Wilson Nduri Tindi, 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This opinion will be unpublished and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
A17-0724

Wilson Nduri Tindi, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 11, 2017
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-14-35561

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

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

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and
Reyes, Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this appeal from an order denying po stconviction relief, appellant Wilson Nduri
Tindi challenges the district court’s denial of his postconviction pe tition, arguing that he
received ineffective assistance of counsel becau se his trial attorney failed to warn him of
the immigration consequences of his guilty plea, and that the district court violated Minn.
R. Crim. P. 15.01 by failing to warn him of any immigration consequences during the plea
hearing. Because we conclude that the im migration consequences of appellant’s guilty
plea were not truly cl ear and because the plea petition wa rned appellant of the potential
immigration consequences, we affirm.
FACTS
On November 16, 2015, appellant, a native of Kenya and a permanent resident of
the United States, pleaded guilty to one count of criminal sexual conduct in the fourth
degree in violation of Minn. Stat. § 609.345, subd. 1(d) (2014).
On the way to the plea hearing, appellant asked his attorney about the immigration
consequences of his plea. Appellant’s at torney replied that he was unsure of the
consequences because he was not an immigration attorney.
During the plea hearing, appellant’s attorn ey reviewed with hi m a four-page plea
petition outlining his rights and waivers. Appellant testified that he reviewed the petition
line-by-line with his attorney who answered his questions , and that he understood
everything his attorney explai ned to him. Appellant’s si gned plea petition specifically
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provided: “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 . . . .”
The district court accepted appellant’s guilty plea and sentenced him according to
the plea agreement. The Department of Homeland Security then commenced the
deportation process and an immigration judge sustained appellant’s removal. Appellant
filed a postconviction motion in the district court seeking withdraw al of his guilty plea
based on the ineffective assistance of counsel and the district court’s violation of rule 15.01.
At the hearing, the district court denied appellant’s postconviction motion, finding
that appellant’s attorney was not required to provide him with heightened immigration
warnings because the immigration consequences of appellant’s guilty plea were not truly
clear. The district court did not address appella nt’s rule 15.01 viola tion allegation. This
appeal follows.
D E C I S I O N
I. Ineffective Assistance of Counsel
“We review a denial of a petition for post conviction relief . . . for an abuse of
discretion. A postconviction court abuses its discretion when its decision is based on an
erroneous view of the law or is agains t logic and the facts in the record.” Riley v. State,
819 N.W.2d 162, 167 (Minn. 2012) (citations and quotations omitted). In reviewing a
postconviction court’s denial of relief, we will consider the court’s factual findings that are
supported in the record, conduct a de novo review of the legal implication of those facts on
the ineffective assistance claim, and either affirm the court’s decision or conclude that the
4
court abused its discretion because postconviction relief is warranted. State v. Nicks, 831
N.W.2d 493, 503-04 (Minn. 2013).
Appellant contends that his trial counsel was ineffective because he failed to do any
research or provide any advice regarding the immigration consequences of his plea. The
state contends that appellant ’s trial counsel was not re quired to provide him with
heightened immigration warnin gs because the immigration co nsequences of appellant’s
guilty plea were not truly clear. The distri ct court determined that the immigration
consequences of appellant’s guilty plea were not truly clear because fourth-degree criminal
sexual conduct does not contain a “use of force” element. We agree that the immigration
consequences were not truly clear.
When an ineffective-assistan ce-of-counsel claim is prop erly raised in a direct
appeal, we examine the claim under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). State v. Ellis-Strong, 899
N.W.2d 531, 535 (Minn. App. 2017). The defe ndant must 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, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. A reviewing court need not analyze both elements of
the test if either one is determinative. Staunton v. State , 784 N.W.2d 289, 300 (Minn.
5
2010). Here, we need only consider the fi rst prong as appellant received reasonable
representation.
A. Deportation Consequences
When the immigration consequences of a defendant’s guilty plea are clear, trial
counsel has a duty to in form her client as to those conse quences and the failure to do so
renders counsel’s assistance ineffective. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130
S. Ct. 1473, 1483 (2010). But, “[w]hen the law is not succinct and straightforward . . . , a
criminal defense attorney need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences.” Id. at 369, 130
S. Ct. at 1483.
“It is quintessentially the duty of counsel to provide her client with available advice
about an issue like deportation.” Id. at 371, 130 S. Ct. at 1484. Under Padilla, “criminal-
defense attorneys must take some affirmative steps before allowing a noncitizen client to
accept a plea deal. First, at a minimum, an attorney must review the relevant immigration
statutes to determine whether a conviction will subject the defe ndant to a risk of removal
from the United States.” Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017).
Padilla and Sanchez proclaim a criminal-defense attorney’s threshold duty to
review the applicable immigration statutes to determine whether the law is truly clear at
the time a defendant pleads guilty. The record here is devoid of evidence showing whether
appellant’s trial counsel did so. It is unreasonable for a criminal-defense attorney to fail to
conduct research to determine if her client will be deported upon pleading guilty, especially
6
after her client specifically inquires about it. However, the first Strickland prong is not
satisfied here because the immigration conse quences of appellant’s guilty plea were not
truly clear.
While trial counsel has a duty to review the applicable immigration statutes, Padilla
failed to resolve whether she is obligated to review only the statutes (the strict
interpretation), or whether she must also review relevant administrative interpretations and
caselaw (the expansive interpretation). Sanchez, 890 N.W.2d at 721. Sanchez did not
determine which interpretation is binding in Minnesota, but the court suggested that the
issue need not be answered when the immigration conseque nces of a guilty plea are not
truly clear under either view. Id. at 722. As in Sanchez, the immigration consequences
here were not truly clear under either view.
“Under the strict interpretation of Padilla, an attorney representing a noncitizen
defendant must only review the relevant immigr ation statutes and then advise his or her
client about the immigration consequences of a plea.” Id. (citing Padilla, 559 U.S. at 368-
69, 130 S. Ct. at 1473).
The district court identifie d 8 U.S.C. § 1227 (2012), which outlines a variety of
crimes that subject aliens to deportation, as applicable to appellant, In particular, the statute
provides that “[a]ny alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The statute clearly subjects
aliens convicted of aggravated felonies to deportation. But the de finition of “aggravated
felony” is less clear. “Aggrava ted felony” is broadly define d in 8 U.S.C. § 1101(a)(43)
7
(2012) and includes many qualifying acts. Most applicable to appellant’s case is “a crime
of violence” which is further defined as:
(a) an offense that has as an element the use, attempted
use, or threatened use of phys ical force against the person or
property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial ri sk that physical force against
the person or property of another may be used in the course of
committing the offense.

