Daniel Onguenyi Nyagoko, petitioner, Respondent,

This opinion will be unpublished and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
A16-1958

Daniel Onguenyi Nyagoko, petitioner,
Respondent,

vs.

State of Minnesota,
Appellant.

Filed July 24, 2017
Affirmed
Smith, Tracy M., Judge
Concurring specially, Connolly, Judge

Hennepin County District Court
File No. 27-CR-13-25344

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for respondent)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Pr esiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Daniel Onguenyi Nyagoko is a former lawful permanent resident who
was removed from the United States followi ng his conviction of gross-misdemeanor

2
criminal abuse. Following his removal, Nyagoko filed a postconviction petition requesting
to withdraw his guilty plea. Nyagoko argued that he had received ineffective assistance of
counsel because his attorneys affirmatively misadvised him that his conviction would not
render him inadmissible to the United States under immigration law and, therefore, would
not prevent him from returning to the United States in the future. The district court granted
Nyagoko’s petition. The state argues on appeal that the di strict court erred because
(1) Nyagoko’s attorneys had no affirmative duty to advise him abou t the inadmissibility
consequences of his plea and (2) misadvice regarding a collateral consequence cannot be
ineffective assistance of counsel. Because misadvice regarding a co llateral consequence
can be ineffective assistance of counsel and the district court did not abuse its discretion in
concluding that Nyagoko was misadvised in violation of his right to effective assistance of
counsel, we affirm.
FACTS
Nyagoko is a citizen of Kenya who entered the United States as a lawful permanent
resident in August 2011. In August 2013 , Nyagoko was charged with three counts of
criminal sexual conduct. A public defender (“ trial counsel”) was appointed to represent
Nyagoko. The prosecutor e-mailed trial counsel a plea agreement, proposing that Nyagoko
plead guilty to gross-misdemeanor criminal abuse and serve “120” days. Trial counsel
understood the plea agreement as requiring Nyag oko to be sentenced to 364 days and to
serve 180 days in custody, with the possibility of being released after 120 days.
Trial counsel forwarded this e-mail to an attorney who advises the public defender’s
office and its clients on the immigration consequences of criminal matters (“ Padilla

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counsel”). Padilla counsel misinterpreted the plea agreement as requiring Nyagoko to be
sentenced only to a term of imprisonment of 120 days. Believing that Nyagoko would
receive a 120-day sentence, Padilla counsel advised Nyagoko about two particular
immigration consequences: deportability and inadmissibility. Deportability is the
determination that a noncitizen who was lawfully admitted is subject to removal from the
United States. 8 U.S.C. §§ 1227 (2012). Padilla counsel advised Nyagoko that he would
likely be deported if convicted because an immigration judge would find that gross-
misdemeanor criminal abuse is a crime involvi ng moral turpitude. Inadmissibility is the
determination that a noncitizen is “ineligible to receive visas and ineligible to be admitted
to the United States.” 8 U.S.C. § 1182(a ) (2012). A noncitizen who commits a crime
involving moral turpitude is ge nerally inadmissible for an indefinite period of time. Id.,
(a)(2)(A). But Padilla counsel advised Nyagoko that he would be eligible for the petty-
offense exception to inadmissibility because the term of imprisonment did not exceed 180
days. Under this exception, Nyagoko would be e ligible to return to the United States in
the future.
Nyagoko pleaded guilty to gross-misdemeanor criminal abuse and was sentenced to
364 days, 180 days of which he was required to serve and the remainder of which would
be stayed for two years. Nyagoko signed a plea petition, stating, “I understand . . . this
guilty plea may result in my re moval from the United States and/or stop me from being
able to legally enter or reenter the United States.”
Several months later, Nyagoko was pl aced in removal proceedings. The
immigration judge concluded that gross- misdemeanor criminal abuse was a crime

