Felix Kasper Piah, 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This opinion will be unpublished and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
A19-0835

Felix Kasper Piah, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Hennepin County District Court
File No. 27-CR-16-2187

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

Keith Ellison, 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 Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Bryan, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from the denial of a petition for postconviction relief, appellant argues
that he is entitled to withdraw his guilty plea for ineffective assistance of counsel because

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his attorney: (1) failed to inform him of the immigration consequen ces of his guilty plea,
and (2) argued against his request to withdraw his plea. Additionally, appellant claims that
the postconviction court erred when it determined that the district court applied the correct
standard when assessing his pre -sentencing plea withdrawal request. We affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.
FACTS
In December 2014, appellant Felix Kasper Piah entered the United States from his
home country of the Republic of Liberia on a temporary visa. Although his temporary visa
expired in June 2015, Piah remained in the United States and moved to Minnesota to live
with his father. Piah is not a legal resident of the United States.
On the night of January 21, 2016, police officers were dispatched to Northeast
Minneapolis following a report of a domestic assault with a weapon. Upon reaching the
scene, officers were flagged down by Piah’s father, who was standing barefoot outside,
and who informed the police that after he chastised Piah, Piah charged at him with a 16-
inch kitchen knife held above his head. The father successfully wrested the knife away
from Piah, but obtained a deep laceration on his left palm and a cut on his right finger from
the struggle.
Later that same evening, police made contact with Piah, who acknowledged the
struggle and claimed that his father had possibly cut himself when he tried to grab the knife.
Piah was arrested and the state charged him with second -degree assault with a dangerous
weapon under Minn. Stat. § 609.222, subd. 1 (2014).

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On November 9, 2016, Piah pleaded guilty to one count of misdemeanor domestic
assault with intent to cause fear under Minn. Stat. § 609.2242, subd. 1(1) (2014). The plea
petition signed by Piah included the provision, “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 deportatio n,
exclusion from admission to the United States of America or denial of citizenship.”
At his plea hearing, the district court and Piah’s counsel confirmed with Piah that
he was making a voluntary and intelligent plea , but the district court did not address any
possibility of immigration consequences based on his plea . Piah’s attorney informed him
that “the negotiation was the best we could do to protect him in immigration proceedings
. . . but that he could still be deported because he had no legal sta tus,” and that the plea
“would make [applying for asylum] at least possible.” Piah later reported that his attorney
advised him that he would be ineligible for asylum if he went to trial and was convicted of
second-degree assault.
At his sentencing hearing, without first consulting with his attorney, Piah requested
to withdraw his guilty plea, claiming that he was unsatisfied with the process, was confused
when he agreed to the plea, and was not a criminal. Piah did not ask the district court to
withdraw his plea because of any immigration consequences he faced.
The district court explained to Piah that the reasons he asserted were not legally
valid reasons to withdraw a plea . The district court informed Piah that valid reasons to
withdraw a plea include not being properly represented and not making a “knowing and
intelligent plea.” The district court asked Piah several times if he had any reasons to
withdraw his plea. When Piah did not present any reasons in response to the district court’s

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questioning, the district court concluded that Piah had not “told [the district court] anything
that leaves [it] to conclude that [Piah] did not make a knowing and intelligent plea in this
case.” When the district court asked Piah’s attorn ey if she had anyt hing to add, she
responded that she did not have anything to add but went on to say:
Mr. Piah has always been concerned with the consequences,
but I think they’re really minimal compared to the 21 -month
prison sentence that he’s facing. And his father was very
willing to come forward, and had some very compelling
testimony. This is an excellent deal for Mr. Piah.

The district court denied Piah’s request to withdraw his plea for failure to provide
the district court with “any leg al basis” to grant his request and proceeded to sentencing.
In June 2017, Piah was arrested for allegedly violating his probation and was transferred
from state custody to federal immigration custody.
On January 3, 2019, Piah filed a petition for postconviction relief claiming that he
was entitled to withdraw his guilty plea because his attorney failed to inform him of the
immigration co nsequences of his plea and argued against his plea withdrawal reque st.
Additionally, Piah claimed that the district court erred by applying the incorrect standard
when it denied his motion to withdraw his guilty plea. The postconviction court denied
Piah’s petition. This appeal follows.
D E C I S I O N
Piah argues tha t the postconviction court abused its discretion when it denied his
postconviction petition for relief because he received ineffective assistance of counsel.
Additionally, Piah contends that the postconviction court erred when it determined that the
district court analyzed his motion to withdraw his guilty plea under the correct standard

