of the facts of the case, that Nigatu was satisfied that he was fully advised by his counsel, and that Nigatu was satisfied with his counselís representation.† And when questioned by the district court, Nigatu denied having any complaints about defense counselís representation.† Although the record does not indicate that defense counsel advised Nigatu that the conviction could be used to enhance a subsequent sentence in another jurisdiction, as discussed above, the enhancement effect of Nigatuís plea was a collateral consequence of the plea about which defense counsel, like the district court, was not obligated to advise Nigatu.† See Alanis, 583 N.W.2d at 579; Kim, 434 N.W.2d at 266-67.† Because the plea petition and Nigatuís statements at the guilty-plea hearing clearly establish that Nigatu was advised of the direct consequences of his plea, we conclude that Nigatuís claim of ineffective assistance of counsel also fails.†

Thus, the district courtís denial of postconviction relief was not an abuse of discretion.†

II.

††††††††††† Nigatu next argues for the first time on appeal that he was not advised of his appeal rights when pleading guilty.† Generally, we will not consider issues that were not presented to or decided by the district court. †See Roby v. State,547 N.W.2d 354, 356 (Minn. 1996).† When constitutional rights are raised, we may consider the issue in the interests of justice if the parties have had adequate briefing time and the issue was implied in district court.† Tischendorf v. Tischendorf,321 N.W.2d 405, 410 (Minn. 1982).† But cf. Henning v. Vill. of Prior Lake, 435 N.W.2d 627, 632 (Minn. App. 1989), (declining to address constitutional argument not raised below), review denied (Minn. Apr. 24, 1989).† Here, in the absence of circumstances giving rise to this exception, we decline to address Nigatuís claim raised for the first time on appeal.

††††††††††† Affirmed.



[1] Nigatu also argues that use of his third-degree-assault conviction to enhance his federal court sentence was unconstitutional.† This argument, however, is unavailing.† The law is well established that, with the sole exception of convictions obtained in violation of a defendantís right to counsel, no constitutional violation occurs when a prior conviction, state or federal, is used to enhance a federal sentence.† See Custis v. United States, 511 U.S. 485, 492-93 114 S. Ct. 1732, 1736-37 (1994).† Moreover, the issue of whether Nigatuís federal sentence is constitutional is not properly before us, as we lack jurisdiction to review claims of error committed by the federal district court.†