Ernesto Reyes-Alcazar, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1080

Ernesto Reyes-Alcazar, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 3, 2021
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-11414

Charles F. Clippert, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Ernesto Reyes-Alcazar was convicted of first-degree arson following his
guilty plea. In this appeal, he challenges the district court’s summary denial of his second
petition for postconviction relief. He argues that the district court e rred by rejecting his

2
claim that he received ineffective assistance of appellate counsel in his first, unsuccessful
petition for postconviction relief. Reyes-Alcazar’s ineffective-assistance-of-counsel claim
ultimately turns on the accuracy of his guilty plea. He contends that his plea was inaccurate
because the record does not support two findings : (1) that he had the specific intent to
damage or destroy a building when he set fire to it and (2) that the building that he burned
was not a dwelling.
We conclude that Reyes-Alcazar’s guilty plea was accurate because the record
supports the fact that he had the requisite specific intent and because it is not an element of
the crime that the building burned was a non-dwelling. Because Reyes-Alcazar’s plea was
supported by a proper factual basis, his previous counsel did not unreasonably fail to raise
an accuracy challenge to his plea. The district court therefore did not abuse its discretion
by summarily denying Reyes-Alcazar’s seco nd petition for postconviction relief. We
affirm.
FACTS
The facts underlying this case are recited at length in our previous decision affirming
the denial of Reyes-Alcazar’s first petition for postconviction relief. See Reyes-Alcazar v.
State, No. A18-0531, 2019 WL 1510835 (Minn. App. Apr. 8, 2019), review denied (Minn.
June 18, 2019). We draw the following fact s from that opinion as well as from Reyes-
Alcazar’s plea hearing.
In 2015, respondent State of Minnesota charged Reyes-Alcazar with first-degree
arson in violation of Minn. Stat. § 609.561, subd. 2(b) (2014), for intentionally setting two
fires between the screen and storm doors at th e front and back of his ex-partner’s house.

3
Reyes-Alcazar, 2019 WL 1510835, at *1. Reyes-Alcazar, represented by counsel, entered
into a plea agreement. Id.
At the plea hearing, the state questioned Reyes-Alcazar to establish the factual basis
for his guilty plea. Responding “yes” to the prosecutor’s questions, Reyes-Alcazar admitted
the following. On November 10, 2014, he went to his ex-partner’s home. He had been in a
relationship with her and they were “having some relationship difficulties” at the time. He
“communicat[ed] into the house where she was,” “demanding to come in or threatening to
start a fire.” He “reasonably could anticipate that there would be people” inside the home.
He “start[ed] a fire in that dwelling by light ing materials by the door.” “And the result of
lighting those materials by the door is that the fire damaged a part of the dwelling, namely
the door jamb and the door.” The district co urt accepted Reyes-Alcazar’s guilty plea and
sentenced him in accordance with the plea agreement.
In 2017, through new counsel, Reyes-Al cazar petitioned for postconviction relief,
requesting that the court allow hi m to withdraw his guilty plea. Id. at *2. He argued that
his plea counsel was ineffective for failing to advise him of the immigration consequences
of his guilty plea and for failing to cha llenge the admissibility of his confession.1 Id. The
district court denied the petition, and Reyes-Alcazar appealed. He argued for the first time
on appeal that his guilty plea was inaccurate. Id. at *1. We affirmed the district court’s

1 While serving his sentence, Reyes-Alcazar learned that his Deferred Action for Childhood
Arrivals (DACA) status had been revoked. Reyes-Alcazar, 2019 WL 1510835, at *2.
Immigration and Customs Enforcement had previously started removal proceedings
against Reyes-Alcazar, but the proceedings we re administratively closed when Reyes-
Alcazar qualified for DACA. Id. After his felony-arson conv iction, Reyes-Alcazar no
longer qualified for DACA, and the removal proceedings against him were reopened. Id.

4
order denying postconviction relief, and we declined to consider the accuracy of his guilty
plea. Id. at *4-5. We noted, though, that Reyes-Alcazar was “not precluded from pursuing
a claim of ineffective assistance of appella te counsel for failing to raise a claim that
postconviction counsel was ineffective for failing to challenge the accuracy of [his] guilty
plea.” Id. at *5.
Reyes-Alcazar then filed a second petition for postconviction relief, asserting
ineffective assistance of appellate counsel. The district court summa rily denied relief,
ruling that Reyes-Alcazar’s guilty plea was accurate and that, therefore, his postconviction
counsel and appellate counsel in his first pet ition were not ineffective for failing to make
an accuracy challenge.
Reyes-Alcazar appeals.
DECISION
An appellate court reviews the summary denial of a petition for postconviction relief
for an abuse of discretion. Colbert v. State , 870 N.W.2d 616, 621 (Minn. 2015). Reyes-
Alcazar claims he is entitled to postconviction relief because his appellate counsel on his
first petition for postconvi ction relief was ineffective for fa iling to raise the issue of the
effectiveness of his first postconviction counse l. To establish ineffective assistance of
counsel, a petitioner must establish that (1 ) the petitioner’s 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.” Nissalke v. State , 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Reyes-