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involving moral turpitude and ordered that Nyagoko be removed to Kenya. Nyagoko now
resides in Kenya. Because Nyagoko received a sentence of 364 days—and not 120 days
as Padilla counsel believed—he does not qualify fo r the petty-offense exception and is
inadmissible.
Nyagoko filed a petition fo r postconviction relief on December 18, 2015, asserting
that he was not properly advised of the immi gration consequences of his plea and would
not have pleaded guilty had he been properly advised.
The district court conducted an evidentiary hearing at which Nyagoko, trial counsel,
Padilla counsel, and an immigration-law expert tes tified. Trial counsel testified that she
relied on Padilla counsel to provide Nyagoko with advice about the immigration
consequences of the plea. Padilla counsel testified that Nyagoko received proper advice
about the deportability consequences of the plea but that he received incorrect advice about
inadmissibility because his sent ence exceeded 180 days and he therefore did not qualify
for the petty-offense exception. The expert testif ied that the inadmissibility advice fell
below the professional standards for advice on immigration consequences.
The district court concluded that a “communication breakdown” between Padilla
counsel and trial counsel led to a misunderstanding about the inadmissibility consequences
of the plea and that, “[u]nder Padilla, [the] affirmative misadvice regarding immigration
consequences of the guilty plea, amounts to deficient performance.”
1 The district court
found Nyagoko credible with respect to his testimony that he would not have pleaded guilty

1 The district court rejected Nyagoko’s claim that he was misadvised regarding deportation
consequences, but Nyagoko does not challenge that decision on appeal.

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had he known he would be in admissible. The district court concluded that Nyagoko
received ineffective assistance of counsel a nd, therefore, that his guilty plea was not
intelligent and voluntary. The district court granted Nya goko’s postconviction petition,
vacated his guilty plea and conviction, and reinstated the initial charges against Nyagoko.
The state appeals. 2
D E C I S I O N
The state argues that the postconvic tion court erred in granting Nyagoko’s
postconviction petition because defense counsel has no affirmative duty to advise a
criminal defendant of the collateral conse quences of a plea. Nyagoko argues that—
regardless of whether his attorneys had an affirmative duty to advise him about the
inadmissibility consequences of his plea— he was affirmatively misadvised about a
collateral consequence and the misadvice constituted ineffective assistance of counsel.3
Appellate courts review a postconvic tion court’s decision on a postconviction
petition for an abuse of discretion. Sanchez v. State , 890 N.W.2d 716, 719-20 (Minn.

2 Nyagoko filed a cross-appeal related to a warra nt of apprehension filed after the district
court granted Nyagoko’s postconviction petition. We dismissed Nyagoko’s cross-appeal.
Nyagoko v. State, Nos. A16-1958, A17-0226 (Minn. App. Feb. 14, 2017) (order).

3 Both parties also address whether the U.S. Supreme Court’s holding in Padilla v.
Kentucky requires an attorney to affirmativel y advise a noncitizen defendant about the
inadmissibility consequences of a plea. 55 9 U.S. 356, 130 S. Ct. 1473 (2010). Padilla
holds that defense attorneys must affirmatively advise a noncitizen defendant about the
deportation consequences of a plea. Id. at 368, 130 S. Ct. at 148 3. Because we conclude
that Nyagoko received ineffective assistance of counsel as a result of his attorneys’
affirmative misadvice about a collateral cons equence of his plea , we do not address
whether Nyagoko’s attorneys had an affirmative duty to advise him of the inadmissibility
consequences of his plea.

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2017). “A postconviction court abuses its di scretion when its decision is based on an
erroneous view of the law or is agains t logic and the facts in the record.” Id. at 720
(quotation omitted). A postconviction court must allow a defendant to withdraw a plea if
the plea is constitutionally invalid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). To
be valid, a guilty plea must be accurate, voluntary, and intelligent. Id.
Ineffective assistance of counsel renders a guilty plea involuntary and unintelligent.
Sanchez v. State, 868 N.W.2d 282, 286 (Minn. App. 2015), aff’d, 890 N.W.2d 716 (Minn.
2017). “[C]ounsel plays a key role in ensuri ng that any plea is intelligent by explaining
the charges, the rights to be waived , and the consequences of the plea.” Taylor v. State,
887 N.W.2d 821, 823 (Minn. 2016). Counsel , however, is generally not required to
affirmatively advise a defendant concerning the collateral consequences of the plea. Kaiser
v. State , 641 N.W.2d 900, 901 (M inn. 2002). Collateral consequences “are not
punishment” but “are civil and regulatory in nature and are imposed in the interest of public
safety.” Id. at 905. But affirmative misadvice about a collateral consequence renders a
guilty plea constitutionally invalid when such misadvice amounts to ineffective assistance
of counsel. State v. Ellis-Strong, ___ N.W.2d ___, ___, No. A16-1260, slip op. at 1 (Minn.
App. June 19, 2017).
A defendant is deprived of the constitutional right to effective assistance of counsel
when counsel fails to render adequate legal assistance. Strickland v. Washington, 466 U.S.
668, 686, 104 S. Ct. 2052, 20 63-64 (1984) (quotation omitted); State v. Hokanson , 821
N.W.2d 340, 357 (Minn. 2012). To prevail on an argument of ineffective assistance of
counsel, the defendant must show that (1) the trial counsel’s “representation fell below an

