State of Minnesota, 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This opinion will be unpublished and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
A19-0689

State of Minnesota, petitioner,
Appellant,

vs.

Junting He,
Respondent.

Filed May 4, 2020
Reversed
Kalitowski, Judge *

Anoka County District Court
File No. 02-CR-17-988

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount , Assistant County
Attorney, Anoka, Minnesota (for appellant)

Ryan L. Kaess, Kaess Law, LLC, St. Paul, Minnesota; and

Dongfa Zhou, Hongfa Law Office, Eagan, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Slieter, Judge; and
Kalitowski, Judge .

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
KALITOWSKI, Judge
Appellant State of Minnesota challenges the district court’s order allowing
respondent Junting He to withdraw his guilty plea. Because respondent received effective
assistance of counsel and entered a valid guilty plea, we reverse.
FACTS
In February 2017, the state charged respondent with one count of third -degree
criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(o) (2016). His case
proceeded to a jury trial, which ended in a mistrial when the jury deadlocked. After the
mistrial, respondent retained a new lawyer (plea counsel), who negotiated a plea agreement
with the state. Based on the agreement , respondent would enter an Alford1 plea to an
amended charge of fifth -degree criminal sexual conduct under Minn. Stat. § 609.3451,
subd. 1(1) (2016). In exchange for respondent’s plea to this gross -misdemeanor offense,
the state agreed to a 179-day jail cap.
At the plea hearing, plea counsel noted that the agreement had specific terms due to
constant communication with resp ondent’s immigration lawyer because respondent is not
a United States citizen. Respondent signed a plea petition that included this language: “I
understand that if I am not a citizen of the United States, my plea of guilty to this crime
may result in deportation . . . I have discussed the ramifications of this plea of guilty with

1 When a defendant enters an Alford plea, he maintains his innocence but admits that the
state possesses sufficient evidence for a jury to find him guilty at trial. State v. Theis, 742
N.W.2d 643, 647 (Minn. 2007) (citing North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct.
160, 168 (1970)).

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my immigration attorney.” Respondent is originally from China. An interpreter certified
in Mandarin Chinese appeared at the plea hearing. The district court questioned respondent
about the plea petition:
Q: And it looks like you[r] lawyer, I believe, went through a
rights petition with you?
A: Yes.
A: Do you see that piece of paper in front of you?
A: Yes.
Q: That piece of paper outlines your rights.
A: Yes.
Q: Did you go through those rights with your lawyer with the
assistance of an interpreter?
A: Yes.
Q: Do you feel like you understand those rights?
A: Yes.

Upon questioning from plea counsel, respondent affirmed that he had reviewed each
line of the plea petition and that he was satisfied with the plea agreement. Respondent and
plea counsel then had this colloquy:
Q: Have you had enough time to talk with your immigratio n
attorney?
A: Yes.
Q: Your immigration attorney is [M.B.]?
A: Yes.
Q: And you and I and [M.B.] have had a phone conference on
several occasions?
A: Correct.
Q: And you’re not a United States citizen?
A: No, I’m not.
Q: And that’s why we need to talk to [an] immigratio n
attorney?
A: Yes.
Q: And he has advised you fully on the cons equences of the
plea agreement?
A: Yes.

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After respondent waived his rights and a sufficient factual basis was offered, the district
court accepted respondent’s guilty plea and followed the plea agreement in imposing
sentence.
About one month after resp ondent pleaded guilty, Immigration and Customs
Enforcement agents arrested him at his residence. Respondent then moved to withdraw his
plea, arguing that it lacked voluntari ness and intelligence. In an affidavit supporting his
motion, respondent stated that his conviction led to adv erse immigration consequences.
After the parties appeared for a hearing on respondent’s motion, the district court
issued an order granting the motion. The state filed a notice of appeal to this court, but
then moved to stay the appeal after moving the district court to reconsider its decision. We
granted the stay pending the district court’s decision on the reconsideration motion.
At the hearing on the reconsideration motion, the state called plea counsel to testify.
He confirmed that he went through the plea petition with respondent line -by-line, but
otherwise declined to answer questions based on attorney-client privilege. Plea counsel
did acknowledge that an immigration attorney was involved in respondent’s case.
Following this hearing, the district court issued another order reaffirming its earlier
decision to grant respondent’s plea withdrawal. We then granted the state’s mo tion to
reinstate the appeal.
D E C I S I O N
A district court’s decision to allow plea withdrawal is reviewed for an abuse of
discretion. Kim v. State , 434 N.W.2d 263, 266 ( Minn. 1989). But the validity of a guilty
plea presents a legal question subject to de novo review. Nelson v. State, 880 N.W.2d 852,

