may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed June 8, 1999
Dakota County District Court
File No. K1972051
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
Scott W. Lofthus, Sjostrom and Lofthus, 807 Twelve Oaks Center, 15500 Wayzata Boulevard, Wayzata, MN 55391-1418 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Huspeni, Judge.[*]
Appellant Rudranauth Bharrat was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (1998). He challenges denial of his motion to withdraw his guilty plea, or amend his sentence in the alternative, contending that he did not understand deportation and sentencing consequences, he was denied effective assistance of counsel, and his sentence was illegal and inappropriate due to prosecutorial misconduct. We conclude that the district court did not abuse its discretion in denying postconviction relief. We affirm.
Bharrat is a permanent resident married to a United States citizen. The complaint charged Bharrat with sexual penetration of a person under 16 years of age with whom he had a significant relationship, in violation of Minn. Stat. § 609.342, subd. 1(g). Bharrat pleaded guilty on December 9, 1997. At the plea hearing, Bharrat indicated that he understood that the presumptive sentence for the offense is 86 months in prison and that entering a guilty plea may affect his ability to stay in the United States. A presentencing investigative report indicated that the victim preferred treatment for Bharrat, probation and one year in jail rather than the presumptive prison sentence. At the sentencing hearing, the prosecutor stated that the victim believed a term of imprisonment was appropriate. The district court sentenced Bharrat to the presumptive 86 months in prison.
At the postconviction hearing, Bharrat testified that his attorney told him to enter the guilty plea and answer yes to questions at the plea hearing; that sentencing would likely result in some jail time, probation, and treatment; and that, because his wife was a citizen, problems with his immigration status were not likely. Bharrat's attorney testified that he had no specific recollection of discussing the immigration consequences of the case with Bharrat or telling Bharrat to answer yes to questions. He expected Bharrat would not end up with a prison term and was astonished and angry on hearing the prosecutor tell the court that the victim wanted Bharrat to go to prison. At the postconviction hearing, Mrs. Bharrat and Bharrat's pastor testified that they had been told that Bharrat's immigration status would not be a problem. The pastor also testified that Bharrat often does not fully understand what is said because of a language barrier. The court denied postconviction relief.
This court reviews postconviction proceedings to determine whether the evidence is sufficient to support the postconviction court's findings and will not disturb the postconviction court's decision absent an abuse of discretion. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). The person petitioning for postconviction relief bears the burden of establishing the facts alleged by a fair preponderance of the evidence. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997)
1. Criminal defendants do not have an absolute right to withdraw a guilty plea, but "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) (quoting Perkins, 559 N.W.2d at 685 (citations omitted)). Manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent. Id.
The law distinguishes between direct and collateral consequences of pleading guilty, limiting manifest injustice to misunderstanding of direct consequences. See Alanis, 583 N.W.2d at 578 (holding that requirement that plea be intelligent refers to direct consequences of pleading guilty). Direct consequences are "those which flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed and the amount of any fine." Id. Ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea. Alanis, 583 N.W.2d at 578.
In Alanis, the supreme court held that deportation is not a direct consequence of a guilty plea because deportation is not definite, immediate, or automatic. 583 N.W.2d at 578. Accordingly, where a defendant does not understand deportation consequences, it is not an abuse of discretion for a postconviction court to decide that withdrawal of a guilty plea is unnecessary to correct manifest injustice. Alanis, 583 N.W.2d at 579; see also Berkow v. State, 583 N.W.2d 562, 564 (Minn. 1998) (no requirement that defendant be informed of possible deportation); 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).
Bharrat argues that his plea was not intelligent because he was not aware of the combination of the collateral and direct consequences of his plea. The disappointment of receiving a greater sentence than expected is not grounds for withdrawing a guilty plea. State v. Robinson, 388 N.W.2d 43, 45 (Minn. App. 1986), review denied (July 31, 1986); see also State v. Brown, 406 N.W.2d 530, 533 (Minn. App. 1987) (unqualified plea will not be set aside merely because defendant did not receive unwarranted hope), review denied (Minn. July 15, 1987). Consequently, any misunderstanding as to the likely sentence provides no basis for withdrawing the plea, unless Bharrat was unaware of the possible statutory sentence.
