State of Minnesota v. Eulogio Hernandez-Espinoza

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1397

State of Minnesota,
Respondent,

vs.

Eulogio Hernandez-Espinoza,
Appellant.

Filed August 18, 2014
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-12-23437

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Chutich, Presiding Judge; Schellhas, Judge; and

Johnson, Judge.
 UNPUBLISHED OPINION

JOHNSON, Judge

Eulogio Hernandez-Espinoza pleaded guilty to first-degree conspiracy to commit a

controlled-substance crime. On appeal, he argues that the district court was without

jurisdiction, that Hennepin County was an improper venue, and that he received

ineffective assistance of counsel during district court proceedings. We affirm.

FACTS

On July 21, 2012, Hernandez-Espinoza and his brother met an undercover police

officer for the purpose of arranging a sale of two pounds of methamphetamine. The

meeting occurred at a restaurant in the city of Maplewood.

Two days later, the state charged Hernandez-Espinoza in Hennepin County with

one count of conspiracy to commit a controlled-substance crime in the first degree, in

violation of Minn. Stat. §§ 152.021, subd. 1(1), .096, subd. 1 (2010). The complaint

alleges the existence of a conspiracy among Hernandez-Espinoza, his brother, and two

other men, based on a series of events occurring in Hennepin County, Dakota County,

and Ramsey County between February and July of 2012.

In May 2013, Hernandez-Espinoza pleaded guilty. During the plea hearing, he

admitted that he and his brother met the undercover officer in Maplewood to arrange a

sale of methamphetamine and that he served as a translator during the meeting. The

district court accepted Hernandez-Espinoza’s guilty plea and sentenced him to 96 months

of imprisonment. Hernandez-Espinoza appeals.

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 DECISION

I. Jurisdiction and Venue

In his principal brief, Hernandez-Espinoza argues that the district court erred by

accepting his guilty plea on the ground that the district court, which is located in

Hennepin County, did not have jurisdiction over the case because Hernandez-Espinoza’s

conduct occurred solely in Ramsey County. In support of that argument, Hernandez-

Espinoza’s brief cites only one case, Sykes v. State, 578 N.W.2d 807 (Minn. App. 1998),

review denied (Minn. Jul. 16, 1998), which is a case concerning jurisdiction. In its

responsive brief, the state argues that Hernandez-Espinoza’s brief “conflates the concepts

of ‘jurisdiction’ and ‘venue.’” The state proceeds to argue that the district court was not

lacking jurisdiction, that Hernandez-Espinoza waived the issue of venue by not raising it

in the district court, and that Hennepin County was a proper venue in which to prosecute

the offense. In his reply brief, Hernandez-Espinoza asserts that Hennepin County was

not “the proper place to charge this crime” and argues that (1) the issue of venue was not

waived, and Hennepin County was an improper venue for the prosecution, and (2) his

guilty plea is invalid on the ground that the record of the plea hearing does not contain an

adequate factual basis for one element of the offense, namely, venue.

We first address the argument that Hernandez-Espinoza made in his principal

brief, which plainly is without merit. The term “jurisdiction” refers to the power of the

district court “to hear and decide disputes.” State v. Simion, 745 N.W.2d 830, 837 (Minn.

2008) (quotation omitted). A district court has jurisdiction over a case if “some part of

the offense [was] committed within the territorial boundaries of Minnesota.” Sykes, 578

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N.W.2d at 811; see also Minn. Stat. § 609.175, subd. 3(4) (2012). It is undisputed that

Hernandez-Espinoza and his brother met with an undercover officer in Minnesota to

arrange a sale of methamphetamine. Thus, the district court had jurisdiction over this

case.

We next turn to the first argument that Hernandez-Espinoza made in his reply

brief, that Hennepin County was an improper venue for the prosecution. As a general

rule, this court does not consider arguments that are made for the first time in a reply

brief. State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009); Hunter v. Anchor Bank, N.A.,

842 N.W.2d 10, 17 (Minn. App. 2013), review denied (Minn. Mar. 18, 2014); Fontaine v.

Steen, 759 N.W.2d 672, 679 (Minn. App. 2009). At oral argument, Hernandez-

Espinoza’s appellate counsel asserted that this argument is the same argument that was

presented in Hernandez-Espinoza’s principal brief. Counsel’s assertion finds some

support in the fact that the state, in its responsive brief, argues that Hennepin County was

a proper venue. Although the issues of jurisdiction and venue are separate and distinct,

see State v. Smith, 421 N.W.2d 315, 320 (Minn. 1988), we need not determine whether

Hernandez-Espinoza made a venue argument in his principal brief because the venue

argument fails for a different reason.

The state contends that Hernandez-Espinoza waived his objection to the venue of

the prosecution because he did not object in the district court before he pleaded guilty.

The county is correct. A defendant may not challenge the venue of a prosecution on

appeal if he did not object to it in the district court. Minn. R. Crim. P. 24, cmt.; State v.

Blooflat, 524 N.W.2d 482, 484 (Minn. App. 1994). Hernandez-Espinoza pleaded guilty

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without objecting to the venue of the prosecution. Thus, Hernandez-Espinoza waived his

right to challenge the venue of the prosecution on appeal.

We last address the second argument that Hernandez-Espinoza made in his reply

brief, that his guilty plea is invalid on the ground that the record of the plea hearing does

not contain an adequate factual basis for one element of the offense. See State v. Ecker,

524 N.W.2d 712, 716 (Minn. 1994). The caselaw recognizes that venue is an element of

every criminal offense and that the state has the burden of proving that element at trial.

