Fidele Ndaruhutse v. State of Minnesota

This opinion is nonprecedential except as provided by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
A23-1642

Fidele Ndaruhutse, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 13, 2024
Affirmed
Frisch, Judge

Clay County District Court
File No. 14-CR-21-2212

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Brian J. Melton, Clay County Attorney, Charles J. Drapeaux, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Segal, Chief Judge; and Frisch,

Judge.

NONPRECEDENTIAL OPINION

FRISCH, Judge

Appellant asserts that the postconviction court abused its discretion in denying his

petition for relief because he received ineffective assistance of counsel when he was
misadvised about the immigration consequences of his plea and his plea was otherwise

unintelligent. Because the postconviction court did not abuse its discretion in determining

that appellant did not meet his burden to establish that he received ineffective assistance of

counsel or otherwise abuse its discretion, we affirm.

FACTS

On October 25, 2019, respondent State of Minnesota charged appellant Fidele

Ndaruhutse with first-degree aggravated robbery pursuant to Minn. Stat. § 609.245,

subd. 1 (2018). The statement of probable cause reflects that Ndaruhutse robbed a woman

entering her apartment building after putting a knife to her throat. Ndaruhutse was a

juvenile at the time of the offense, and the matter was designated as an extended jurisdiction

juvenile (EJJ) proceeding.

Upon learning that Ndaruhutse was not a United States citizen, trial counsel

contacted immigration counsel to discuss the immigration consequences associated with a

guilty plea to Ndaruhutse’s assault charges in a separate file. Immigration counsel advised

trial counsel that “[j]uvenile adjudications are not deportable crimes unless the non-citizen

is prosecuted as an adult or is put on EJJ and violates after turning 18.” Immigration

counsel also noted the immigration consequences associated with a conviction for an

aggravated felony include presumptive mandatory deportation and a permanent bar from

returning to the United States. Immigration counsel also repeated that “deportability only

applies if [Ndaruhutse] is prosecuted as an adult [or] violates EJJ after turning 18.” Trial

counsel thereafter advised Ndaruhutse of the opinions of immigration counsel and provided

a copy of the email from immigration counsel to Ndaruhutse.

2
 On December 9, 2019, Ndaruhutse pleaded guilty to first-degree aggravated

robbery. During the colloquy, the state asked about Ndaruhutse’s understanding of the

immigration consequences of his plea:

Q: Have you discussed with your attorney consequences of
entering this plea when you’re not a citizen of the United
States?
A: Yes.

Q: And has he discussed with you or provided you with
information so you’re able to make an informed decision on
this regarding immigration consequences?
A: Yes.

Q: And you still wish to go forward although this is an offense
that you very likely could be deported on?
A: Yes.

The district court then received testimony on the factual basis for the plea, found that

Ndaruhutse entered his plea freely, knowingly, and intelligently, and ordered a

predisposition investigation report (PDI).

On January 16, 2020, the district court held a disposition hearing. At the hearing,

the state noted that the victim requested restitution and asked the district court to include

restitution in the disposition. The state and trial counsel agreed that the restitution had not

been discussed as part of the plea, and the state noted Ndaruhutse could withdraw his plea.

Ndaruhutse did not move to withdraw his plea.

The district court imposed a stayed 48-month adult sentence, ordered Ndaruhutse to

complete a juvenile program, and placed Ndaruhutse on supervised probation until he

turned 21. The district court also acknowledged restitution was “not contemplated in the

plea agreement” but ordered Ndaruhutse to pay restitution.

3
 On March 28, 2021, the district court received a probation-violation report. At a

revocation hearing, Ndaruhutse admitted to the probation violation. The district court

revoked Ndaruhutse’s EJJ status and executed the adult sentence.

On January 19, 2023, Ndaruhutse petitioned for postconviction relief seeking to

vacate his conviction and withdraw his guilty plea. On June 20, the postconviction court

held an evidentiary hearing and received testimony from trial counsel, an expert in

immigration consequences of criminal charges, Ndaruhutse, and Ndaruhutse’s father. On

October 23, the postconviction court denied Ndaruhutse’s petition for relief.

Ndaruhutse appeals.

DECISION

Ndaruhutse argues that the postconviction court abused its discretion by denying his

petition because (1) he received ineffective assistance of counsel when his trial counsel

affirmatively misadvised him of the immigration consequences of his plea and (2) his plea

was otherwise unintelligent as he was not advised of the restitution consequences of his

plea. We address each argument in turn.

We review the denial of a postconviction petition for an abuse of discretion. Brown

v. State, 895 N.W.2d 612, 617 (Minn. 2017). “A [postconviction] court abuses its

discretion when it has exercised its discretion in an arbitrary or capricious manner, based

its ruling on an erroneous view of the law, or made clearly erroneous factual findings.”

Martin v. State, 969 N.W.2d 361, 363 (Minn. 2022) (quotation omitted). “We review legal

issues de novo.” Id.

4
I. The postconviction court did not abuse its discretion by denying Ndaruhutse’s
petition because he did not meet his burden to show that he received ineffective
assistance of counsel.