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because the district court allegedly applied the stricter manifest -injustice standard rather
than the more lenient fair-and-just standard.
In reviewing a postconviction court’s denial of a claim of ineffective assistance of
counsel, this court applies a clear -error standard of review to the postconviction court’s
factual findings, a de novo standard of review to the postconviction court’s legal
conclusions, and an a buse-of-discretion standard of review to the postconviction court’s
ultimate decision whether to grant relief. Sanchez v. State , 890 N.W.2d 716, 719 –20
(Minn. 2017).
I. The postconviction court abuse d its discretion when it denied Piah’s
petition for postconviction relief based on ineffective assistance of counsel.

Piah argues that his guilty plea is presumptively invalid as a matter of law because
he received ineffective assistance of counsel. As the plea is invalid, Piah argues , he is
entitled to withdraw it.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const. amend. VI; see also Minn. Const. art.
I, § 6. This right is the “right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To prevail on an ineffective
assistance of counsel claim, Strickland dictates that a defendant must demonstrate two
elements: (1) “counsel’s representation fell below an objective standard of
reasonableness,” and (2) “there is a reasonable probability that, but for counsel ’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068. “The objective standard of reasonableness

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is defined as representation by an attorney exercising the customary skills and diligence
that a reasonably competent attorney would perf orm under similar circumstances.” State
v. Vang, 847 N.W.2d 248, 266–67 (Minn. 2014) (quotations omitted).
The two-part Strickland test applies to a claim that a defendant received ineffective
assistance of counsel in connection with a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58,
106 S. Ct. 366, 370 (1985). A plea based on ineffective assistance of counsel is invalid as
a matter of law. State v. Ellis-Strong, 899 N.W.2d 531, 541 (Minn. App. 2017).
A. Piah’s attorney’s failure to inform Piah of the immigration consequences of his
plea fell below an objective standard of reasonableness.

The first prong of Strickland requires a defendant to demonstrate to a reviewing
court that “counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. There is a strong presumption that counsel’s
performance was reasonable. Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
In Padilla v. Kentucky , the United States Supreme Court held that the Sixth
Amendment’s right to counsel requires a criminal defense attorney to advise a noncitizen
client of the immigration consequences of pleading guilty —including the risk of
deportation. 559 U.S. 356, 367 –68, 130 S. Ct. 1473, 1482 –83 (2010). If the applicable
immigration statute “is not succinct and straightforward,” rendering the deportation
consequences of a plea to be unclear, an attorney need only advise a client that “pending
criminal charges may carry a risk of adverse immigration conseque nces.” Id. at 369, 130
S. Ct. at 1483. However, if the deportation consequences of a guilty plea are “truly clear,”
an attorney has a duty to accurately advise a client of those consequences. Id.

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The Minnesota Supreme Court has summarized an attorney’ s obligations to advise
his or her client under Padilla:
Padilla establishes that 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 defendant to a risk of removal
from the United States. Second, if conviction of the charged
offense clearly subjects the defendant to removal from the
United States, the attorney has a constitutional obligation to
advise the defendant of this fact before he or she enters a guilty
plea. If it does not, then a general advisory warning about the
possible immigration consequences of a guilty plea is
sufficient.

Sanchez, 890 N.W.2d at 721 (emphasis added).
A showing that an attorney failed to advise a non citizen client of “truly clear”
deportation consequences is sufficient to satisfy the first prong of Strickland. Padilla, 559
U.S. at 369, 130 S. Ct. at 1483.
Under 8 U.S.C. § 1227 (a)(2)(E)(i) (2012), “[a]ny alien who at any time after
admission is convicted of a crime of domestic violence . . . is deportable.” The statute goes
on to define crimes of domestic violence as “any crime of violence (as defined in section
16 of title 18) . . . committed . . . by any other individual against a person who is protected
from that individual’s acts under the domestic or family violence laws of the United States
or any State .” 8 U.S.C. § 1227(a)(2)(E)(i) . Minnesota’s misdemeanor domestic assa ult
with intent to cause fear is a crime of violence under 18 U.S.C. § 16(a). Ramirez-Barajas
v. Sessions , 87 7 F.3d 808, 810 (8th Cir. 2017) (applying Schaffer to 8 U.S.C.