18 U.S.C. § 16 (2012); 8 U.S.C. § 1101(a)(43)(F) (2012). “Physical force” is not defined.
At the time of appellant’s crime, Minne sota law provided th at “[a] person who
engages in sexual contact with another person is guilty of cr iminal sexual conduct in the
fourth degree if any of the following circumstances exists: . . . the actor knows or has reason
to know that the compla inant is mentally impaired, menta lly incapacitated, or physically
helpless.” Minn. Stat. § 609.345, subd. 1(d). “Sexual contact” for purposes of appellant’s
crime includes five different variations of t ouching intimate parts via direct touch or
through clothing or seminal fluids. Minn. Stat. § 609.341, su bd. 11(a) (2014). Such acts
must be “committed without th e complainant’s consent, ex cept in those cases where
consent is not a defense, and committed with sexual or aggressive intent.” Id.
Based on a review of the statutory lang uage only, it was not truly clear whether
appellant’s crime had the use of physical fo rce as an element or otherwise involved a
substantial risk that physical force would be used. Under the strict interpretation of Padilla,
appellant’s attorney did not have a duty to provide him with heightened immigration
warnings because the applicable law was not truly clear.
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An expansive interpretation of Padilla “would require criminal-defense attorneys to
review not only the relevant federal immi gration statutes, but also case law and
administrative interpretations, when eval uating whether the law is truly clear.” Sanchez,
890 N.W.2d at 723. Determining whether it was truly clear that fourth-degree criminal
sexual conduct had the use of physical force as an elemen t or otherwise involved a
substantial risk that physical force would be used requires examining additional sources.
Appellant first contends that fourth-degr ee criminal sexual conduct is a qualifying
crime of violence because it is so defined by Minn. Stat. § 624.712, subd. 5 (2014) (listing
fourth-degree criminal sexual conduct as a “c rime of violence”). However, this statute
does not indicate that its definitions are base d in any way on the degree of any use or
substantial threat of physical force, as is found in the federal definition. Compare Minn.
Stat. § 624.712, subd. 5, with 18 U.S.C. § 16(b). Moreover, th e state statute itself limits
the scope of the definitions to a portion of a subchapter of the fire arms and other crimes
chapter, unrelated to the immigration and criminal sexual conduct statutes at issue in this
case. Section 624.712 is inapposite.
Appellant next contends that caselaw cl early interprets fourth-degree criminal
sexual conduct as a crime of violence. Here, the question is not whether the state fourth-
degree criminal sexual conduct crime may be considered a crime of violence under the
federal statute, but whether th e answer was truly clear at the time of appellant’s plea
hearing. Appellant relies on two cases that interpret the federal sentencing guidelines
manual, which previously defined a crime of violence as “any offense under federal or state
9
law, punishable by imprisonment for a term exceeding one year, that . . . otherwise involves
conduct that presents a serious potential risk of physical injury to another.” U.S.
Sentencing Guidelines Manual (USSG) § 4B1.2(a)(2) (U.S. Sentencing Comm’n 2011).
In United States v. Craig , the Eighth Circuit determin ed that a conviction under
Tennessee’s sexual-battery statute constituted a crime of violence as defined in the federal
sentencing guidelines because the crime “c reates a substantial risk of a violent
confrontation and involves purposeful, violen t, and aggressive behavior.” 630 F.3d 717,
724 (8th Cir. 2011) (quotation om itted). One year later, that court held that a conviction
under Arkansas’s second-degree sexual-assa ult statute was “categorically a crime of