The plea transcript does not support Bharrat's claims of ignorance. Bharrat responded in the affirmative when asked whether he understood that the presumptive sentence was 86 months in prison and that he could be deported as a result of the plea. These questions came not only from the prosecutor, but also from Bharrat's own counsel. Bharrat raises two arguments in reply - (1) that he answered yes to questions at the direction of counsel; and (2) that he did not understand the questions because of a language barrier. The fact that Bharrat answered in the negative to several questions belies both arguments. Bharrat denied having had sexual intercourse with the victim, answering, "I didn't." Upon questioning as to details of the incident, Bharrat answered "No, I can't recall that" and "It didn't happen." The transcript reveals that, despite any directive by counsel, Bharrat was nonetheless able to answer questions in the negative. Bharrat's negative answers also refute his language barrier argument, as Bharrat understood enough to argue the specifics of the incident.
Bharrat urges this court to apply the three factors outlined in U.S. v. Russell, 686 F.2d 35 (D.C. Cir. 1982), to determine whether withdrawal of his guilty plea is necessary to correct manifest injustice. See Berkow v. State, 573 N.W.2d 91, 97-98 (Minn. App. 1997) (interpreting Russell as an illustration of a totality of circumstances balancing inquiry), aff'd, 583 N.W.2d 562 (Minn. 1998). The Minnesota Supreme Court in Alanis and Berkow, however, did not employ these factors in analyzing manifest injustice. We therefore decline to consider these factors. Under Alanis, Bharrat's ignorance of deportation consequences does not provide this court with a basis for reversing the district court's denial of postconviction relief.
2. When a defendant claims ineffective assistance of counsel, he or she must affirmatively prove
(1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.
Alanis, 583 N.W.2d at 577 (Minn. 1998) (quoting King v. State, 562 N.W.2d 791, 795 (Minn. 1997)). There is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance. King, 562 N.W.2d at 795.
Bharrat alleges ineffective assistance of counsel because he was told by his attorney not to worry about deportation because his wife was a citizen. Because there is no requirement that a criminal defendant be informed of the possible deportation consequences of a guilty plea, a defense counsel's failure to advise the criminal defendant of those consequences does not constitute ineffective assistance of counsel. Berkow, 583 N.W.2d at 564. In this case, defense counsel may have provided inaccurate advice. The plea transcript, however, indicates that Bharrat replied that he understood the deportation consequences of his plea. Indeed, defense counsel asked Bharrat if he understood that "because you are entering a guilty plea * * * there is a potential that if the immigration service hears of this, which they probably will, that you may be deported back to Guayana." Given this transcript, under a preponderance of the evidence standard, it was not an abuse of discretion for the district court to conclude that defense counsel's representation was reasonable.
Bharrat further alleges his attorney instructed him to enter a guilty plea and told him that probation was the probable consequence. For an attorney's assistance to be ineffective, he or she 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, 104 S. Ct. 2052, 2064 (1984)). Counsel's action or inaction must rise to the level of incompetence. State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987). Although perhaps poor advice in retrospect, suggesting that the defendant enter a guilty plea or that probation is the probable outcome does not rise to that level of incompetence. Given the strong presumption of reasonable representation, the district court did not abuse its discretion in denying postconviction relief. 3. The determination of whether the prosecutor acted improperly normally rests within the sound discretion of the district court. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). This court applies harmless-error analysis to determine if any prosecutorial misconduct warrants reversal. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (standard depends on seriousness of misconduct). Bharrat alleges that the prosecutor incorrectly reported the victim's wishes to the district court during the sentencing hearing, pointing to conversations that the prosecutor had with the victim as an improper influence on the victim's sentencing preference. But, as the district court noted, the victim's wishes were only one factor that the court considered in determining the sentence. Accordingly, the district court did not abuse its discretion in denying postconviction relief.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.