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§ 1227(2)(E)(i)); United States v. Schaffer, 818 F.3d 796, 798–99 (8th Cir. 2016) (holding
that a conviction under Minn. Stat. § 609.2242, subd. 1(1), qualifies as a crime of violence).
Because 8 U.S.C. § 1227 (a)(2)(E)(i) explicitly defines domestic assault as a deportable
offense, and the Eighth Circuit has confirmed that Minn. Stat. § 609.2242, subd. 1(1), fits
squarely within the category of deportable crimes of violence, the immigration
consequences of Piah’s plea were truly clear and his attorney had a constitutional obligation
to advise Piah of this fact before he entered his ple a. See, e.g., Sanchez, 890 N.W.2d at
725 (holding that the sexual abuse of a minor, though a presumptively deportable offense
under federal immigration law, was not truly clear as it had not been defined in statute and
has not been interpreted by the Eighth Circuit). Therefore, under the first prong of
Strickland, t he objective reasonableness of Piah’s attorney’s representation turns on
whether or not she adequately communicated to Piah the specific risk of presumptive
deportation associated with his plea.
It is clear that Piah received a general warning about the possibility of his plea
leading to immigration consequences. The plea petition he signed included a statement
noting “[m]y 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, exclusion from admission to the United
States of America or denial of citizenship.” (Emphasis added.) Although this general
warning suffices when the immigration consequences of a plea are unclear, this warning is
insufficient when the immigration consequences are truly clear. Padilla, 559 U.S. at 369,
130 S. Ct. at 1483

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Instead, Padilla and Sanchez instruct that Piah was entitled to receive a specific
warning that his plea will result i n presumptive deportation. Piah argues that his attorney
did not inform him that his plea would automatically render him subject to presumptive
deportation or that the subsequent conviction would make him a higher priority for
deportation. Indeed, Piah’s attorney merely informed Piah that “the negotiation was the
best we could do to protect him in immigration proceedings . . . but that he could still be
deported because he had no legal status.” (Emphasis added.)
Although the postconvictio n court determined that this warning was sufficient
because it informed Piah that the United States government had the legal authority to deport
him, we hold that the attorney’s language was insufficient to communicate to Piah that his
plea, and not his underlying legal status, subjected him to a higher risk of deportation than
he otherwise face d. As the plea clearly subjected Piah to presumptive deportation, his
attorney was required to warn him of this fact before he entered his plea. A general warning
that he was still subject to deportation due to this immigration status, and not because of
the plea itself, was insufficient when the deportation consequences of his plea were truly
clear.
In light of Padilla and Sanchez, we hold that his attorney’s general warning was
insufficient to warn Piah of the truly clear immigration consequences of his plea and
therefore was objectively unreasonable under the first prong of Strickland. The
postconviction court erred when it determined otherwise.

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B. An evidentiary hearing on the second prong of Strickland is required to
determine if Piah’s plea was presumptively invalid due to ineffective assistance
of counsel.

To satisfy the second prong of Strickland in the context of a guilty plea, a defendant
must prove “that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59,
106 S. Ct. at 370. A defendant is entitled to an evidentiary hearing on an ineffect ive-
assistance-of-counsel claim if the defendant alleges facts that, if proven by a fair
preponderance of the evidence, would satisfy both prongs of Strickland. Bobo v. State, 820
N.W.2d 511, 516 (Minn. 2012).
Piah has the burden of proving that, but for his attorney’s unreasonable conduct, he
would have pleaded differently. In his affidavit, Piah stated that he “would not have
pleaded guilty if [he] had known that [the plea] would subject [him] to presump tive
deportation.” However, we cannot simply rely on Piah’s post hoc proclamations. See Lee
v. United States, 137 S. Ct. 1958, 1967 (2017) (noting that a reviewing court “ should not
upset a plea solely because of post hoc assertions from a defendant abou t how he would
have pleaded but for his attorney’s deficiencies”). Instead, we must examine the
circumstances of the plea “to substantiate a defendant’s expressed preferences.” Id.
Piah was informed that he was at risk of deportation regardless of his plea. And yet,
Piah argues that the opportunities available to him in the United States, and specifically,
the immediate threat of violence he reportedly faces should he immediately return to
Liberia, would have persuaded him not to make a plea that subjected him to a presumption

