, A17-1281

This opinion will be unpublished and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
A17-1279,
A17-1281

State of Minnesota,
Respondent,

vs.

Tanka Nath Upreti,
Appellant.

Filed June 25, 2018
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Ramsey County District Court
File Nos. 62-CR-15-7889 and 62-CR-15-10026

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Connolly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this direct appeal from a final judg ment of conviction and sentence for fifth-
degree controlled-substance crime and theft of a motor vehicle, appellant Tanka Nath

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Upreti argues that the district court erred in denying his presentence motion to withdraw
his guilty pleas because it would have been fair and just to permit withdrawal based on his
lack of understanding of the immigration cons equences of his convictions. We affirm in
part, reverse in part, and remand.
FACTS
On October 6, 2015 and December 23, 2015, appellant was charged with one count
of fifth-degree controlled-substance crime a nd one count of theft of a motor vehicle,
respectively. On September 15, 2016, appe llant pleaded guilty to both offenses in
exchange for the dismissal of an unrelated case. At the plea hearing, the following
exchange occurred:
COUNSEL: You understand that this may have immigration
consequences. Correct?
APPELLANT: Correct.
COUNSEL: Those consequences could include deportation,
denial of naturalization, or exclusion. Do you understand that?
APPELLANT: Correct.
COUNSEL: And knowing that, you still wish to go forward
with this plea. Is that correct?
APPELLANT: Yes.

On October 10, 2016, an immigration attorney sent a letter to appellant’s probation
officer stating that appellant’s controlle d-substance-crime conviction rendered him
deportable from the United States and that motor vehicle theft was a crime involving moral
turpitude which led to the same result.
In February 2017, prior to sentencing, appellant moved to withdraw his guilty pleas,
arguing that he misunderstood the immigrati on consequences of his convictions. The
district court denied the motion, noting that appellant’s cases were over a year and a half

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old and that during that time, U.S. Immigration and Customs Enforcement (ICE) had held
and released appellant1 due to the charges. The district court stated:
I do not think there was a lack of understanding that
[appellant’s] plea would result in deportation given that he had
already been held by ICE. There were appearances over the
course of 10 months to discuss this matter and it was mentioned
repeatedly and certainly discusse d at the time of the plea.
Again, he had already been pi cked up, so how can he not
know?
So, I think I’m bound by th at fact in determining
whether or not it’s fair and just, it’s sort of vague. Did he know
and understand the consequences of his plea? I don’t think
there’s any question. I’m going to deny the motion.

The district court sentenced appellant to one year and one day for each offense and stayed
execution of the sentences. This appeal follows.
D E C I S I O N
A district court has discretion to allow a defendant to withdraw a guilty plea before
sentencing and its decision will only be reversed if an appellate court can “fairly conclude
that the [district] court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn.
1989). On appeal, the reviewing court “[c] onsider[s] the entire context in which [a
defendant]’s plea of guilty occurred, as demonstrated by the record” to determine whether
sufficient reasons exist to support the motion. State v. Abdisalan, 661 N.W.2d 691, 695
(Minn. App. 2003), review denied (Minn. Aug. 19, 2003).

1 That ICE detained appellant is not dispositi ve. The motion hearing transcript indicates
that ICE released appellant pr ior to the plea hearing, but fu rther details on appellant’s
detention including when it t ook place and why he was releas ed are not contained in the
record.

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Appellant argues that the district court erred in denying his motion because he
received ineffective assistance of counsel rega rding the immigration consequences of his
plea. We agree as to appellant’s controlled-substance-crime plea.
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). A guilty plea “may be withdrawn only if one
of two standards is met. First a plea may be withdrawn if ‘withdrawal is necessary to
correct a manifest injustice.’” State v. Lopez , 794 N.W.2d 379, 382 (Minn. App. 2011)
(quoting Minn. R. Crim. P. 15.05, subd. 1). “S econd, before a defendant is sentenced, a
plea can be withdrawn ‘if it is fair and just to do so.’” Id. (quoting Minn. R. Crim. P. 15.05,
subd. 2). “The fair-and-just standard is less demanding than the manifest-injustice
standard.” Id.
“The ‘fair and just’ standard requires district courts to give ‘due consideration’ to
two factors: (1) the reasons a defendant advances to support withdrawal and (2) prejudice
granting the motion would cause the St ate given reliance on the plea.” Raleigh, 778
N.W.2d at 97 (quoting Minn. R. Crim. P. 15.05, subd. 2). “The defendant has the burden
to prove that a fair-and-just reason exists to withdraw his plea, and it is the state’s burden
to show any prejudice that allowing withdrawal would cause.” Lopez, 794 N.W.2d at 382.
The ineffective assistance of counsel can render a guilty plea constitutionally
invalid, resulting in a manifest injustice. Sames v. State, 805 N.W.2d 565, 567 (Minn. App.
2011). And because “the fair-and-just standard is less demanding than the manifest-
injustice standard,” a showing of ineffective assistance of counsel necessarily satisfies the