7
objective standard of reasonableness” and (2) “there is a reasonable probability that, but
for the counsel’s unprofessional errors, the result of the proceedi ng would have been
different.” Hokanson, 821 N.W.2d at 357 (quotation om itted). “Because claims of
ineffective assistance of counsel are mixed questions of law and fact, we review the
postconviction court’s legal conclusions on such questions de novo.” State v. Nicks, 831
N.W.2d 493, 503 (Minn. 2013). “[W]hen we review a postc onviction court’s denial of
relief on a claim of ineffective assistance of counsel, we will consider the court’s factual
findings that are supported in the record” and “conduct a de novo review of the legal
implication of those facts on the ineffective assistance claim.” Id. at 503-04.
Both parties agree that inad missibility is civil and regu latory in nature and is
therefore a collateral consequence. See Kaiser, 641 N.W.2d at 905. Misadvice regarding
inadmissibility consequences thus may constitute ineffective assistance of counsel. Ellis-
Strong, slip op. at 14-17.
In reviewing Nyagoko’s ineffective-assi stance-of-counsel argument, the first
question is whether the affirmative misadvice Nyagoko received about the inadmissibility
consequences of his plea fell below an “objective standard of reasonableness.” Hokanson,
821 N.W.2d at 357 (quotation omitted). Th e state does not dispute that Nyagoko’s
attorneys misadvised him about the inadmissibility consequences of his guilty plea. We
review de novo the legal implications of the district court’s factual findings with respect to
the objective standard of reasonableness. Nicks, 831 N.W.2d at 503-04. The district court
found that Padilla counsel believed that Nyagoko woul d receive a 120-day sentence and
therefore advised him that he would be eligible for th e petty-offense exception to

8
inadmissibility. In order to qualify for the petty-offense exception, Nyagoko had to receive
a sentence not “in excess of 6 months (regardle ss of the extent to which the sentence was
ultimately executed).” See 8 U.S.C. § 1182(a)(2)(A)(ii). Th e district court found that
Nyagoko received a sentence of 364 days and, as a result, did not qualify for the petty-
offense exception. The distri ct court thus found, and Padilla counsel acknowledged, that
Nyagoko was misadvised about the inadmissibility consequenc es of his plea. Because
Nyagoko was misadvised about a collateral c onsequence of his guilty plea, the advice
Nyagoko received fell below an objec tive standard of reasonableness. See Ellis-Strong,
slip. op. at 14.
But the state argues that our decision in State v. Brown , which holds that
misinformation about a collateral consequence does not render a guilty plea unintelligent,
bars Nyagoko’s argument that affirmative misadvice about a collateral consequence falls
below an objective standard of reasonableness. ___ N.W.2d ___, No . A16-1619, slip op.
at 1 (Minn. App. May 8, 2017). In Ellis-Strong, however, we concluded that Brown does
not extend to claims of ineffective assistance of counsel. Slip op. at 8. The district court
thus did not err in concluding that the advi ce Nyagoko received about the inadmissibility
consequences of his plea fell below an objective standard of reasonableness. Id.
The state also argues that Nyagoko ackn owledged in his plea petition that “this
guilty plea may result in my re moval from the United States and/or stop me from being
able to legally enter or re-enter the United States.” Accordingly, the state argues that any
misadvice is irrelevant because he had notice that he may be found inadmissible as a result
of his conviction. Direct testimony at the hearing, which the district court found credible,

9
contradicts the plea petition. Padilla counsel testified that she incorrectly advised Nyagoko
that he qualified for the pe tty-offense exception, and Nyagoko testified that he relied on
that misadvice. The district court did not err in determining, notwithstanding the plea
petition, that Nyagoko was misadvised about the inadmissibility consequences of his plea.
The second question is whether there is a reasonable probability that the result of
the proceeding would have been different but for the incorrect advice Nyagoko received.
Hokanson, 821 N.W.2d at 357. “In order to sa tisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 36 6, 370 (1985). Based on Nyag oko’s testimony, the district
court found that Nyagoko “would not have entered the plea if he received correct advice
regarding immigration.” The state argues that Nyagoko was not credible. But we defer to
the credibility determinations of the district court. State v. Kramer, 668 N.W.2d 32, 38
(Minn. App. 2003), review denied (Minn. Nov. 18, 2003). The district court thus did not
err in concluding that Nyagoko established that he would have gone to trial rather than
plead guilty if he had not received ina ccurate advice abou t the inadmissibility
consequences of his plea. Hokanson, 821 N.2d at 357.
Because the district court did not err in concluding that Nyagoko received
ineffective assistance of counsel, the district court did not abuse its discretion in granting
Nyagoko’s postconviction petition. Sanchez, 890 N.W.2d at 719-20.
Affirmed.