violence” because it occurs “without the victim’s consent” and thus creates a “substantial
risk of a violent face-to-face confrontation should the victim, or another person who would
protect the victim, become aware of what is happening.” United States v. Dawn, 685 F.3d
790, 797-98 (8th Cir. 2012) (quotation omitted).
Because the former definition in USSG § 4B1.2(a)(2) is similar to the current
definition in 18 U.S.C. § 16(b), Craig’s and Dawn’s interpretations are instructive. But
because they do not directly interpret 18 U.S.C. § 16(b), th ey are not controlling and do
not clearly establish whether appellant’s crime was a crime of violence. Indeed, the United
States Supreme Court has previously distingui shed the language in USSG § 4B1.2(a)(2)
from the language in 18 U.S.C. § 16(b). See Leocal v. Ashcroft , 543 U.S. 1, 10 n.7, 125
S. Ct. 377, 383 (2004).
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Further, appellant’s argument in favor of the “crime of violence” definition in 18
U.S.C. § 16(b) may be moot. Currently before the United States Supreme Court is a Ninth
Circuit case holding that 18 U.S.C. § 16(b) is unconstitutionally vague in light of the
holding in Johnson v. United States, 135 S. Ct. 2551 (2015). Dimaya v. Lynch, 803 F.3d
1110 (9th Cir. 2015), cert. granted, 35 S. Ct. 31 (U.S. Sept. 29, 2016) (No. 15-1498). In
Johnson, the Supreme Court struck down 18 U.S. C. § 924(e)(2)(B)(ii) (2012) defining a
violent felony as “any crime punishable by imprisonment for a term exceeding one
year . . . that . . . involves conduct that presen ts a serious potential risk of physical injury
to another.” 135 S. Ct. 2551. The Court held that the provision “produce[d] more
unpredictability and arbitrarin ess than the Due Process Clau se tolerates” by “combining
indeterminacy about how to m easure the risk posed by a crim e with indeterminacy about
how much risk it takes for the crime to qualify as a violent felony.” Id. at 2558.
In Dimaya, the Ninth Circuit concluded that Johnson’s ruling applied to the similar
clause contained in 18 U.S.C. § 16(b) because that provision “requires courts to 1) measure
the risk by an indeterminate statute of a j udicially imagined ordi nary case, not by real
world-facts or statute elements and 2) determine by vague and uncertain standards when a
risk is sufficiently substantial.” 803 F.3d at 1120 (quotation marks omitted). Accordingly,
the court held that 18 U.S.C. § 16(b) was unconstitutionally vague. Id.
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The Supreme Court coul d decide that 18 U.S.C. § 16(b) is not unconstitutionally
vague.1 But its consideration by the Court persuasi vely indicates that its interpretation is
not truly clear. If appellant’s trial counsel had researched the caselaw, he would have found
that whether appellant’s fourth-degree crim inal-sexual-conduct conviction constitutes a
crime of violence was not truly clear. Even if appellant’s counsel had unreasonably failed
to satisfy his threshold duty of conducting research, the first Strickland prong is not
satisfied because under either th e strict or expansive view of Padilla, the immigration
consequences of appellant’s guilty plea were not truly cl ear. Appellant’s plea agreement
adequately warned him of the possible immigration consequences of his plea. Because this
prong is determinative, we need not address the second Strickland prong.
B. Inadmissibility Consequences
Appellant contends in his pro se brie f that his crime clearly rendered him
inadmissible because it constituted a crime of moral turpitude. Federal law provides that
“any alien convicted of, or who admits having committed, or who admits committing acts
which constitute the essential elements of . . . a crime involving moral turpitude (other than
a purely political offense) or an attempt or conspiracy to comm it such a crime” is
inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012).

