A24-1062

This opinion is nonprecedential except as provided by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
A24-0397
A24-1062

State of Minnesota,
Respondent,

vs.

Semir Durgutovic,
Appellant (A24-0397),

Semir Durgutovic, petitioner,
Appellant (A24-1062),

vs.

State of Minnesota,
Respondent.

Filed March 31, 2025
Affirmed in part, reversed in part and remanded; motion granted in part
Jesson, Judge*

Dakota County District Court
File Nos. 19HA-CR-21-2190, 19HA-CR-22-2742, 19HA-CR-23-682

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

Kathryn M. Keena, Dakota County Attorney, Todd Zettler, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, Minnesota (for
appellant)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
Considered and decided by Bjorkman, Presiding Judge; Harris, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Semir Durgutovic pleaded guilty to interference with an emergency call,
felony violation of a domestic abuse no contact order (DANCO), and first-degree
burglary.1 The district court convicted and sentenced him for these violations. In his
petitions for postconviction relief, Durgutovic argued that he was entitled to withdraw these
guilty pleas because he received ineffective assistance of counsel about the immigration
consequences of his pleas. The postconviction court denied the petition without a hearing.
Because Durgutovic received adequate warning of the immigration consequences of
pleading guilty to interference with an emergency call and felony violation of a domestic
abuse no contact order, but did not receive an adequate warning of the immigration
consequence of pleading guilty to first- degree burglary, we affirm in part, reverse in part,
and remand.
FACTS
Durgutovic is a permanent legal resident but not a citizen of the United States. In
October 2021, respondent State of Minnesota charged Durgutovic with three offenses

1 These charges each arose in separate court files. We note that Durgutovic appealed the
burglary and DANCO convictions, and we granted his motion to stay the appeal pending
postconviction proceedings. Durgutovic also challenged his interference with an
emergency call conviction in postconviction proceedings. This court then consolidated
these appeals which we now address.
3
including interference with an emergency call pursuant to Minnesota Statutes section
609.78, subdivision 2(1) (2020). A year later, Durgutovic petitioned the district court to
enter a guilty plea for the interference charge. In his written petition, Durgutovic attested
that “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.” The district court convicted and sentenced
Durgutovic on the interference charge and dismissed the other charges.
In November 2022, the state charged Durgutovic with felony violation of a DANCO
pursuant to Minnesota Statutes section 629.75, subdivision 2(d)(1) (2020). And in March
2023, the state charged Durgutovic with three additional offenses, including first-degree
burglary pursuant to Minnesota Statutes section 609.582, subdivision 1(c) (2022).
Durgutovic petitioned to enter guilty pleas for felony violation of a DANCO and
first-degree burglary. As part of his plea, Durgutovic signed petitions for both offenses
that denote: “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.”
The district court held a hearing on Durgutovic’s plea petitions for the DANCO
violation and burglary offenses. During Durgutovic’s plea colloquy, the district court, trial
counsel, and Durgutovic had the following exchange about immigration consequences:

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DISTRICT COURT: Did you cover enhance[ment] and
immigration consequences?
. . . .
TRIAL COUNSEL: Well, Judge—I’ll let the Court give the
immigration [waiver], because I ’m not exactly sure of the
wording anyway. I don’t usually do it.
DISTRICT COURT: Do you understand that if you’re not a
United States citizen, that pleading guilty or being convicted
of an offense could result in deportation or inability to be
reinstated— readmitted to the United States or naturalization as
a citizen? Do you understand that?
DURGUTOVIC: I do understand that Your Honor.
The district court then accepted Durgutovic’s pleas and convicted him for felony
DANCO violation and first-degree burglary.
In April 2024, Durgutovic petitioned for postconviction relief seeking to withdraw
his pleas for these three convictions. To support his petition, Durgutovic included an
affidavit from an immigration attorney reflecting her conclusions that Durgutovic was not
adequately informed of the immigration consequences of his guilty pleas. In this affidavit,
the immigration attorney attested that the immigration consequences for pleading guilty to
first-degree burglary were “clear and certain” and that the immigration consequence for
pleading guilty to a DANCO violation “may have been ambiguous.”
The postconviction court denied this petition without a hearing determining that
Durgutovic was not entitled to relief. In reaching this determination, the court concluded
that the immigration consequences of a burglary conviction were clear and that the
immigration consequence of DANCO and interference convictions were “less than clear
and definite.” The court then concluded that the plea petitions and on-the-record notice
5
were sufficient to notify Durgutovic of the immigration consequences of his plea for each
of the three convictions.
Durgutovic appeals.
DECISION
Durgutovic asserts that he received ineffective assistance of counsel because his
trial attorney did not properly advise him of the immigration consequences of his pleas and
that in light of this ineffective assistance, he has a right to withdraw his guilty pleas as
unintelligently entered. See Sames v. State, 805 N.W.2d 565, 567 (Minn. App. 2011) (“A
defendant’s guilty plea may be constitutionally invalid if the defendant received ineffective
assistance of counsel.” (citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)).
We review the postconviction court’s denial of Durgutovic’s petition without an
evidentiary hearing—a “summary denial”—for an abuse of discretion. Andersen v. State,
913 N.W.2d 417, 422 (Minn. 2018). “A postconviction court abuses its discretion when
its decision is based on an erroneous view of the law or is against logic and the facts in the
record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).
Minnesota law required the postconviction court to conduct an evidentiary hearing
concerning Durgutovic’s petition unless it and the record “conclusively show[ed]” he was
“entitled to no relief.” Andersen, 913 N.W.2d at 422; see also Minn. Stat § 590.04, subd.
1 (2020) (“Unless the petition and the files and records of the proceeding conclusively
show that the petitioner is entitled to no relief, the court shall promptly set an early hearing
on the [postconviction] petition.”). And in making this determination, the postconviction
6
court was to “consider[] the facts alleged in [Durgutovic’s] petition as true and construe[]
them in the light most favorable to [Durgutovic].” Anderson, 913 N.W.2d at 422-23.
To be entitled to postconviction relief for his ineffective-assistance-of-counsel
claim, Durgutovic needed to show that (1) his trial counsel’s performance fell below an
objective standard of reasonableness and (2) absent his trial counsel’s unreasonable
performance, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 -88, 694 (1984). Here, the postconviction
court concluded that Durgutovic failed to meet the first Strickland prong and denied his
requested relief. We “review a district court’s application of the Strickland test de novo
because it involves a mixed question of law and fact.” State v. Mosley, 895 N.W.2d 585,
591 (Minn. 2017).
Our review centers on the constitutional obligation of defense counsel, set out in
Padilla v. Kentucky, to advise a noncitizen defendant of the immigration consequences of
a guilty plea—particularly where a risk of removal from the United States is involved.
559 U.S. 356, 366- 69 (2010). If defense counsel fails to meet this obligation, their
performance falls below an objective standard of reasonableness and a defendant may be
entitled to withdraw their plea on these grounds. Id.
But, as both the United States Supreme Court and the Minnesota Supreme Court
have observed, “[i]mmigration law can be complex.” Id. at 369; Sanchez v. State, 890
N.W.2d 716, 720 (applying and explaining Padilla). However, where the immigration
consequence of a particular plea is “succinct and straightforward” or—put another way —
“truly clear,” defense counsel must directly advise a defendant that the plea will “subject
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[the defendant] to automatic deportation.” Padilla, 559 U.S. at 360, 369. Conversely,
where the law is unclear, the advice may be more general—that a plea “may carry a risk of
adverse immigration consequences.” Id. at 369. To determine whether a specific and
strongly worded advisory is required, an attorney reviews “the relevant immigration
statutes.” Sanchez, 890 N.W.2d at 721. If the charged offense is a crime for which
deportation is certain, then a general advisory is not sufficient. Id.
Below, we consider the clarity—or lack thereof—of the immigration consequences
for each of Durgutovic’s convictions. We then turn to the plea advisories provided to assess
whether the postconviction court abused its discretion by summarily determining that
Durgutovic received advisories that met the standards established in Padilla.
The postconviction court abused its discretion by summarily concluding that
Durgutovic was not entitled to relief for his burglary plea.
Durgutovic argues that the postconviction court abused its discretion by concluding
that he was adequately advised of the immigration consequences of his burglary conviction
before he pleaded guilty to that offense. Below, the postconviction court concluded that
the immigration consequences of a burglary conviction were “succinct, clear and explicit”
but that Durgutovic received a sufficiently clear notice of these immigration consequences.
We agree that the immigration consequences of a burglary conviction are “succinct,
clear, and explicit. ” A conviction for burglary clearly subjected Durgutovic to removal
from the United States and required a specific advisory to that effect. In its brief to this
court, the state conceded this conclusion. But in its oral argument, the state changed its
8
position— arguing that a conviction for burglary did not carry clear immigration
consequences and therefore did not require more than a general advisory. 2
The state’s original position is correct. The Immigration and Nationality Act
establishes that if an alien is convicted of a crime within certain enumerated categories of
criminal offenses, that alien is considered “deportable.” 8 U.S.C. § 1227(a)(2) (2018).
One such enumerated category of criminal offenses are aggravated felonies which include
“burglary offense[s] for which the term of imprisonment [is] at least one year.” Id.
§§ 1227(a)(2)(iii); 1101(43)(G) (2018) (defining “aggravated felony” under the
Immigration and Nationality Act ). Here, Durgutovic pleaded guilty to first-degree
burglary-assault which carries a presumptive sentence of 48 months’ commitment for an
offender with no criminal history score. Minn. Stat. § 609.582, subd. 1(c); Minn. Sent’g
Guidelines 4.A (2022). Based on the plain language of the Immigration and Nationality
Act and Minnesota statutes, pleading guilty to first-degree burglary clearly subjects
Durgutovic to removal from the United States.
With these immigration consequences in mind, we next consider if Durgutovic was
advised of this fact before he pleaded guilty to burglary. The postconviction court
concluded its notice to Durgutovic that his “guilty pleas ‘could’ result in immigration
consequences” was sufficient to meet Padilla’s clarity requirement for the burglary

