This opinion will be unpublished and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


State of Minnesota,


Samuel Linneaus Sylvester,

Filed April 6, 1999
Short, Judge

Meeker County District Court
File No. K496296

Michael A. Hatch, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Michael J. Thompson, Meeker County Attorney, Gayle A. Borchert, Assistant County Attorney, 325 North Sibley Avenue, Litchfield, MN 55355 (for appellant)

Peter J. Timmons, 2850 Metro Drive, Suite 321, Bloomington, MN 55425 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Samuel Linneaus Sylvester was charged with criminal sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345, subd. 1(e) (1998). In January 1997, Sylvester entered an Alford plea. See State v. Powell, 578 N.W.2d 727, 731 n.1 (Minn. 1998) (defining plea based on North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 167-68 (1970)). Pursuant to that agreement, the trial court stayed adjudication and placed Sylvester on probation subject to certain conditions. In July 1998, the Immigration and Naturalization Service notified Sylvester of its intent to deport him due to his "conviction." See 8 U.S.C. § 1101(a)(48)(A) (Supp. 1997) (defining "conviction" for immigration/deportation purposes). Sylvester moved the original trial court to withdraw his plea, vacate conviction, and dismiss the charges based on ineffective assistance of counsel and manifest injustice. The trial court concluded plea withdrawal was necessary to correct a manifest injustice. On appeal, the state argues the trial court erroneously considered collateral consequences when permitting Sylvester to withdraw his plea. We affirm.


A decision to permit withdrawal of a guilty plea will be reversed only if the trial court clearly abused its discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989); see Minn. R. Crim. P. 15.05, subd. 1 (permitting withdrawal of plea after sentencing to correct manifest injustice). Manifest injustice exists when a defendant can show the guilty plea was not accurate, voluntary, or intelligent. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991); Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968).

The state argues the trial court abused its discretion by permitting Sylvester to withdraw his plea when faced with immigration consequences. See Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (noting ignorance of collateral consequences, such as deportation, does not entitle defendant to withdraw guilty plea); Berkow v. State, 583 N.W.2d 562, 563-64 (Minn. 1998) (concluding failure to inform defendant of collateral consequence, such as deportation, does not give defendant right to withdraw guilty plea); but see Minn. R. Crim. P. 15.01(10)(c) (requiring, for criminal actions commenced or arrests made after January 1, 1999, that non-citizen defendants be informed of guilty plea's deportation consequences before court accepts plea). However, the record demonstrates Sylvester was not merely ignorant of the collateral consequences of his plea, but was actively misinformed by his defense counsel. In a letter dated January 24, 1997, defense counsel advised Sylvester that on entry of his Alford plea,

[t]he Court would not adjudicate you guilty. Thus there would be no triggering of any activity that would likely lead to a deportation.

* * * *

Throughout the seven year period you would not be deemed to be "convicted" and, as mentioned above, not likely to be a target for deportation.

* * * *

You should be aware, however, of the risks of proceeding to trial said risk included not only the possibility of a conviction but the relative certainty of a deportation if a conviction should be had in this case.

The trial court, which initially took the plea, concluded Sylvester did not enter the Alford plea voluntarily or intelligently because he received misleading legal advice. See Alford, 400 U.S. at 31, 91 S. Ct. at 164 (recognizing valid guilty plea must be voluntary and intelligent); State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (noting valid guilty plea must be accurate, voluntary, and intelligent). Under these circumstances and given our standard of review, we cannot say the trial court abused its discretion by permitting Sylvester to withdraw his Alford plea. See Barragan v. State, 583 N.W.2d 571, 572-73 (Minn. 1998) (noting deportation or possibility of deportation does not, by itself, constitute manifest injustice); Riggers v. State, 284 Minn. 543, 543-44, 169 N.W.2d 58, 59 (1969) (holding trial court properly vacated judgment to correct manifest injustice because plea was ill-advised and involuntary).