Bolus Andre Dimbiti, 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This opinion will be unpublished and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
A19-0736

Bolus Andre Dimbiti, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 3, 2020
Reversed and remanded
Florey, Judge

Olmsted County District Court
File No. 55-CR-16-8626

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Johnson, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant seeks review of a postconviction co urt’s summary denial of his petition
to withdraw his guilty plea. Appellant argued in his petition that he received ineffective

2
assistance of counsel because his counsel failed to advise him of the clear immigration
consequences of his guilty plea. We reverse and remand for an evidentiary hearing.
FACTS
Bolus Dimbiti was admitted to the United States as a refugee in 2012 and has not
since gained citizenship. For the purposes of immigration law, Dimbiti is considered to be
from South Sudan, though he has never been to that country.
In 2016, Dimbiti was charged in Olmsted County with aggravated robbery, second-
degree assault, and gross misdemeanor felon -in-possession of a firearm. Dimbiti applied
for a public defender, and J.K. was assigned to the case. The parties eventually reached a
plea agreement, whereby Dimbiti was to plead guilty to second -degree assault with a
dangerous weapon; specifically, the butt of a handgun. A hearing for the plea agreement
was held. The following portions of the transcript of that hearing are relevant to this case:
J.K.: Mr. Dimbiti, I did indicate to you that I make no
representations to you as to what effect this
would have on any immigration proceeding. Is
that correct?
DIMBITI: Correct.
J.K.: We did talk about that. Is that correct?
DIMBITI: Right.
J.K.: That’s for another time. Clearly, it doesn’t help,
but we don’t know what the effect of it is.
Correct?
DIMBITI: Correct.
. . .

3
COURT: . . . Have you had opportunity to speak with an
attorney regarding the immigration
consequences if you wished?
DIMBITI: No.
COURT: Do you want an opportunity to speak with
someone? Have you thought about that?
J.K.: And, Your Honor, as I understand it, my client
will be meeting with someone in a couple of
months for purposes of getting some papers or
anything. We’ve talked about that.
COURT: Well, what is going to happen? Is it going to
result in his deportation?
PROSECUTOR: I don’t know, Your Honor.
J.K.: I don’t know, Your Honor.
COURT: And the law is—
J.K.: I’m going to—
COURT: —not so helpful for us right now as to what we
have to address and what we can address when
someone’s potential criminal histor y will —or
may or may not affect their legal status. So is
this one of those types of cases that will result in
deportation proceedings being initiated or is it
one of the gray areas where it’s unknown?
J.K.: I think it’s a gray area, Your Honor.
COURT: Okay.
J.K.: It’s a gray area.
PROSECUTOR: I would agree with that, Your Honor. But
just to be safe, if I could ask just one
additional question.
COURT: Go ahead.

4
PROSECUTOR: Mr. Dimbiti, you’ve addressed the Court
that you’re not a permanent citizen of the
United States. Is that correct?
DIMBITI: What’s that?
PROSECUTOR: You’ve expressed to the Court that you’re
not a permanent citizen of the United
States. Is that correct?
DIMBITI: Yes, sir.
PROSECUTOR: And you understand that a guilty plea or a
conviction to the second -degree assault
could result in your deportation. Correct?
DIMBITI: Yes.
PROSECUTOR: No additional questions, Your Honor.
COURT: And knowing this, you still want to move
forward with your plea.
DIMBITI: Yes.
COURT: I’m not questioning you. I’m just wanting to
make sure that you understand that there may be
some immigration consequences. I’m not sure
what those are. The attorneys are telling me that
this falls within a gray area where we can’t say
you will be deported because of your conviction,
but even if you are deported, that’s something
that you’re going to accept because you want to
move forward with the plea.
DIMBITI: Yes.
COURT: Am I putting words in your mouth or is that how
you feel?
DIMBITI: That’s how I feel.
COURT: Okay. I’ll accept your plea, voluntary, accurate,
and intelligent.

5
At sentencing, the parties informed the court that they agreed to an alternative
factual basis for the underlying crime and wished to change the plea agreement. The parties
agreed to change the assault to having been committed with a belt buckle, rather than a
handgun as originally alleged. 1 This was to have the effect of changing the applicable
statutory enhancement from “firearm” in subdivision 5 of section 609.11 to “dangerous
weapon” in subdivision 4. The new agreement did not change the severity level or the
maximum sentence, but it did change the mandatory minimum to twelve months and one
day. The court agreed to accept the adjusted plea deal. Prior to Dimbiti pleading guilty to
the charge with the new factual basis, the court and the prosecutor again addressed the topic
of immigration consequences:
PROSECUTOR: Mr. Dimbiti, you understand that this may
have immigration consequences? I’m
asking you th e same question that was
asked before. You understand that?