1 In his supplemental pro se brief, appellant cites authority from se ven different circuits
holding that “non-consent of the victim is the criterion for determining whether the offense
involves a substantial risk of physical force.” But appellant fails to cite any such authority
from the Eighth Circuit, and with one exception all of the authority cited relies on 18 U.S.C.
§ 16(b), currently before the Supreme Court. That exception, United States v. Mack , 53
F.3d 126, 128 (6th Cir. 1995), relies on 18 U.S. C. § 924(e)(2)(B)(ii) , struck down by
Johnson.
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“Congress has not defined the phrase ‘cri me involving moral turpitude,’ and the
meaning of that phrase was left ‘to future administrative a nd judicial interpretation.’”
Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004) (quoting Franklin v. INS , 72
F.3d 571, 572 (8th Cir. 1995)) (other quotation omitted).
Moral turpitude refers generally to conduct which is inherently
base, vile, or depraved, and cont rary to the accepted rules of
morality and the duties owed between persons or to society in
general. Moral turpitude has been defined as an act which is
per se morally reprehensible and intrinsically wrong or malum
in se. . . . Among the tests to determine if a crime involves
moral turpitude is whether the act is accompanied by a vicious
motive or corrupt mind.

Bobadilla v. Holder, 679 F.3d 1052, 1054 (8th Cir. 2012) (quoting Chanmouny, 376 F.3d
at 811-12) (other quotation omitted). “With out question, the term is ambiguous.”
Bobadilla, 679 F.3d at 1054.
While appellant’s crime may have been co nsidered a crime of moral turpitude based
on Minnesota’s requirement that sexual contact be “committed with sexual or aggressive
intent,” Minn. Stat. § 609.341, subd. 11(a), he fails to cite any binding authority clearly
determining whether criminal sexual conduct in fact did constitute a crime of moral
turpitude. As with the deportation conseque nces, the inadmissibility consequences of
appellant’s plea were not truly clear. The immigration warning provided in the plea
petition, as discussed with trial counsel, satis fied counsel’s duties. Appellant’s trial
counsel’s assistance was not ineffective.

