Fortunato Alarcon Gatica, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1560

Fortunato Alarcon Gatica, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 19, 2019
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-17-4257

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, John Patrick Monnens, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Fortunato Gatica, who is not a United States citizen and who immigrated into the
country illegally, pleaded guilty to second-degree assault with a dangerous weapon after
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he pummeled a man with a thick broomstick. United States i mmigration officials placed
him in detention. Gatica moved to withdraw his guilty plea, arguing that he was denied
effective assistance of counsel because his attorney never told him he would be
automatically deported by pleading guilty. The district court denied the motion. Because
federal law did not clearly indicate that Gatica would be automatically deportable for
pleading guilty to second-degree assault, we hold that his attorney did not provide him
ineffective counsel, and we affirm.
FACTS
In February 2017, Fortunato Gatica attacked a man near his home because he
believed the man was in love with his wife. Gatica struck the man in the head, arm, and
body with a broomstick two inches thick before the man fled into a nearby house and called
police. The state charged Gatica with second-degree assault with a dangerous weapon. The
Hennepin County Department of Community Corrections and Rehabilitation reported that
Gatica was an illegal immigrant who might be deported if he pleaded guilty.
Gatica offered to plead guilty in July 2017, but after the district court expressed
concerns about whether he understood the immigration implications of his plea, the district
court ended the hearing to allow Gatica to consult with his immigration attorney . Gatica
withdrew his plea eight days later.
On the day his trial was set to begin, Gatica again offered to enter another plea
agreement. The agreement in part stated, “My attorney has told me and I understand that if
I am not a citizen of the United States my plea of guilty may result in deportation, exclusion
from admission to the United States, or denial of naturalization as a United States citizen.”
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At the plea hearing, the district court confirmed that Gatica had read and understood th e
statement before accepting his guilty plea. The district court sentenced Gatica to 364 days
in the workhouse, stayed, 120 days in custody, 90 days on electronic home monitoring, and
20 days of “sentence to service.”
United States Immigration and Customs Enforcement detained Gatica and began
deportation proceedings. Gatica then filed a postconviction petition seeking to withdraw
his guilty plea, arguing that he had not been properly advised of the immigration
consequences. The district court denied the motion. Gatica appeals.
D E C I S I O N
Gatica argues that the district court erred by not allowing him to withdraw his guilty
plea. A defendant has no absolute right to withdraw his guilty plea, but withdrawal is
mandated if it is necessary to avoid a manifest injustice, such as when a defendant does not
understand the charges against him or the consequences of his plea. State v. Raleigh,
778 N.W.2d 90, 93–94 (Minn. 2010). We review the validity of a plea de novo. Id.
Gatica argues that he should be permitted to withdraw his guilty plea because he
received ineffective assistance of counsel. To prove he received ineffective assistance of
counsel causing him to plead guilty , Gatica must show that his attorney’s representation
did not meet an objective standard of reasonableness and that there is a reasonable
probability that, had he been reasonably represented, he would not have pleaded guilty. See
Sanchez v. State, 890 N.W.2d 716, 720 (Minn. 2017). If a defendant is charged with a crime
and he is not a United States citizen, his attorney must accurately inform him of the
immigration consequences of pleading guilty. Id. (citing Padilla v. Kentucky, 559 U.S. 356,
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374, 130 S. Ct. 1473, 1486 (2010)). When the immigration consequences of pleading guilty
are “truly clear,” the attorney must tell the defendant that a guilty plea will subject him to
automatic deportation. Id. To determine whether a guilty plea will subject a defendant to
automatic deportation, the defendant’s attorney must discern from federal immigration
statutes whether the defendant’s crime falls into one of the categories calling for automatic
deportation. Id. at 721.
Gatica pleaded guilty to second-degree assault, which occurs when one person
assaults another w ith a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (2016).
Minnesota law defines “assault” as “the intentional infliction of . . . bodily harm upon
another.” Minn. Stat. § 609.02, subd. 10(1) (2016). Gatica argues that it was “truly clear”
he would be automatically deported for pleading guilty because second-degree assault
constitutes both a crime of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2012),
and an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The argument is not
convincing.
It is not clear that Gatica’s assault conviction constituted a crime of moral turpitude.
The federal statute does not define crime s of moral turpitude. 8 U.S.C.
§ 1227(a)(2)(A)(i)(I). Black’s Law Dictionary defines “moral turpitude” as “[c]onduct that
is contrary to justice, honesty, or morality; esp[ecially] an act that demonstrates depravity.”
1209 (11th ed. 2019). Federal appellate courts have variously defined the phrase. For
example, the Eighth Circuit has referred to moral turpitude as “conduct which is inherently
base, vile, or depraved, and contrary to the accepted rules of morality . . . . Among the tests
to determine if a crime involves moral turpitude is whether the act is accompanied by a
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vicious motive or corrupt mind.” Bobadilla v. Holder, 679 F.3d 1052, 1054 (8th Cir. 2012)
(quotation omitted); see also Rohit v. Holder, 670 F.3d 1085, 1089 (9th Cir. 2012) (defining
“moral turpitude” as “crimes that are base, vile, or depraved—if they offend society’s most
fundamental values, or shock society’s conscience” (quotation omitted)); Amouzadeh v.
Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (providing a similar definition of moral
turpitude). The moral-turpitude category is general and broad, and it could include a wide
variety of crimes. But neither the statute nor caselaw clearly indicates that second-degree
assault under Minnesota law is a crime of “moral turpitude.”
Gatica’s conviction is also not clearly an aggravated f elony under 8 U.S.C.
§ 1227(a)(2)(A)(iii). The federal definition of “aggravated felony” includes “ a crime of
violence (as defined in section 16 of title 18, . . .) for which the term of imprisonment [is]
at least one year.” 8 U.S.C. § 1101(a)(43)(F) (2012). A crime of violence is “an offense
that has as an element the use . . . of physical force against the person or property of
another.” 18 U.S.C. § 16 (a) (2012). Gatica’s crime certainly was one of violence, but it is
not clearly an aggravated felony unless it also requires a “term of imprisonment [sic] at
least one year.” 8 U.S.C. § 1101(a)(43)(F). Neither Gatica nor his attorney knew, at the
time he pleaded guilty, how long his sentence would be. Second-degree assault can be
punished by no more than seven years in prison. Minn. Stat. § 609.222, subd. 1. Gatica’s
presumptive sentence was 21- months, but a pre-plea investigation supported a
dispositional departure staying his sentence, and his attorney indicated his intent to request
both a dispositional and durational sentencing departure. The variables at the time of
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Gatica’s plea made it unclear whether he would be automatically deportable under federal
law.
Because the immigration consequences of Gatica’s guilty plea were not “truly
clear,” Gatica’s attorney was required to warn him only that he could face deportation.
Gatica’s plea agreement confirms that he was sufficiently warned and defeats his
contention that his attorney represented him ineffectually.
Affirmed.