Erasmo Monge Rauda, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1027

Erasmo Monge Rauda, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 15, 2017
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CR-13-3583

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Rodenber g, Presiding Judge; Ross, Judge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Erasmo Monge Rauda 1 challenges the postconviction court’s denial of
his motion to withdraw his guilty plea without an evidentiary hearing. Appellant argues
that his mental state at the time of the plea hearing rendered his guilty plea not voluntary
or intelligent. He also argues that his guilty plea is invalid because of ineffective assistance
of counsel. We affirm.
FACTS
Appellant is a citizen of El Salvador and is living in the United States. In 2007, he
was charged with being subject to remova l proceedings under the Immigration and
Nationality Act (INA) as an alien present in the United States who had not been admitted
or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i) (2012) (sta ting that an alien present without
admission or parole is inadmissible). He thereafter applied for and received Temporary
Protected Status (TPS), which provided tem porary protection from removal proceedings.
See 8 U.S.C. § 1254a (2012) (defining the status and providing eligibility requirements).
In 2013, appellant was charged with fo urth-degree criminal sexual conduct.
Appellant pleaded guilty to that charge pursuant to a plea agreement. The plea petition
included the following: “My attorney has told me and I understand that if I am not a citizen
of the United States this plea of guilty may result in deportation, exclusion from admission

1 Appellant’s name has appeared in the distri ct court record in several different ways,
including: Erasmo Rauda Monge, Erasmo Raude Monge, and Erasmo Rauda-Monge. We
refer to appellant by the name used by the district court and in appellant’s brief.

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to the United States of Amer ica or denial of citizenship .” The petition was written in
English, but appellant confirmed that, with th e aid of an interpreter, he had discussed the
petition with his attorney. He testified that he was satisfied with his understanding of the
contents of the petition.
Appellant was questioned by the district court and defense counsel about his mental
state. Appellant testified that he has depression, that he was taking identified medications,
and that he has memory lapses caused by post -traumatic stress disorder (PTSD). When
asked if he was thinking with a clear mind, appellant initially answered the district court’s
question in the affirmative, but when later asked a similar question by defense counsel, he
answered, “Not very well.” When asked if he would prefer that pr oceedings be delayed
until he was thinking with a clear mind, appellant answered, “I would not change my mind
now.” When asked if he had forgotten things that had been discussed with defense counsel
earlier in the day, appellant answered, “Just some things. But, for whatever has been said
here, no, I remember.”
Defense counsel asked appellant about their discussions concerning the decision to
enter a guilty plea, the trial rights appellant would waive by doing so, and appellant’s
understanding of the agreement. Immigration consequences were discussed on the record:
Defense counsel: . . . We also talked about that if you’re not a
United States citizen that this guilty plea will likely result in
immigration consequences. Even though you have legal
permission to be here, United States could revoke that
permission and deport you from the United States.
Appellant: Yes.
Defense counsel: You understand that’s a risk you’re taking.
Appellant: Yes.

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After a factual basis for the plea was provide d, the district court accepted appellant’s
guilty plea. Before sentencing, the state moved for a competency evaluation to ensure that
appellant was competent to understand the pro ceedings. The evaluator concluded that
appellant was competent to proceed with sentencing despite his mental illness and possible
mental deficiency. The evaluator noted that appellant understood the charges against him
and knew the reasons be hind his decision to plead guilty. In March 2015, appellant was
sentenced in conformity with the plea agreement.
After sentencing, the Department of Home land Security (DHS) provided notice of
an additional charge of removability under the INA stemming from appellant’s guilty plea.
Appellant filed a petition for postconviction relief, seeking to withdraw his plea. Appellant
filed a supporting affidavit explaining that he suffers from several mental-health issues and
was taking multiple prescribed medications at the time of his guilty plea. The affidavit
primarily concerned appellant’s mental health, but did allege in very summary fashion that
appellant was not told that he “would be de ported.” Appellant also alleged that he felt
pressured to plead guilty and that he did not understand his plea at the time it was entered.
The postconviction court denied appellant’s motion to withdraw his plea without an
evidentiary hearing.
This appeal followed.
D E C I S I O N
“[Appellate courts] review the denial of a petition for postconviction relief, as well
as a request for an evid entiary hearing, for an abuse of discretion.” Taylor v. State, 874
N.W.2d 429, 430 (Minn. 2016) (quotation omitted). We review the postconviction court’s