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of imminent deportation. These facts, if proven by a preponderance of the evidence, may
support a finding that Piah would not have pleaded guilty but for his counsel’s errors.
Because the postconviction court determined that P iah’s attorney’s immigration
warning did not fall below an objective standard of reasonableness, it did not address the
second prong of Strickland. See Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (noting
that a reviewing court “may dispose of a clai m on one prong without considering the
other”). Yet, as we hold that the postconviction court erred when it determined that the
warning provided by Piah’s attorney was sufficient, and Piah has alleged facts that, if
proven by a preponderance of the evidence, may support a finding that he would not have
pleaded guilty but for his attorney’s insufficient warning, w e remand this issue with
instructions for the district court to vacate Piah’s sentence and hold an evidentiary hearing
on the second prong of Strickland. Should the postconviction court determine that the
second prong of Strickland is met, Piah’s plea is presumptively invalid as a matter of law
and he must be permitted to withdraw it. See Ellis-Strong, 899 N.W.2d at 541 (providing
that a plea based on ineffective assistance of counsel is invalid as a matter of law).
C. The statements of Piah’s attorney at the sentencing hearing did not fall below
an objective standard of reasonableness.

Although we have concluded that the ineffective assistance of counsel claim should
be remanded for an evidentiary hearing on the second prong of Strickland, in the interest
of judicial economy and in order to narrow the issues on remand , we also hold that the
statements of Piah’s attorney at the sentencing hearing did not fall below an objective
standard of reasonableness.

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A defendant has a right to decide whether or not to plead guilty. McCoy v.
Louisiana, 138 S. Ct. 1500, 1508 (2018). An attorney’s role is limited to informing a
defendant’s decision to plead guilty. Anderson v. State, 746 N.W.2d 901, 909 (Minn. App.
2008), overruled on other grounds by Wheeler v. State , 909 N.W.2d 558 (Minn. 2018).
For an attorney’s actions to be objectively reasonable under the first prong of Strickland,
the actions must be commensurate with those of a reasonably competent attorney under
similar circumstances. Vang, 847 N.W.2d at 267; State v. Jorgensen, 660 N.W.2d 127,
132 (Minn. 2003) (noting that when a defendant’s attorney admits guilt without a
defendant’s consent, the attorney’s “performance is deficient and prejudice is presumed”
when applying Strickland).
The postconviction court determined that the statements of Piah’s attorney at the
sentencing hearing did not breach the attorney’s duty of loyalty to her client by arguing
against his motion to withdraw. We agree that her statements did not fall below an
objective standard of reasonableness. Despite not receiving any notice from Piah of his
intent to reques t to withdraw his plea, Piah’s attorney allowed her client to make his
request, did not attempt to prevent Piah from making his request, and did not argue that
Piah was not entitled to withdraw his plea or that he was guilty. See, e.g., McCoy, 138 S.
Ct. at 1505 (holding that counsel’s performance violates the Sixth Amendment when he or
she concedes a party’s guilt despite the defendant insisting on innocence); Jorgensen, 660
N.W.2d at 132. Instead, her role was to inform her client about the considerations and
consequences of his decision to bring a motion to withdraw his guilty plea. See Anderson,
746 N.W.2d at 908 (providing that defendant’s counsel must inform defendant of

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consequences of entering a guilty plea) . Acting in conformity with this role, Piah’s
attorney informed her client and the court about the potential prison sentence he faced and
the strength of the state’s evidence against him.
Because the statements of Piah’s attorney did not fall below an objective standard
of reasonableness, the postconviction court did not err. Accordingly, we need not consider
the impact of the statements under the second prong of Strickland. Nissalke, 861 N.W.2d
at 94.
II. The postconviction court did not err when it determined that the district
court applied the correct standard in assessing Piah’s motion to withdraw
his guilty plea.

Piah argues that the postconviction court erred when it determined that the district
court applied the correct standard when it assessed Piah’s motion to withdraw his guilty
plea. Although we have concluded that the ineffective assistance o f counsel claim should
be remanded for an evidentiary hearing on the second prong of Strickland, in the interest
of judicial economy and in order to narrow the issues on remand, we will address Piah’s
argument.
A defendant does not have an absolute right t o withdraw a guilty plea. State v.
Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). Guilty pleas may be withdrawn only if one of
two standards are met: (1) at any time, including after sentencing, a plea must be withdrawn
when there is a manifest injustice; or (2) before sentencing, a plea may be withdrawn when
it is fair and just to do so . See Minn. R. Crim. P. 15.05, subds. 1, 2 (2018) (establishing
the manifest-injustice and fair-and-just standards).