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II. Rule 15.01
Appellant contends that the district c ourt failed to give him the immigration
advisory required by rule 15.01, rendering his guilty plea unintellig ent and involuntary.
The state contends that the criminal proced ural requirements were met because appellant
signed a plea petition that alerted him to the immigration consequences of his guilty plea.
“Assessing the validity of a plea presents a question of law that we review de novo.”
State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010). Before accepting a guilty plea, the
district court must “ensure defense counse l has told the defendant and the defendant
understands: . . . [i]f the defe ndant is not a citizen of the United States, a guilty plea may
result in deportation, exclusion from admiss ion to the United States, or denial of
naturalization as a United States citizen.” Minn. R. Crim. P. 15.01, subd. 1(6)(1).
Generally, “a defendant will not be permitted to plead anew simply because the trial
court did not personally question the defendant.” State v. Milton , 295 N.W.2d 94, 95
(Minn. 1980). A district court’s “failure to follow the suggested question in Minn. R. Crim.
P. 15.01 verbatim is not fatal. . . . [F]ailure to interrogate a defendant as set forth in rule
15.01 . . . does not invalidate a guilty plea.” State v. Doughman , 340 N.W.2d 348, 351
(Minn. App. 1983), review denied (Minn. Mar. 15, 1984). This court has held that a district
court’s failure to follow rule 15.01 procedur es does not invalidate a guilty plea when
defendant’s counsel testified that he discussed the rights contained in the petition with the
defendant. State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988), review denied (Minn.
Apr. 26, 1988). The supreme court has held the same. State v. Greenfield, 291 Minn. 534,
14
535, 191 N.W.2d 398, 400 (1971) (holding a defendant “will not be afforded an opportunity
to plead anew even if [an atto rney] elicited some of the info rmation rather than the trial
court.”).
Here, appellant signed a plea petition that explicitly contained the immigration
advisory required by rule 15.01, and he testified at the plea hearing that he had discussed
those rights with his attorney to his unders tanding and satisfaction. Under current law,
appellant’s plea agreement satisfi ed the rule 15.01 requiremen t and the district court did
not violate the rule by failing to personally question him.
We affirm appellant’s guilty plea because his trial counsel was not obligated to
provide him with heightened immigration warnings, a nd because we find no binding
authority imposing an independent obligation on a district court to independently question
a defendant. But we note that current authority pre-dates the holdings of Padilla and
Sanchez. Accordingly, we take this opportunity to note the need to review a district court’s
rule 15.01 obligations in light of Padilla and Sanchez.
In Campos v. State, 816 N.W.2d 480, 483 n.2, 500 (Minn. 2012), the supreme court
remanded the question of whether the defendant properly received the rule 15.01 advisory
because the plea petition containing the standa rd immigration advisory was not in the
record and because neither defense counsel nor the district court questioned the defendant
on immigration consequences at the plea he aring. The dissent agreed that “the
ineffectiveness of [the defendant]’s counsel was compounded by the district court’s failure
15
to provide the immigration adviso ries required under the rule.” Id. at 508 (Page, J.,
dissenting).
As noted in Padilla,
The landscape of federal immigration law has changed
dramatically over the last 90 years. While once there was only
a narrow class of deportable offenses and judges wielded broad
discretionary authority to pr event deportation, immigration
reforms over time have expanded the class of deportable
offenses and limited the authority of judges to alleviate the
harsh consequences of deportatio n. . . . These changes to our
immigration law have dramatica lly raised the stakes of a
noncitizen’s criminal conviction. The importance of accurate
legal advice for noncitizens accused of crimes has never been
more important. These changes confirm our view that, as a
matter of federal law, deportatio n is an integral part—indeed,
sometimes the most important part—of the penalty that may be
imposed on noncitizen defe ndants who plead guilty to
specified crimes.

559 U.S. at 360, 364, 130 S. Ct. at 1478, 1480. In li ght of criminal-defense lawyers’
heightened duties under Padilla and Sanchez, it is unclear whether these holdings impact
any rule 15.01 district court duties. The best practice for the district court is to specifically
inquire as to that portion of the plea petition governing potential immigration
consequences, including the possibility of depo rtation, under Minn. R. Crim. P. 15.01,
subd. 1(6)(1). While current caselaw has not ma de this an obligation on the part of the
district court, it seems prudent for a dist rict court to so proceed in light of Padilla and
Sanchez.
Affirmed.