5
Alcazar asserts that his first postconvictio n counsel provided obj ectively unreasonable
representation by failing to challenge the accuracy of his guilty plea.
To be valid, a guilty plea must be accurate, voluntary, and intelligent. Nelson v.
State, 880 N.W.2d 852, 858 (Minn. 2016). To be accurate, a plea must be supported by a
proper factual basis. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012). A proper factual
basis exists “if the record contains a showing that there is credible evidence available which
would support a jury verdict that [a] defendant is guilty of at least as great a crime as that
to which he pled guilty.” Nelson, 880 N.W.2d at 859 (quotation omitted). The validity of a
plea is a question of law, which is reviewed de novo. State v. Raleigh, 778 N.W.2d 90, 94
(Minn. 2010).
Reyes-Alcazar contends that his plea was not supported by a pr oper factual basis
because his admissions at his plea hearing di d not establish what he asserts are two
elements of the first-degree-arson offense to which he pleaded gu ilty: (1) that he had
specific intent to cause damage to or destroy his ex-partner’s home and (2) that the building
that he burned was a not a dwelling.
As background, section 609. 561 of Minnesota Statutes identifies in several
subdivisions the ways in which a person commits first-degree arson. See Minn. Stat.
§ 609.561, subds. 1-3 (2014). Two subdivisions are relevant here. Subdivision 1 applies
when a person “unlawfully by means of fire or explosives, intentionally destroys or
damages any building that is used as a dwelling at the time the act is committed,” regardless
of “whether the inhabitant is present.” Id., subd. 1. Subdivision 2 applies when a person
“unlawfully by means of fire or explosives, intentionally destroys or damages any building

6
not included in subdivision 1” and the person knows that “another person who is not a
participant in the crime is pres ent in the building” or “the circumstances are such as to
render the presence of such a person therein a reasonable possibility.” Id., subd. 2(a), (b).
Reyes-Alcazar was convicted under subdivision 2.
With that background, we turn to Reyes-Alcazar’s first issue—intent.
A. The record supports a finding of the requisite intent.
First-degree arson is a specific-intent crime. State v. Battin, 474 N.W.2d 427, 431
(Minn. App. 1991), review denied (Minn. Oct. 23, 1991). The defendant must have
“intentionally destroy[ed] or damage[ed]” the building. Minn. Stat. § 609.561, subd. 2; see
also 10A Minnesota Practice, CRIMJIG 18.02 (2020) (describin g the requisite intent as
when “the defendant acted with the purpose of destroying or damaging the building, or
with the belief that the act w ould cause the building to be de stroyed or damaged”). Intent
may be proved by ci rcumstantial evidence. See State v. Jacobson , 326 N.W.2d 663, 665
(Minn. 1982); see also Nelson , 880 N.W.2d at 860 (“Intent is generally proved by
inferences drawn from a person’s words or actions in light of all the surrounding
circumstances.” (quotation omitted)).
Reyes-Alcazar argues that the record supp orts a finding only that he intended to
light a fire, not that he intended “to do anything in particular to the building.” He supports
his argument with our unpublished opinion in State v. Bellecourt, No. A17-0625, 2018 WL
700186 (Minn. App. Feb. 5, 2018). In Bellecourt, we reversed the defendant’s second-
degree-arson conviction because the factual ba sis provided for his guilty plea failed to
establish his specific intent. Id. at *2. We explained that, while Bellecourt admitted that he

7
entered a garage and started a fire with a lighter, he did not admit that he intended to destroy
or damage the building and “admitted to no fa cts that would directly or circumstantially
establish that he intended to damage or destroy the garage.” Id.
Bellecourt is not persuasive here. Cf. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796,
800 (Minn. App. 1993) (observing that unpublished decisions are not precedential but may
be persuasive). In contrast to Bellecourt, Re yes-Alcazar admitted at his plea hearing to
facts that circumstantially establish that he intended to damage or destroy his ex-partner’s
home. Reyes-Alcazar admitted that his ex-partner lived in the building and that they were
having relationship difficulties. He acknowledged threatening to start a fire if she did not
let him inside. He admitted that he started the fire by lighting materials by the door of the
home and that the fire damaged the door ja mb and the door. Reyes-Alcazar’s admitted
threat and actions provide strong circumstantial evidence that he star ted the fire with the
intent to damage or destroy the building. See Nelson, 880 N.W.2d at 860. Reyes-Alcazar’s
challenge to the factual basis for the intent element fails.
B. It is not an element of the offens e that the burned building was not a
dwelling.