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To meet the manifest-injustice standard, the defendant must show that the plea was
“not accurate, voluntary, and intelligent.” Perkins v. State, 559 N.W.2d 678, 688 (Minn.
1997). To meet the fair -and-just standard , a district court must duly consider: “(1) the
reasons a defendant advances to support withdrawal and (2) prejudice granting the motion
would cause the State given reliance on the plea.” Raleigh, 778 N.W.2d at 97. A district
court should also consider, “the entire context in which [the d efendant’s] plea of guilty
occurred, as demonstrated by the record.” State v. Abdisalan, 661 N.W.2d 691, 695 (Minn.
App. 2003), review denied (Minn. Aug. 19, 2003).
Although the fair -and-just standard “is less demanding than the manifest injustice
standard, it does not allow a defendant to withdraw a guilty plea for simply any reason.”
State v. Theis , 742 N.W.2d 643, 646 (Minn. 2007) (quotation omitted). The decision to
allow a defendant to withdraw a guilty plea “is left to the sound discretion of the trial court,
and it will be reversed only in the rare case in which the appellate court can fairly conclude
that the trial court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).
However, a district court’s apparent evaluation of a pre-sentencing motion to withdraw a
plea under the manifest-injustice standard, rather than the fair-and-just standard, may
warrant a new hearing when the record is insufficient for this court to determine if relief is
warranted on appeal. State v. Lopez, 794 N.W.2d 379, 385 (Minn. App. 2011) (noting that
no hearing is necessary when the record supports that a defendant is entitled to relief under
the fair-and-just standard).
At the sentencing hearing, th e district court told Piah, “Y ou pled guilty. You
admitted to the facts in this case during the plea, and I accepted that plea. Is there

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something I should know where I shouldn’t have done that? . . . [w]hat about the plea[]
was wrong?” To this prompting, Piah responded that he was not a criminal. The district
court replied:
[T]hat’s not a reason. So, a reason to withdraw a plea is that
you weren’t properly represented, and it appeared that you
were very well represented; that you didn’t understand what
was going on at the time . . . You seem like a very intelligent
person to me. You’re talking about going to college and
biology, so I’m having a hard time believing that you have the
inability to understand what’s happening here.

The district court once again asked if there were a ny other reasons to withdraw the
plea. The defendant explained to the court that he was very confused at the time he entered
his plea and that he wanted to go to trial to explain his side of the events. In response, the
district court stated:
[T]here’s only certain things that I can do. . . . And when I take
a plea, I have to see [] is the person understanding what’s
happening? Are they making a knowing and intelligent plea?
And you haven’t told me anything that leaves me to conclude
that you did not m ake a knowing and intelligent plea in this
case. Actually, I find otherwise.

The district court denied Piah’s request to withdraw his plea —noting that Piah had not
“given [the district court] any legal basis to [withdraw the plea] at this time.”
Even though Piah requested to withdraw his plea before he was sentenced, allowing
the district court to apply the less-restrictive fair-and-just standard, the district court did
not explicitly state which standard it applied when it denied his request. In its questioning
of Piah, the district court used some language associated with the manifest -injustice
standard by commenting on Piah’s intelligence and affirming that Piah made a knowing

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and voluntary plea. And yet, the district court did not indicate that i t made its decision
based on those categories alone. Although Piah was given the opportunity to explain to
the district court any additional reasons as to why he believed he should be allowed to
withdraw his plea, he failed to do so . The district court l istened to all of Piah’s reasons,
considered them, and simply determined that they were insufficient to warrant granting his
request. See, e.g., Theis, 742 N.W.2d at 646 (noting that the fair-and-just standard, while
a relaxed standard compared to the manifest-injustice standard, “does not allow a defendant
to withdraw a guilty plea for simply any reason”). Because the district court considered all
of the reasons submitted by Piah and found that those reasons were insufficient, we are not
persuaded that the district court erred by applying an incorrect standard when it assessed
Piah’s plea withdrawal request.
Based upon this record, we hold that the postconviction court did not err when it
determined that the district court evaluated Piah’s plea withdrawal request under the correct
fair-and-just standard. Accordingly, upon remand, the district court is only required to
consider whether Piah satisfies the prejudice prong of Strickland.
Affirmed in part, reversed in part, and remanded.