State v. Pierce, 792 N.W.2d 83, 85 (Minn. App. 2010); State v. Eibensteiner, 690 N.W.2d

140, 150 (Minn. App. 2004), review denied (Minn. Mar. 15, 2005). The caselaw also

recognizes that the word “venue” can be used to refer both to the place of a prosecution

and to the element that must be proved by the state at trial. See Eibensteiner, 690

N.W.2d at 150. Hernandez-Espinoza plainly did not make an argument in his principal

brief based on venue in the sense of the element that must be proved by the state at trial.

Likewise, the state did not make an argument in its responsive brief on the issue of venue

in the sense of the element that must be proved by the state at trial. Accordingly, we may

not consider the argument because it was made for the first time in the reply brief. See

Yang, 774 N.W.2d at 558; Hunter, 842 N.W.2d at 17; Fontaine, 759 N.W.2d at 679.

II. Assistance of Counsel

Hernandez-Espinoza also argues that his guilty plea is invalid on the ground that

he received ineffective assistance of counsel when his attorney in the district court did not

challenge the district court’s jurisdiction. Consistent with our treatment of Hernandez-

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Espinoza’s other argument, we will interpret his ineffectiveness argument to encompass

the absence of an objection to the venue of the prosecution.

To prevail on a claim of ineffective assistance of counsel, Hernandez-Espinoza

“must affirmatively prove [1] that his counsel’s representation ‘fell below an objective

standard of reasonableness’ and [2] ‘that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington,

466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). A person alleging a claim

of ineffective assistance of counsel “bears the burden of proof on that claim.” State v.

Jackson, 726 N.W.2d 454, 463 (Minn. 2007). To satisfy that burden, an appellant “must

do more than offer conclusory, argumentative assertions, without factual support.” See

State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007).

In this case, Hernandez-Espinoza has not established the first requirement of his

ineffectiveness claim, that trial counsel’s representation “fell below an objective standard

of reasonableness.” See Gates, 398 N.W.2d at 561 (quotation omitted). The record

reveals that the attorney was aware, before the guilty plea, both that the prosecution was

venued in Hennepin County and that Hernandez-Espinoza met with his brother and an

undercover officer in Ramsey County. The attorney addressed the matter in a colloquy

with Hernandez-Espinoza during the plea hearing. In that colloquy, Hernandez-Espinoza

acknowledged that he and the attorney had discussed “the issue of jurisdiction [sic] and

the fact that your arrangement of the drug deal occurred in Ramsey County,” and he

further acknowledged that the attorney had answered his questions on the issue. The

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attorney also asked questions to establish that the drugs at issue were to be sold in

Hennepin County. Accordingly, the record indicates that Hernandez-Espinoza’s attorney

deliberately chose not to challenge the venue of the prosecution for strategic reasons. See

Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007) (reasoning that strategy decisions are

not evidence of ineffective assistance). The transcript also gives the impression that

Hernandez-Espinoza and his attorney were strategic about which facts to place into the

record of the plea hearing, perhaps due to concern for Hernandez-Espinoza’s co-

conspirators, including his brother. See id.

In addition, Hernandez-Espinoza has not established the second requirement of his

ineffectiveness claim, “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” See

Gates, 398 N.W.2d at 561 (quotation omitted). Hernandez-Espinoza contends that, but

for his counsel’s failure to advise him that venue was improper, he would have “moved to

dismiss the charge due to lack of jurisdiction [sic].” But Hernandez-Espinoza has not

established that a motion challenging venue would have been granted. Such a motion

would be meritorious only if the state were not permitted to charge a multi-county

conspiracy in any county in which the conspiracy was pursued. We are not aware of any

authority for that premise. It appears that the Minnesota appellate courts have not

previously considered the issue. We note that the federal caselaw appears to hold

uniformly that, “[i]n a conspiracy case, venue is proper in any district in which any act in

furtherance of the conspiracy was committed by any of the conspirators even though

some of them were never physically present there.” United States v. Banks, 706 F.3d

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901, 904-05 (8th Cir. 2013) (alteration in original) (internal quotations omitted); accord

United States v. Rodriguez-Lopez, ____ F.3d ____, 2014 WL 2884677, at *5 (5th Cir.

June 25, 2014); United States v. Gonzalez, 683 F.3d 1221, 1224-25 (9th Cir. 2012).

Thus, it seems unlikely that Hernandez-Espinoza would have been successful if he had

challenged the venue of the prosecution before pleading guilty.

Furthermore, Hernandez-Espinoza has not established that, even if such a motion

had merit, the ultimate result of the prosecution would have been different. For example,

if the district court had decided that Hennepin County was an improper venue, the district

court could have transferred the case to Ramsey County. See Minn. R. Crim. P. 24.03.

Hernandez-Espinoza has not attempted to show that a challenge to the venue of the

prosecution would have led to a dismissal with prejudice or that he would have been able

to secure a better result in Ramsey County.

Thus, Hernandez-Espinoza cannot establish that he received ineffective assistance

of counsel in the district court.

III. Pro Se Supplemental Brief

Hernandez-Espinoza filed a pro se supplemental brief, in Spanish. This court

contracted with a vendor to translate the pro se supplemental brief into English to

facilitate appellate review. After carefully reviewing the issues raised by Hernandez-

Espinoza in his pro se supplemental brief, we conclude that the brief does not contain any

grounds for reversal.

Affirmed.

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