2 We note that the state failed to notify this court of its changed position. See Puce v. City
of Burnsville, 997 N.W.2d 49, 52 n.1 (Minn. 2023) (“ We take this opportunity to remind
parties to promptly notify the court and opposing counsel if their arguments have changed
prior to oral argument to allow adequate time to prepare for, or respond to, a changed
position.”).
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offense. We disagree. The postconviction court’s on-the- record notice during
Durgutovic’s plea colloquy advised him “that pleading guilty or being convicted of an
offense could result in [Durgutovic’s] deportation or inability to be . . . readmitted to the
United States or naturalization as a citizen .” (Emphasis added.) This advisory lacks
specificity and falls short of the requirement that a criminal defendant receive “specific,
definitive advice about the immigration consequences of pleading guilty.” Sanchez, 890
N.W.2d at 720.3
Accordingly, the postconviction court erred in concluding that Durgutovic received
an adequate warning about the immigration consequences of his plea, and in summarily
denying him relief on those grounds. Andersen, 913 N.W.2d at 422-23 (noting that a
postconviction court “must” hold an evidentiary hearing “unless the [postconviction]
petition and the files and records of the proceeding conclusively show that the petitioner is

3 The postconviction court and the state in its oral argument cite
United States v. Ramirez-Jimenez, to support a conclusion that the district court’s notice
was sufficient under Padilla, but this case is inapposite. 907 F.3d 1091, 1094 (8th Cir.
2018). In Ramirez-Jimenez the defendant’s counsel and the magistrate judge advised the
defendant “not only that his guilty plea ‘carries a risk of deportation,’” but “also that
deportation was likely.” Id. (emphasis in original). And the Eighth Circuit court also
credited the defendant’s knowledge of the immigration system in concluding that he could
not prove that his guilty plea was caused by ineffective assistance of trial counsel. Id. But,
considering the facts alleged in Durgutovic’s petition as true and construing them in the
light most favorable to him, Durgutovic was not warned that deportation was likely, only
that his pleas “could” result in immigration consequences and received that warning only
from the court and not his attorney. See Anderson, 913 N.W.2d at 422-23. And the
postconviction court made no findings regarding Durgutovic’s knowledge or experience
with the immigration system. With these distinctions in mind, we cannot conclude that
Ramirez-Jimenez supports the district court’s reasoning or the state’s position.
10
entitled to no relief”). We therefore reverse and remand for the postconviction court to
conduct an evidentiary hearing on this claim.4
The postconviction court did not abuse its discretion by concluding that
Durgutovic was adequately warned about the immigration consequences of his
other pleas.
Durgutovic argues that the postconviction court abused its discretion by concluding
that he was adequately advised of the immigration consequences of pleading guilty to
interference with an emergency call and violation of a DANCO. He contends that his
counsel should have provided specific advic e that the plea would lead to deportation
because the offenses were both “punishable by a year in custody” and “involved the use
(or threatened use) of force and/or involved substantial risk that physical force could be
used in the course of commission.”
The postconviction court concluded that, because neither violation of a DANCO nor
interference with an emergency call are enumerated deportable crimes in the Immigration
Nationality Act, the immigration consequences of those convictions were “less than clear
and definite” and only required a general immigration warning. We agree.