DIMBITI: I understand.

PROSECUTOR: With the knowledge of all of your rights,
you still want to go ahead with this; is that
correct?

DIMBITI: Yes.

. . .
COURT: Do I understand that you are a citizen of the
United States or you’re not a citizen of the
United States?

DIMBITI: I’m not a citizen.

1 The state agreed because, while a witness reported seeing a handgun during the assault,
none was recovered at the scene, and it occurred outside at night.

6

COURT: Alright. So you have discussed with your
attorney the ramifications of entering a plea to
this charge on your immigration status; is that
correct?

DIMBITI: Yes.

COURT: And knowing that and understanding your rights,
you still desire to enter this plea of guilty; is that
correct?

DIMBITI: That’s correct.

COURT: Okay. The Court will accept the defendant’s
plea of guilty to the amended Count 2.

The district court sentenced Dimbiti to the mandatory minimum of one year and one day
and awarded him credit for 382 days already served. This was in December 2017.
In June 2018, an immigration judge ordered Dimbiti’s deportation. This came after
the Department of Homeland Security (DHS) amended existing allegations 2 against
Dimbiti to include the Olmsted County assault . The immigration court denied the
possibility of asylum and withholding because it determined that the assault constituted a
“particularly serious crime.”
Dimbiti filed a postconviction petition that alleged, inter alia, ineffective assistance
of counsel. He argued that the deportation consequence of his plea was clear, so J.K. should
have advised him that pleading guilty will entail his deportation. But for J.K.’s deficient
advice, Dimbiti argues, he would not have pleaded guilty.

2 DHS had allegations pending against Dimbiti since 2014 for a prior theft conviction, but
this is not relevant to the issue before us.

7
The postconviction court summarily denied Dimbiti’s petition, concluding that it
did not allege facts that would support a reasonable probabili ty that he would not have
pleaded guilty had he been advised differently. Dimbiti appealed.
D E C I S I O N
We review the denial of a postconviction petition for an abuse of discretion, but
legal issues are reviewed de novo. Matakis v. State , 862 N.W.2d 33, 36 (Minn. 2015).
This court will not reverse an order unless the postconviction court acted in an arbitrary or
capricious manner, based its decision on an erroneous interpretation of the law , or made
factual findings that were clearly erroneous. Id. A postconviction court need not grant a
hearing on a claim if the files and records of the proceeding conclusively establish that the
petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2018).
Minnesota courts apply the two -part test ann ounced in Strickland to claims of
ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
State v. Eling, 355 N.W.2d 286, 293 (Minn. 1984) (applying Strickland). To succeed on
his ineffective -assistance-of-counsel claim, Dimbiti must show (1) that his coun sel’s
performance was deficient and (2) that such deficient performance prejudiced his defense.
Strickland, 466 U.S. at 687. We analyze the first part of the test —whether counsel’s
performance was deficient —under an objective standard of reasonableness; and the
second—whether the defense was thereby prejudiced—to determine whether the defendant
has shown that “ there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the procee ding would have been different .” Id.; State v. Ecker , 524
N.W.2d 712, 718 (Minn. 1994).

8
Dimbiti correctly points out that the applicable law for t he substance of his
ineffective-assistance claim is the United States Supreme Court’s holding in Padilla v.
Kentucky, 559 U.S. 356 (2010). Padilla held that “counsel must inform her client whether
his plea carries a risk of deportation,” and that failing to do so constitutes “deficient
performance” for ineffective -assistance purposes. Id. at 374. Therefore, of the two-part
Strickland test, Padilla sets a standard for the first—the question of whether his counsel’s
performance was deficient. Here, the postconviction court did not address the first part
and summarily denied Dimbiti’s petition on the second prong alone, reasoning that Dimbiti
did not show that there was a reasonable probability that he would not have pleaded guilty
even if had he been correctly advised. Padilla, however, still applies to this case.
It is true that a postconviction court may summ arily deny a petition without an
evidentiary hearing, but only where “the petition and the files and records of the proceeding
conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1.
While Dimbiti bears the burden o f proving both prongs of the Strickland test and could
therefore, hypothetically, be denied an evidentiary hearing if he is conclusively shown to
be unable to meet just one of them, we do not believe that the facts of this case can support
an adequate analysis of the second Strickland prong without consideration of the first. The
unique factual situation here requires a synchronous analysis of both Strickland factors.
The problem with considering the prejudice prong alone is revealed by the cursory
nature of the postconviction court’s analysis of that prong. The postconviction court found
that Dimbiti’s defense was not prejudiced because he “understood that a guilty plea could
result in deportation,” and the fact that he so pleaded anyway obviates any “reasonable