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fair-and-just standard for plea withdrawal. State v. Ellis-Strong , 899 N.W.2d 531, 541
(Minn. App. 2017).
The assistance of counsel was ineffective if 1) “counsel’s representation ‘fell below
an objective standard of reasona bleness,’” and 2) “‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the re sult 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)). In the context
of a guilty plea, a defendant must demonstrate that “but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Campos v. State , 816
N.W.2d 480, 486 (Minn. 2012) (quotation omitted).
“It is quintessentially the duty of counsel to provide her client with available advice
about an issue like deportation and the failure to do so clearly satisfies the first prong of
the Strickland analysis.” Padilla v. Kentucky, 559 U.S. 356, 371, 1 30 S. Ct. 1473, 1484
(2010) (quotation omitted). Under Padilla, “criminal-defense atto rneys must take some
affirmative steps before allowing a noncitizen c lient to accept a plea deal. . . . [A]t a
minimum, an attorney must review the relevant immigration statutes to determine whether
a conviction will subject the defendant to a ri sk of removal from the United States.”
Sanchez v. State, 890 N.W.2d 716, 721 (Minn. 2017).
“When the immigration consequences of a guilty plea are ‘truly clear,’ defense
counsel must affirmatively advise a defendant that the plea will ‘subject [the defendant] to
automatic deportation.’” Id. at 720 (quoting Padilla, 559 U.S. at 368-69 , 130 S. Ct. at
1483). But “[w]hen the law is not succinct and straightforwar d . . . , a criminal defense

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attorney need do no more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369, 130 S. Ct. at
1483.
The first prong of Strickland is satisfied as to appellant’s controlled-substance-crime
plea. Federal immigration law clearly provides that appellant’s conviction for possession
of methamphetamine rendered him deportable. See 8 U.S.C. § 1227(a)(2)(B)(i) (2012); 21
U.S.C. §§ 802(6), 812, schedule II(c) (2012). Because appellant was only advised that his
plea might result in immigration consequences, the assistance of his counsel was
ineffective.
The record here is insuffici ent as to appellant’s controlled-substance-crime plea to
satisfy the second Strickland prong. Appellant argues that the “nature of the
circumstances” shows that he would not have pleaded guilty. But appellant did not provide
an affidavit or testimony that he would have gone to tria l had he known of the clear
immigration consequences of his plea.
In Ellis-Strong, the court concluded that the reco rd was insufficient to determine
prejudice in the absence of an affidavit or testimony that the appellant would not have
pleaded guilty but for counsel’s ineffective assistance and wh ere the facts explaining the
reasons for appellant’s decision to plead gu ilty “were not fully developed.” 899 N.W.2d
at 540. The court remanded “for a postconviction evidentiary hearing so that the district
court [could] determine” whether the appellant could show a reasonable probability that he
would not have pleaded guilty but for counsel’s errors. Id. at 541. Other courts have taken
the same approach. See, e.g., Padilla, 559 U.S. at 374, 130 S. Ct. at 1487 (remanding to

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determine prejudice where appellant “sufficiently alleged that his counsel was
constitutionally deficient”); contra Campos , 816 N.W.2d at 506 (a ppellant established
prejudice with affidavit before district cour t). Remanding to determine prejudice under
Strickland is similarly appropriate here.
Neither prong of Strickland is satisfied as to appellant’s motor-vehicle-theft plea.
Federal law provides that admission into the United States will be denied to “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 co nspiracy to commit such a crime.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (2012).
“Congress has not defined the phrase cr ime involving moral turpitude, and the
meaning of that phrase was le ft to future administrative and judicial interpretation.”
Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004) (quotations omitted). “Without
question, the term is ambiguous.” Bobadilla v. Holder , 679 F.3d 1052, 1054 (8th Cir.
2012). Because the immigration consequenc es of appellant’s motor-vehicle-theft
conviction were not truly clear, the advisory he received was proper.
We affirm appellant’s motor-vehicle-the ft conviction because he did not receive
ineffective assistance of coun sel and the district court di d not abuse its discretion in
denying his motion to withdraw his guilty plea. But appellant has sufficiently alleged that
his counsel was constitutionally deficient as to his controlled-substance-crime plea. We
therefore reverse his conviction and remand for a determination of prejudice under the
second Strickland prong.

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Additionally, the parties did not brief what effect, if any, reversal of only one
conviction and withdrawal of th e plea would have on the plea agreement as a whole. If
appellant establishes prejudice to warrant w ithdrawal of his controlled-substance-crime
plea, the district court will need to address that issue. We remand to the district court for
further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.