5
858 (Minn. 2016). And a claim for ineffective assistance of counsel presents a mixed
question of law and fact that we review de novo. State v. Mosley, 895 N.W.2d 585, 591
(Minn. 2017).
Criminal defendants do not have an absolute right to withdraw a guilty plea. State
v. Raleigh , 778 N.W.2d 90, 93 ( Minn. 2010). But a district court must allow plea
withdrawal at any time upon a timely motion to correct a manifest injustice. Minn. R.
Crim. P. 15.05, subd. 1. A manifest injustice exists when a guilty plea is invalid. Raleigh,
778 N.W.2d at 94. A valid guilty plea must be accurate, voluntary, and intelligent. Nelson,
880 N.W.2d at 858.
The district court held that respondent did not en ter an intelligent plea, requiring
plea withdrawal. “The intelligence requirement ensures that a defendant understands the
charges against him, the rights he is waiving, and the consequences of his plea.” Raleigh,
778 N.W.2d at 96. Here, b ecause the intelligence of respondent’s plea relates to plea
counsel’s performance, we must determine whether plea counsel provided effective
representation.
Criminal defendants have a constitutional right to the effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To
succeed on an ineffective -assistance-of-counsel claim, a defendant must show that his
attorney performed deficiently and that this deficient performance caused prejudice. Id. at
687, 104 S. Ct. at 2 064. The two -prong Strickland test applies to ineffective-assistance
claims involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371 (1985).

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The first Strickland prong requires a defendant to show that his attorney’s
performance f ell below an objective standard of reasonableness. State v. Ecker , 524
N.W.2d 712, 718 (Minn. 1994). In Padilla v. Kentucky , the United States Supreme Court
established baseline standards for criminal defense attorneys when advising clients of
immigration consequences. 559 U.S. 356, 130 S. Ct. 1473 (2010). First, criminal defense
attorneys must advise their clients of immigration consequences when those consequences
are “truly clear.” Id. at 369, 130 S. Ct. at 1483. Second, when a plea does not carry clear
or certain immigration consequences, an attorney need only advise a client that adverse
consequences may exist. Id. In establishing these standards, Padilla recognized that
“[i]mmigration law can be complex, and it is a legal specialty of its own.” Id.
The Minnesota Supreme Court interpreted Padilla in Sanchez v. State and further
explained the scope of a criminal -defense attorney’s duties to provide effective
representation. 890 N.W.2d 716 (Minn. 2017). Sanchez pleaded guilty to one count of
third-degree criminal sexual conduct. Id. at 718. Sanchez signed a plea petitio n
acknowledging potential deportation consequences and affirmed at the plea hearing that
potential immigration consequences existed. Id. After immigration officials took him into
custody and issued a final removal order, Sanchez moved to withdraw his plea. Id. at 718-
19.
On appeal, the supreme court considered whether Sanchez’s case fell into Padilla’s
“truly clear” or “unclear” category. Id. at 721 -22. After analyzing federal statutes and
caselaw, the supreme court held that the immigration consequences of Sanchez’s plea were

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not “truly clear.” Id. at 723. Thus, the supreme court concluded that Sanchez’s counsel
satisfied his obligation. Id.
Here, like Sanchez, the immigration consequences of respondent’s plea to fifth-
degree criminal sexual conduct were not “truly clear.” The parties do not dispute this point.
And b ecause respondent’s guilty plea did not car ry “truly clear” immigratio n
consequences, plea counsel needed only to warn him of adverse immigratio n
consequences. See Padilla, 559 U.S. at 369, 130 S. Ct. at 1483.
The record reflects that respondent was advised regarding immigratio n
consequences. First, respondent signed a plea petition acknowledging that his plea could
lead to deportation and affirming that he had discussed potential consequences with his
immigration attorney. Second, respondent affirmed at the plea hearing that he had gone
through the plea petition line -by-line with plea counsel. Third, respondent affirmed that
he had spoken with an immigration attorney who had explained the consequences of his
guilty plea. These facts show that plea counsel complied with Padilla’s lower requirement
to provide a general immigration warning. And this compliance with Padilla indicates that
plea counsel performed reasonably under Strickland’s first prong. T hus, respondent
received effective assistance of counsel.2
We recognize, as did the district court, that respondent pleaded guilty to avoid
deportation. But the state did not breach the plea agreement. Rather, Immigration and
Customs Enforcement officials, who were not a party to the agreement, chose to apprehend

2 We need not address the second prong under Strickland if the first is determinative. State
v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

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respondent. Notwithstanding respondent’s expectations, we are compelled to conclude that
this subsequent event does not undermine the validity of respondent’s guilty plea , given
the record facts showing that plea counsel provided reasonable representation under
Padilla and Sanchez.
Reversed.