CS-1

CONNOLLY, Judge (concurring specially)
I agree with the majority and with the district court’s thoughtful opinion that
appellant should be allowed to withdraw his plea. I write separately to comment on the
current Hennepin County Public Defender polic y mentioned in this case. According to
testimony at appellant’s post-conviction hearing, the Hennepin County Public Defender’s
Office, as a rule, does not “put anything regarding the client’s immigration advice,
immigration status, the fact that the client’s an immigrant, on the r ecord.” As a former
district court judge in the Fourth Judicial District, I have the highest regard for the attorneys
in this office. Nevertheless, my concern is that the current policy, as applied, will result in
a continued pattern of incomp lete records and uninformed de cisions made by individuals
who have grave concerns about the immigration consequences of their criminal cases.
The Minnesota Rules of Criminal Proced ure require a defendant pleading guilty to
a gross misdemeanor to “understand[] that, if the defendant is not a citizen of the United
States, a guilty plea may result in deportation, exclusion from admission to the United
States, or denial of naturalization as a Unite d States citizen.” Minn. R. Crim. P. 15.02,
subd. 1(3). Accordingly, appellant’s plea petition included similar language requiring his
acknowledgment. This goal would be better served by including some discussion of those
consequences on the record.
Here, because of off-the-reco rd miscommunication between Padilla counsel and
trial counsel as to the petty-offense exception, appellant pleaded guilty but still lost the
main factor driving his plea: the ability to reenter the United States. The district court
described the miscommunication between counsel and its result as follows:

CS-2

[Padilla counsel] understood the agreement to be 120 days
total, including any stayed time. This is not consistent with
[trial counsel’s] understanding of the agreement which was a
364-day stayed sentence with 120 actual days in, which would
mean the interim jail sanction wa s 180 days with good time.
[Padilla counsel] conceded that th ere was confusion over the
sentence and that she was not aware of the 364-day stayed
sentence. [She] testified that 364-days would have been a “red
flag” and that such a sentence would not fit within the petty
offense exception.
. . . The misunderstanding of the sentence between the
two attorneys led to counsel affirmatively misadvising
[appellant] that he would qu alify for the petty offense
exception and could be permitted to return to the country in the
future.

Had some discussion been put on the record at his plea h earing, either the district
court or counsel may have been alerted to the fact that appellant’s sentence would not have
permitted him to reenter the United States. At the very least, a complete record would have
been made.
Padilla counsel testified at appellant’s post- conviction hearing as to the purpose
behind the office policy:
Well, there’s a couple of different reasons. I mean, first of all,
Padilla is a Sixth Amendment right, so it goes to our work with
our client. We’re very prot ective of our attorney-client
privilege. So, that’s part of th e reason. We don’t talk about
the advice or the work that we do with a client on the record.
The second reason is . . . that a client’s admission in court can
actually have detrimental effe cts for them. They can be
charged with a crime, sometimes illegal reentry or illegal entry.
They’re not given right[s advisories] against self-
incrimination. So, there’s a lo t of different reasons why we
don’t, but all of the reasons are geared towa rds our work
defending a particular client.

CS-3

I certainly am not suggesting that any atto rney-client privilege or the right against
self-incrimination be violated. But to avoid circumstances such as those arising in this
case, further discussion on the record is necessary so defe ndants can make an informed
decision. Moreover, if the reco rd is intentionally silent, appe llate courts will look to the
plea petition and assume that defenda nts were correctly advised. See Anderson v. State ,
746 N.W.2d 901, 905-06 (Minn. App. 2008) (rejecting appellant’s argument that the
district court promised a shorter sentence where the record was silent on the issue and the
plea petition did not include evidence of other agreed-upon te rms or promises), review
denied (Minn. Nov. 24, 2009). Because no one wanted to discuss the key details of
appellant’s circumstances and how the sentence would have impacted them on the record,
appellant was left with the impression that he could be readmitted to the United States.
Unfortunately for appellant, this was not the case.