9
probability that . . . the result of the proceeding would have been different” had he been
told it will result in his deportation. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). To analyze
only the second prong, the postconviction court had to assume, arguendo, that Dimbiti’s
attorney was deficient. Because the “result” in this case is Dimbiti’s decision to plead
guilty, the question before the postconviction court was whethe r Dimbiti would have
pleaded guilty if his attorney was not deficient —a materially different scenario about
which we know nothing because it was not addressed by the post conviction court below.
There is nothing in the record or history of this case that casts light on what Dimbiti would
have chosen to do had he been informed that his guilty plea guaranteed his deportation, so
hazarding an answer to that question amounts to speculation. See Lee v. United States, 137
S. Ct. 1958, 1967 (2017) (observing that “where we are instead asking what an individual
defendant would have done, the possibility of even a highly improbable result may be
pertinent to the extent it would have affected his decision making”)
Reiterating and elaborating on the postconviction cou rt’s analysis, the state argues
that there is in fact an aspect of this case from which the postconviction court could glean
Dimbiti’s decision had he been correctly advised —namely, that Dimbiti seemingly had
little trouble deciding to plead guilty when he knew deportation was possible.3 Therefore,
the state’s argument goes, it is not reasonably probable that Dimbiti would have done
anything differently had the word “will” replaced “may.” Not only does this argument

3 The state points to several other aspects of this case and Dimbiti’s background that
supposedly suggest that he would h ave pleaded guilty regardless. However, Dimbiti
correctly retorts that these arguments were not raised below and as such are waived. Roby
v. State, 547 N.W.2d 354, 357 (Minn. 1996).

10
require substantial guesswork as to the intricacies of one’s unique background, values, and
self-determination—which would fall far short of a “conclusive showing” —but to affirm
on this basis would be to eviscerate United States Supreme Court constitutional precedent.
See Lee, 137 S. Ct. at 1968-69 (stating that even where going to trial would almost certainly
lead to deportation, “that ‘almost’ could make all the difference” with respect to a
defendant’s decision -making if he knows that the alternative would certainly lead to
deportation).
The Padilla Court delineated attorneys’ duties with respect to advising their clients
on a decision’s potential immigration consequences:
There will, therefore, undoubtedly be numerous situations in
which the deportation consequences of a particular plea are
unclear or uncertain . The duty of the private practitioner in
such cases is more limited. When 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.
But when the deportation consequence is truly clear, as it was
in this case, the duty to give correct advice is equally clear.

Padilla, 559 U.S. at 369. The postconviction court’s analysis and conclusion in this case,
if affirmed, would render Padilla’s primary holding impotent. Were it permissible to deny
a postconviction petition because the petitioner was aware that deportation was possible,
attorneys representing non -citizen defendants need only say, in any instance, that
deportation is a possibility. That is, if a court must only determine whether the petitioner
knew that deportation was possible, as was done here, an attorney’s ambiguous “m aybe”
would always preclude an ineffective assistance claim —even when the deportation
consequence was blindingly clear—in clear contravention of Padilla. In such a case, when

11
the impending deportee seeks postconviction relief based on ineffective assistan ce of
counsel, the court could summarily deny it because the defendant was aware that
deportation was a possibility and therefore could not satisfy the second Strickland prong.
The defendant could not obtain relief for ineffective assistance of counsel precisely because
the defense attorney’s conduct was constitutionally deficient under Padilla.
It is undisputed that J.K. did not advise Dimbiti that his guilty plea would result in
deportation. T herefore, Dimbiti’s ineffective -assistance-of-counsel clai m turns on
(1) whether he can demonstrate that J.K.’s performance was deficient under Padilla, which
turns on whether the deportation consequence was clear and (2) whether he was prejudiced
thereby under Strickland. Dimbiti makes sound arguments on both of these fronts, none
of which can be adequately addressed without an evidentiary hearing. For the foregoing
reasons, we reverse and remand this case for an evidentiary hearing consistent with this
opinion.
Reversed and remanded.