Ndaruhutse argues that the postconviction court abused its discretion in denying his

petition because he established that his trial counsel was ineffective by misadvising him of

the immigration consequences of the guilty plea.

The Sixth Amendment right to effective assistance of counsel extends to a

defendant’s decision to plead guilty. Strickland v. Washington, 466 U.S. 668, 684-86

(1984); Padilla v. Kentucky, 559 U.S. 356, 364 (2010). A party may withdraw a guilty

plea after sentencing when it “is necessary to correct a manifest injustice.” Kaiser v. State,

641 N.W.2d 900, 903 (Minn. 2002). “A manifest injustice exists if a guilty plea is not

valid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). And “[t]o be constitutionally

valid, a guilty plea must be accurate, voluntary, and intelligent.” Id. Ineffective assistance

of counsel may render a plea involuntary, and thus constitutionally invalid, when counsel’s

advice falls below the “range of competence demanded of attorneys in criminal cases.” See

State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (quotation omitted).

We evaluate ineffective-assistance-of-counsel claims under the two-part test set

forth in Strickland. See Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020) (applying the

Strickland test). Trial counsel’s performance is ineffective if (1) the representation fell

“below an objective standard of reasonableness” and (2) “there was a reasonable

probability that, but for counsel’s errors, the result of the proceedings would have been

different.” Id. (quotation omitted).

5
 “We review a [postconviction] 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). But we defer to a postconviction court’s findings of fact and “will not

set them aside” unless they are clearly erroneous. See Sanchez v. State, 890 N.W.2d 716,

719-20 (Minn. 2017). And “[t]he defendant bears the burden of establishing the facts that

support his claim that the guilty plea is invalid.” State v. Mikulak, 903 N.W.2d 600, 603

(Minn. 2017).

A. Trial counsel provided Ndaruhutse with objectively unreasonable
advice.

Ndaruhutse argues that he satisfied the first prong of the Strickland test because trial

counsel’s performance fell below an objective standard of reasonableness by advising

Ndaruhutse that deportation could only occur upon adult prosecution or a violation of

probation after turning 18 years old. We agree.

“The objective standard of reasonableness is defined as representation by an

attorney exercising the customary skills and diligence that a reasonably competent attorney

would perform under similar circumstances.” State v. Vang, 847 N.W.2d 248, 266-67

(Minn. 2014) (quotation omitted). And “there is a strong presumption that counsel’s

performance was reasonable.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).

We first identify the assistance that Ndaruhutse claims was ineffective. Ndaruhutse

claims that trial counsel’s advice that he would be deported only if he was prosecuted as

an adult or violated his probation after turning 18 fell below an objective standard of

reasonableness. During the postconviction proceedings, Ndaruhutse offered expert

6
testimony that this immigration advice was not accurate. The expert testified that “[t]here

is not on point case law that says that a Minnesota EJJ adjudication without a revocation is

a conviction for immigration purposes,” but caselaw from other jurisdictions suggests that

an EJJ adjudication would act as such a conviction. The expert further opined that trial

counsel’s advice that Ndaruhutse was “safe from deportation” was “misleading as to the

benefits of any potential resolution of the case and . . . the potential immigration

consequences.” The expert ultimately concluded that the advice was “materially incorrect

and misleading.”

During the postconviction proceedings, neither the state in its briefing nor the

postconviction court in its order addressed whether trial counsel’s advice fell below an

objective standard of reasonableness. Instead, both addressed only whether trial counsel

complied with the requirement to affirmatively advise Ndaruhutse of deportation

consequences of his guilty plea, as required under Padilla. Sanchez, 890 N.W.2d at 721

(explaining that Padilla establishes “affirmative steps” an attorney must take “before

allowing a noncitizen client to accept a plea deal,” including informing a defendant of such

consequences if it is clear that a conviction “will subject the defendant to a risk of removal

from the United States”). But Ndaruhutse does not argue that trial counsel failed to comply

with the requirements of Padilla, and instead argues that the advice from trial counsel

regarding immigration consequences fell below an objective standard of reasonableness

because it was wrong. 1

1
Ndaruhutse relies upon State v. Ellis-Strong to establish that he received ineffective
assistance of counsel. 899 N.W.2d 531 (Minn. App. 2017). Ellis-Strong states that

7
 We conclude that trial counsel’s advice that Ndaruhutse risked deportation only if

he was prosecuted as an adult or violated his probation after turning 18 falls below an

objective standard of reasonableness because deportation consequences of EJJ adjudication

are unclear. Ndaruhutse was convicted of a deportable offense under EJJ status. See 8

U.S.C. § 1227(a)(2)(iii) (2018) (providing that a non-citizen convicted of an “aggravated

felony at any time after admission is deportable”); Campos v. State, 816 N.W.2d 480, 484

(Minn. 2012) (stating that a Minnesota simple robbery conviction was an aggravated felony

for federal immigration purposes). But because Minnesota EJJ adjudication is a hybrid

approach between the juvenile-delinquency system and adult-criminal-justice system,

deportability based on an EJJ adjudication is unclear. See In re Devison-Charles, 22 I. &

N. Dec. 1362, 1365 (BIA 2000) (summarizing authority “that juvenile delinquency

proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes,

and that findings of juvenile delinquency are not convictions for immigration purposes”).