Reyes-Alcazar also argues that his guilty plea is inaccurate because the record does
not establish that the building that he burned was not a dwelling; in fact, he observes, it
establishes that it was a dwelling. He argues that it is an element of the crime of which he
was convicted that the bui lding that he burned was not a dwelling. The district court
concluded that that is not an element of the offense, and we agree.

8
As explained above, under subdivision 1 of section 609.561, a person commits first-
degree arson when they intentionally burn a dw elling, whether or not the inhabitant of a
dwelling is present. Minn. St at. § 609.561, subd. 1. Unde r subdivision 2 of the statute—
the subdivision under which Reyes-Alcazar was convicted—a person commits first-degree
arson by intentionally burning “any building not included in subdivision 1” if the defendant
knows or has reason to believe that there is a person in the building. Id., subd. 2.
Reyes-Alcazar argues that, under the “plain language” of the two subdivisions, the
legislature intended to require the state to prove that a building was not a dwelling when a
person charged with setting fire to a buildin g that he knew or had reason to know was
occupied under subdivision 2. The argument is unconvincing.
“The purpose of statutory interpretation is to ascertain the intent of the Legislature.”
State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). “If a statute is unambiguous, then we
must apply the statute’s plain meaning.” Id. (quotation omitted). “A statute is ambiguous
only if it is subject to more than one reasonable interpretation.” State v. Thonesavanh, 904
N.W.2d 432, 435 (Minn. 2017) (quotation omitted).
Reyes-Alcazar’s interpretation is not re asonable. Subdivision 1 prohibits the
burning of a “building that is used as a dwelling at the time the act is committed,” whether
or not “the inhabitant is present.” Minn. Stat. § 609.561, subd. 1. Subdivision 2 applies to
setting fire to “any building not included in subdivision 1” when the defendant knows or
has reason to know that “a person” is present. Id., subd. 2. Thus, subdivision 2 punishes
persons who intentionally set fire to buildings that they know or have reason to believe are
occupied, whereas subdivision 1 punishes setting fire to even unoccupied buildings if the

9
buildings are dwellings. Reyes-Alcazar pres ents no explanation for why it would be a
reasonable interpretation of the statute to require that the state prove that a building is not
a “dwelling” when it has proved that the defendant set fire to a building that the defendant
knew or had reason to believe was occupied. The gravamen of the first-degree crime under
subdivision 2 is the presence of another person, not the nature of the building. The statute
cannot reasonably be read to defeat a finding of guilt under subdivision 2 for burning a
building known to be occupied because the evidence shows that, in addition to being
occupied at the time of the crime, the building was also a dwelling.
Reyes-Alcazar argues that his reading of the statute is supported by the fact that the
two subdivisions establish a different maximum fine. See Minn. Stat. § 609.561., subd. 1
(setting a maximum fi ne of $20,000); Id., subd. 2 (setting a maximum fine of $35,000).
We agree with the state that the statutory difference in maximum fines is not a persuasive
indicator that proof of a non-dwelling is required under subdivision 2. Offenses under
subdivision 1 and subdivision 2 are both first-degree crimes. Minn. Stat. § 609.561. They
carry the same maximum sentence. Id. They are both level 8 felony offenses and carry the
same presumptive prison sentence. See Minn. Sent. Guidelines 5.A (2014). It is true that
subdivision 2 of section 6 09.561 establishes a higher ma ximum fine. But subdivision 2
involves cases where the defenda nt knew or had reason to believe that he was putting a
person inside the building at risk. The differe nce in maximum fine does not persuade us
that an essential element of the crime under subdivision 2 is that the building was a non-
dwelling.

10
In sum, because it is not an element of the crime under subdivision 2 that the
building burned was not a dwelling, Reyes-Alcazar’s challenge to the factual basis for his
plea on that ground fails.
Because Reyes-Alcazar’s plea was support ed by a proper factual basis, Reyes-
Alcazar’s postconviction counsel and, by extension, his a ppellate counsel were not
ineffective for not challenging the accuracy of his plea. Because his counsel were not
ineffective, the district court did not abus e its discretion by de nying Reyes-Alcazar’s
petition for postconviction relief.
Affirmed.