4 Because we conclude that the postconviction court abused its discretion in concluding
that Durgutovic did not make the threshold showing required to receive an evidentiary
hearing on the first Strickland prong, we remand for the court to consider evidence that
may include evidence of trial counsel’s performance and Durgutovic’s understanding of
the immigration consequences at the time of his pleas. And we note that our opinion in
this matter does not reach the second Strickland prong which was not considered by the
postconviction court and may be contested at the evidentiary hearing. Strickland, 466 U.S.
at 694 (requiring a postconviction petitioner demonstrate that absent their trial counsel’s
unreasonable performance, the result of the proceeding would have been different).
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We turn first to Durgutovic’s interference conviction. In contrast to the immigration
expert’s opinion that the consequences of Durgutovic’s first-degree burglary plea were
clear, her affidavit did not reflect the same assertion regarding his interference plea.
Rather, the expert concluded only that he was not adequately informed of any
consequences. This distinction between the burglary and interference convictions is
reflected in immigration law. Interference with an emergency call is not a “deportable”
criminal offense enumerated in 8 U.S.C. § 1227(a)(2) or an “aggravated felony” as defined
in 8 U.S.C. § 1101(43). And we are not persuaded by Durgutovic’s argument that the facts
included in the document charging him with this offense are clearly sufficient to meet the
definition of “aggravated felony” because the offense is a crime of violence. As the state
points out, the United States Supreme Court has held that the definition of “crime of
violence,” as incorporated into the definition of “aggravated felony” for purposes of
determining whether a crime is a deportable offense is unconstitutionally vague.
Sessions v. Dimaya, 584 U.S. 148, 159-62 (2018). With this in mind, we cannot conclude
that under the Immigration Nationality Act a conviction for interference with an emergency
call clearly subjected Durgutovic to removal from the United States. See Sanchez, 890
N.W.2d at 721 (noting that to determine whether a specific and strongly worded advisory
is required we review “the relevant immigration statutes”).
Similarly, Durgutovic’s postconviction petition did not establish that a conviction
for violating a DANCO clearly subjected him to removal from the United States.
Durgutovic’s own immigration expert asserted that the immigration consequences for
pleading guilty to this crime “may have been ambiguous.” (Emphasis added.) And his
12
petition for postconviction relief states that the crime “would likely” be a deportable
offense. Likeliness and ambiguity do not meet the test for “truly clear” immigration
consequences as established by Padilla and Sanchez.5 559 U.S. at 369; 890 N.W.2d at
720. On this record, we cannot conclude that the postconviction court abused its discretion
by determining that Durgutovic’s postconviction petition did not establish that he was
entitled to a specific immigration warning before pleading guilty to violation of a DANCO.
Because Durgutovic’s petition does not establish that he was entitled to a specific
warning about possible immigration consequences of his guilty pleas for interference with
an emergency call and for violation of a DANCO, “a general advisory warning about the
possible immigration consequences of [his] guilty plea[s] [was] sufficient.” See Sanchez,
890 N.W.2d at 721. The record reflects that Durgutovic was sufficiently warned in both
his plea petition, where he attested that he understood that his plea could have immigration
consequences, and during his plea colloquy, where he testified to that effect. See id at 718,
726 (concluding that a defendant received a sufficient general immigration advisory where
the signed plea petition acknowledged that the plea “may result in deportation,” defense
counsel confirmed that the defendant had reviewed the petition, and the defendant agreed
under oath that their plea “could result” in deportation) (emphasis omitted)).
In sum, because we conclude that Durgutovic was entitled to a clear and specific
warning regarding the immigration consequences of pleading guilty to first- degree

5 Durgutovic’s argument that violating a DANCO is an “aggravated felony” because it is a
crime of violence is unpersuasive for the same reasons as discussed in our analysis of the
interference conviction.
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burglary, and his postconviction petition sufficiently demonstrated that he did not receive
such a warning before entering his plea, we reverse and remand for an evidentiary hearing
regarding this offense . But because we determine that Durgutovic was entitled to, and
received, a sufficient general advisory regarding the immigration consequences of pleading
guilty to interfering with an emergency call and violating a DANCO, we affirm the
postconviction court’s summary denial of .Durgutovic’s petition regarding these offenses.
6
Affirmed in part, reversed in part, and remanded; motion granted in part.

6 We grant the state’s motion to strike portions of Durgutovic’s addendum in part. The
state’s assertion that Durgutovic’s addendum contained a transcript outside the record on
appeal is moot. See Minn. R. Civ. App. P. 110.01 (limiting the record on appeal to “[t]he
documents filed in the trial court, the exhibits, and the transcript of the proceedings”).
Durgutovic’s addendum contains no transcript pages. We agree with the state that page
two of Durgutovic’s addendum contains a document that was not considered by the
postconviction court and does not appear in the record on appeal and therefore grant the
state’s motion to strike that document.