5
factual findings for clear error and review the legal conclusions de novo. Martin v. State,
825 N.W.2d 734, 740 (Minn. 2013).
I. Appellant’s mental state did not render his guilty plea invalid.
A defendant does not have an “absolute right to withdraw a guilty plea after entering
it.” State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). After sentencing, a defendant may
withdraw a guilty plea only “to correct a mani fest injustice.” Minn. R. Crim. P. 15.05,
subd. 1. A manifest injustice exists if a guilty plea is not valid. State v. Theis, 742 N.W.2d
643, 646 (Minn. 2007). “To be constitutionally valid, a guilty plea must be accurate,
voluntary, and intelligent.” Nelson v. State, 880 N.W.2d 852, 858 (Minn. 2016) (quotation
omitted). The petitioner “bears the burden of showing his plea was invalid.” Raleigh, 778
N.W.2d at 94. The validity of a plea is reviewed de novo. Id.
Appellant argues that his plea was not vol untary because he felt pressured into
pleading guilty. “The voluntariness requirement ensures a defendant is not pleading guilty
due to improper pressure or coercion.” Id. at 96. Improper pressure or coercion generally
requires a threat or promise made to induce a defendant to plead guilty. See Brady v. United
States, 397 U.S. 742, 750, 90 S. Ct. 1463, 1470 (1970) (“[A ]gents of the State may not
produce a plea by actual or thr eatened physical harm or by mental coercion overbearing
the will of the defendant.”); State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (“A guilty
plea cannot be induced by unfulfilled or unfulfillable promises . . . .”). We examine “what
the parties reasonably understo od to be the terms of the plea agreement” and all other
relevant circumstances. Raleigh, 778 N.W.2d at 96.

6
Appellant alleged no facts in his affidavit to support a conclusi on that the state,
defense counsel, the district court, or any other person subjected appellant to improper
pressure. Appellant was asked multiple times during the plea colloquy if the terms of the
agreement, announced on the record, represented his understanding of the plea agreement.
He answered in the a ffirmative. The report of the competency evalua tor supports the
conclusion that appellant understood the terms of the agreement at the time of his plea.
Appellant also argues that his plea was not intelligent because of his memory lapses
and the medication that he was taking at the tim e of the hearing. “A n intelligent plea is
one made ‘knowingly and understandingly.’” Uselman v. State , 831 N.W.2d 690, 693
(Minn. App. 2013) (quoting Perkins v. State , 559 N.W.2d 678, 688 (Minn. 1997)). We
examine whether, at the time the plea was entered, the defendant “understood the charges
against him, the rights he waived, and the consequences of the plea.” Nelson, 880 N.W.2d
at 861.
At the plea hearing, appellant identified his medical issues, listed his medications,
and talked about his memory la pses. Appellant told the court that he had forgotten some
things from earlier that day, but that he reme mbered everything that had been said up to
that point in the proceedings. Defense coun sel asked appellant about the rights he was
waiving, and appellant answered that he under stood the rights. At no point did appellant
state that he did not understand or did not remember discussing his rights, the charges, or
the consequences of the plea, all of which were discussed with appellant on the record and
to which he indicated that he understood.

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To the extent that appellant argues the postconviction court abused its discretion by
considering the information within the compet ency evaluation fo r the purpose of
considering the validity of the plea, we disagree. The postconviction court could
reasonably determine from a review of the plea-hearing transcript that appellant understood
the nature of the claims against him, the ri ghts he waived, the cons equences of the plea,
and the terms of the plea agreement. Moreover, the guilty plea was made before the same
district judge who considered the postconviction petition. Appellant’s responses to the
competency evaluator’s questions concerning his understanding of his trial rights and the
consequences of his plea only bolstered the pl ea-hearing record, which demonstrates that
appellant’s guilty plea was voluntary and intelligent.
II. The postconviction court did not abuse its discretio n by denying appellant’s
request to withdraw his plea based on ineffective assistance of counsel.