Because trial counsel’s advice to Ndaruhutse failed to capture this uncertainty, it

fell below the customary skills and diligence that a reasonably competent attorney would

have provided in similar circumstances. See Vang, 847 N.W.2d at 266-67; see also

Ellis-Strong, 899 N.W.2d at 539 (stating that an attorney’s mistake of law “may amount to

“affirmative misadvice about [collateral] consequences may amount to ineffective
assistance of counsel if the Strickland factors are met.” Id. at 539. We note that Padilla
questions the collateral-versus-direct-consequences distinction as applied to deportation
consequences. 559 U.S. at 364-66. But we need not resolve the collateral-versus-direct-
consequences distinction here because we apply Strickland regardless to determine
whether Ndaruhutse received ineffective assistance of counsel. Ellis-Strong, 899 N.W.2d
at 539.

8
an objectively unreasonable performance”). Thus, we conclude that Ndaruhutse met his

burden to establish that he received objectively unreasonable advice.

B. Ndaruhutse was not prejudiced by counsel’s objectively unreasonable
advice.

Ndaruhutse argues that the postconviction court abused its discretion in denying his

petition because he established that he would not have accepted the state’s offer to plead

guilty but for counsel’s objectively unreasonable advice. To establish prejudice,

Ndaruhutse “must demonstrate a reasonable probability that, but for counsel’s ineffective

representation, he would not have entered his plea.” Johnson v. State, 673 N.W.2d 144,

148 (Minn. 2004). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

The postconviction court determined that Ndaruhutse did not meet his burden to

establish prejudice. In so doing, the postconviction court noted Ndaruhutse’s testimony

“that he would not have pled guilty had he known an EJJ guilty plea to first-degree

aggravated robbery may subject him to deportation.” But the postconviction court did not

“find that testimony credible in light of all the other evidence in the record.” In making

this finding, the postconviction court specifically referenced Ndaruhutse’s testimony

during the plea colloquy agreeing that he “very likely could be deported on” the charged

offense. We decline to disturb the postconviction court’s credibility determination because

“[t]he credibility of witnesses and the weight to be given their testimony are determinations

to be made by the factfinder.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992)

(quotation omitted); see also State v. Eakins, 720 N.W.2d 597, 604 (Minn. App. 2006)

9
(“[C]redibility determinations are the exclusive province of the district court and will not

be disturbed on appeal absent a showing of clear error.” (citing DeMars v. State, 352

N.W.2d 13, 16 (Minn. 1984)). The postconviction court did not abuse its discretion in

determining that the evidence did not establish a reasonable probability that, but for

counsel’s ineffective representation, Ndaruhutse would not have entered his plea.

We therefore conclude that the postconviction court did not abuse its discretion by

denying Ndaruhutse’s petition for relief.

II. The postconviction court did not abuse its discretion by denying Ndaruhutse’s
petition for relief because he did not meet his burden to show his plea was
unintelligent.

Ndaruhutse alternatively seeks to withdraw his plea, claiming that it was

unintelligent, and thus constitutionally invalid, because he was not advised of the

restitution consequences before he entered his plea. We disagree.

A plea agreement “represent[s] a bargained-for understanding between the

government and criminal defendants in which each side foregoes certain rights and

assumes certain risks in exchange for a degree of certainty as to the outcome of criminal

matters.” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App. 2008) (quotation omitted).

“[A] district court generally should not alter the terms of a restitution obligation negotiated

as part of a plea agreement if it materially changes the expectations of the parties to the

bargain.” Id. at 604. And a plea agreement may be unintelligent when a district court

imposes additional conditions of probation not contemplated by the plea agreement.

Compare State v. Noreen, 354 N.W.2d 77, 78 (Minn. App. 1984) (remanding for

resentencing when the district court ordered the defendant to pay $2,000 in restitution and

10
restitution was not contemplated by the plea agreement), with State v. Anderson, 507

N.W.2d 245, 246-47 (Minn. App. 1993) (affirming the district court’s more than $10,000

restitution order when the record suggested the defendant “should have been aware that the

victim might seek and the court might order restitution”), rev. denied (Minn. Dec. 22,

1993).

We conclude that the postconviction court did not abuse its discretion in

determining that Ndaruhutse failed to show that the restitution order rendered his plea

unintelligent. The postconviction court’s finding that Ndaruhutse had notice of the

restitution request is supported by the record. The PDI contemplated restitution and trial

counsel had reviewed the PDI and noted no errors or corrections. The record also supports

the postconviction court’s finding that Ndaruhutse had an opportunity to withdraw his plea

when the state sought restitution and that he declined to do so.

Thus, we conclude that the postconviction court did not abuse its discretion by

denying Ndaruhutse’s petition for relief.

Affirmed.

11