Appellant argues that the postconviction c ourt abused its discretion by summarily
denying his petition to withdraw his guilty plea on the basis of ineffective assistance of
counsel. He maintains that defense counsel had an obligation to warn him that entering a
guilty plea to a felony would re sult in the loss of his TPS, which would then result in his
removal from the United States. He argues that there is a reasonable probability that, had
he been warned of the true immigration consequences, he would not have pleaded guilty
and would instead have proceeded to trial.
We examine an ineffective- assistance-of-counsel claim under the two-prong test
articulated in Strickland. Griffin v. State , 883 N.W.2d 282, 287 (Minn. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 1 04 S. Ct. 2052, 2064 (1984)). To

8
establish ineffective assistance of counsel, appellant must demonstrate that “(1) counsel’s
representation fell below an objective standa rd of reasonableness and (2) there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016). The denial of
postconviction relief based on a claim of ine ffective assistance of counsel is a mixed
question of law and fact and is reviewed de novo. Griffin, 883 N.W.2d at 287.
Entitlement to an evidentiary hearing on an ineffective-assistance-of-counsel claim
requires that an appellant “allege facts that , if proven by a fair preponderance of the
evidence, would satisfy the tw o-prong test” established in Strickland. Bobo v. State, 820
N.W.2d 511, 516 (Minn. 2012). “Any doubts about whether to condu ct an evidentiary
hearing should be resolved in favo r of the defendant seeking relief.” State v. Nicks, 831
N.W.2d 493, 504 (Minn. 2013). “But the postconviction court need not hold an evidentiary
hearing when the petitioner alleges facts that, if true, are legally insufficient to entitle him
to the requested relief.” State v. Vang , 881 N.W.2d 551, 557 (M inn. 2016) (quotation
omitted); see also Minn. Stat. § 590.04, subd. 1 (201 6) (requiring an evidentiary hearing
“[u]nless the petition and the f iles and records of the proceed ing conclusively show that
the petitioner is entitled to no relief”).
Appellant was informed on the record at the time of his guilty plea that it “will likely
result in immigration consequences,” and that , even with “legal pe rmission to be here,
United States could revoke that permissi on and deport you.” Appellant acknowledged
those things and pleaded guilty. In his postcon viction affidavit, appellant claimed that he
had “no idea that he would be deported” if he pleaded guilty and that defense counsel did

9
not tell him that he “would be deported.” He argues on a ppeal that defense counsel’s
warnings at the plea hearing fell below the objective standard of reasonableness because
he was only warned that he could be deported, not that he would be deported.
In Padilla v. Kentucky , the United States Supreme Court held that the Sixth
Amendment requires defense c ounsel to inform a noncitizen client “whether his plea
carries a risk of deportation.” 559 U.S. 356 , 374, 130 S. Ct. 1470, 1486 (2010). The
Supreme Court further held that it is a violation of the first prong of Strickland for defense
counsel not to advise a noncitizen defendant of “truly clear” deportation consequences. Id.
at 369, 130 S. Ct. at 1483. Recently, the Minnesota Suprem e Court, applying Padilla,
stated, “if conviction of the charged offense cl early subjects the defendant to removal . . .
the attorney has a constitutiona l obligation to advise the de fendant of this fact,” but
otherwise “a general advisory warning about the possible immigration consequences of a
guilty plea is sufficient.” Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017).
Appellant argues that the removal consequences were clear in his situation. An alien
is not eligible for TPS if the alien is found to have been convicted of any felony or of two
or more misdemeanors committed in the United States. 8 U.S.C. § 1254a(c)(2)(B)(i). DHS
defines a felony for purposes of TPS as “a crime committed in the United States, punishable
by imprisonment for a term of more than one year, regardless of the term such alien actually
served.” 8 C.F.R. § 244.1 (2016). TPS shall be withdrawn if the alien “was not in fact
eligible for such status.” 8 U.S.C. § 1254a(c)(3)(A). Because appellant was convicted of
a felony, he is now ineligible for TPS renewal and the status may be withdrawn. 8 U.S.C.
§ 1254a(c)(2)(B)(i); 8 C.F.R. § 244.14(a)(1) (2 016). Without lawful authority to remain

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in the United States, appellant would be subject to removal proceedings. See 8 U.S.C.
§ 1229a(a)(2) (2012) (permitti ng removal on any ground of inadmissibility); 8 U.S.C.
§ 1182(a)(6)(A)(i) (providing that aliens present without admission or parole are
inadmissible).
But appellant did not claim in his affidavit that defense counsel knew of appellant’s
TPS. His affidavit contains nothing suggesting that he told his lawyer of his TPS status or
that his lawyer knew or should have known of that status from some other source. Whether
defense counsel was told of appellant’s TPS is significant because the criminal convictions
rendering a noncitizen ineligib le for TPS are different than the criminal convictions
rendering a noncitizen “inadmissible” or “deportable.” Compare 8 U.S.C.
§ 1254a(c)(2)(B)(i) (describing crimes whic h render an alien ineligible for TPS), with 8
U.S.C. §§ 1182(a)(2) (2012 & Supp. 2013) (describing crim es which render an alien
inadmissible), 1227(a)(2) (2012) (describing crimes which render an alien deportable). In
this case, sections 1182 and 1227 do not specifically address deportation or inadmissibility
for the crime of fourth-degree criminal sexual conduct. Because deportation or removal is
not a clear statutory consequence of a conviction of fourth-degree criminal sexual conduct,
constitutionally effective assistance of counsel would typically only involve a general
warning. See Sanchez, 890 N.W.2d at 722 (providing that a general warning about possible
immigration consequences is sufficient if the relevant immigration statutes do not clearly
subject the defendant to a risk of removal).
But when a defendant has TPS, a conviction of any felony, regardless of type, would
clearly render him ineligible for TPS, and e ffective assistance of counsel would require

11
defense counsel to give correct advice as to the risk of removal. See Padilla, 559 U.S. at
369, 130 S. Ct. at 1483 (“[W]hen the deportation consequence is truly clear . . . the duty to
give correct advice is equally clear.”).
It is axiomatic that, in order for an attorney to provide effective assistance of counsel
concerning the risks of removal, the defenda nt must provide the attorney with the
information necessary to provide such effective assistance. We are required to “judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct” and to consider whether “counsel’s assistance was
reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 690, 104 S. Ct.
at 2065, 2066. Absent a claim that defense counsel was told that appellant had TPS and
nevertheless provided incorrect advice, appellant has not ca rried his burden of
demonstrating that defense counsel’s perform ance fell below an objective standard of
reasonableness. We do not read Strickland or Padilla to require that counsel be aware of
every possible permutation of immigration law as it might apply to a client’s undisclosed
status. Moreover, appellant was informed on the record of the very risks that attend a TPS-
holder’s felony conviction: that the United States could revoke legal permission to remain
in the United States, and deport appellant. He pleaded guilty having been so advised.
Additionally, and regardless of whether his attorney’s advice was sufficient,
appellant did not satisfy his burden concerning the second prong of the Strickland test.
Appellant was required to demonstrate that, but for the ineffective representation, he would
not have entered the guilty plea. State v. Ecker , 524 N.W.2d 712, 718 (Minn. 1994).
Appellant’s affidavit states that he was not told by defense counsel that he “would be

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deported,” but nowhere in the affidavit does appellant claim that he would not have entered
a guilty plea if defense counsel had used th e word “would” instead of “could.” Although
appellant argued to the postconviction court and on appeal that there is a reasonable
possibility that he would not have entered the guilty plea if he had been informed about the
effects on his TPS, his own affidavit makes no such claim.
The postconviction court sh ould hold an evidentiary h earing if there are doubts
about whether to do so. Nicks, 831 N.W.2d at 504. But he re, the postconviction court
could conclusively determine from the record, including appellant’s affidavit and the plea-
hearing transcript, that appellant was entitled to no postconviction relief.
Affirmed.