Juan Miguel Paredes, petitioner, Appellant, vs. State of Minnesota, Respondent.

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Juan Miguel Paredes, petitioner, Appellant, vs. State of Minnesota, Respondent. A07-1117, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-1117
 
Juan Miguel Paredes, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

Filed  December 4, 2007

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. J5-02-552307; J2-98-551268

 

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Worke, Judge.


 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal is from an order denying appellant Juan Miguel Paredes's petition for postconviction relief. Appellant argues that he was denied his right to effective assistance of counsel when he pleaded guilty in the original extended jurisdiction juvenile (EJJ) proceeding and when his probation was revoked.  Appellant also argues that the district court erred in revoking probation.  We affirm.

FACTS

 

Appellant was charged in a delinquency petition with receiving stolen property and committing a crime for the benefit of a gang.  The state sought to certify appellant as an adult based on the statutory presumption provided in Minn. Stat. § 609.229, subd. 4 (2001).  Appellant, who was represented by counsel, pleaded guilty in June 2002 to the offense of committing a crime for the benefit of a gang, and agreed that the matter would be handled as an EJJ proceeding, in exchange for the state's agreement not to seek adult certification.  Appellant received an EJJ disposition and a stayed adult sentence of a year and a day.

In May 2005, appellant pleaded guilty to DWI in another county.  Based on this violation of the condition that appellant remain law-abiding, and on his failure to notify his probation officer of the offense, the state sought to revoke appellant's EJJ probation.  In November 2005, appellant, who was represented by counsel, admitted to violating his conditions of probation but argued that his EJJ probation should not be revoked.  The district court, however, revoked probation and executed appellant's adult sentence.

In May 2007, appellant filed a postconviction petition challenging his conviction and revocation.  Appellant argued that he was denied the effective assistance of counsel before he pleaded guilty because his attorney did not challenge the search warrant for his residence.  Appellant also argued that he was denied the effective assistance of counsel at the probation-revocation proceeding because his attorney failed to advise him that he was subject to deportation if an adult conviction were entered on his record.  Finally, appellant argued that the district court abused its discretion in revoking his EJJ probation.  The district court denied the petition.

D E C I S I O N

            This court reviews a postconviction order to determine whether there are sufficient facts to support the postconviction court's findings, and will not reverse the decision absent an abuse of discretion.  See Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

Ineffective Assistance Initial EJJ Case

            Appellant argues that his attorney in the EJJ proceeding was ineffective because she failed to challenge, or even review, the search warrant, which appellant now argues was missing a page from the warrant application and, therefore, was not supported by probable cause.  Appellant asserts, based on a review of his attorney's case file and of the district court file, that his counsel never reviewed the search warrant for 201 Annapolis Street, his residence, but only reviewed the warrant application for 492 Ada Street, the other house searched as part of the same investigation.  Appellant contends that the Annapolis search warrant application was missing a page when it was presented to the magistrate for review.

            A defendant claiming ineffective assistance of counsel must prove that his counsel's representation "fell below an objective standard of reasonableness" and that there is a reasonable probability that "but for counsel's unprofessional errors," the result would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

            This court rejected a claim of ineffective assistance for failing to challenge an arrest warrant in State v. Grover, 402 N.W.2d 163, 166-67 (Minn. App. 1987).  In Grover, the defendant was charged with terroristic threats committed against the police who arrested him on the warrant.  Id. at 165.  This court noted that counsel's decision not to contest the warrant "may have been a strategic move," which "does not rise to the level of ineffective assistance."  Id. at 166.

            The Annapolis search warrant application, unsealed from the file for purposes of the postconviction proceeding, is missing the fourth of five pages.  Appellant has not shown, however, that the warrant application seen by the issuing magistrate was incomplete.  The missing page could have been lost when the application was inserted in the court file.  More importantly, the search warrant application for the other house (492 Ada) is complete and appears to be virtually identical to the Annapolis warrant application, except that the Annapolis warrant application contains more information.  Appellant's counsel could reasonably have concluded, even assuming that the Annapolis warrant application then in the record was missing a page, that this was only a clerical error that, given the complete and otherwise nearly identical Ada application, would not lead to a suppression of the evidence seized at the Annapolis residence. 

We conclude that appellant has not shown that his attorney failed to review the search-warrant application for 201 Annapolis.  Counsel testified at the postconviction hearing that it was her practice to review search warrants in a case, and that she may have looked at the warrant while it was in the prosecutor's file.  Although she admitted that she had no notes showing such a review of the warrant, this does not establish that such a review never occurred.

Appellant also claims that his attorney should have argued that the warrant application did not provide sufficient facts to support the authorization for nighttime execution of the warrant.  But this argument also relies on the "missing page" theory.  The fourth page of the Ada application, whose first three pages are identical to those of the Annapolis application, states that the known presence of several guns in the house "could possibly give the suspects enough time to retrieve weapons and cause harm to the entering officers."  This is a sufficient individualized showing under the case law, and not just a boilerplate assertion of need for a nighttime authorization.  See generally State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000) (holding that likely presence of weapons justified no-knock entry, as well as nighttime execution, which defendant did not challenge).

Ineffective Assistance EJJ Revocation

Appellant also argues that the attorney (a different attorney) who represented him at the EJJ probation-revocation proceeding was ineffective for failing to advise him that he was subject to automatic deportation if an adult conviction was entered.  A probationer has a right, under the rules of criminal procedure, to be represented by counsel at all stages of the probation-revocation proceeding.  See State v. Murray, 529 N.W.2d 453, 455 (Minn. App. 1995).

            The supreme court has held that deportation is a collateral, not a direct, consequence of a guilty plea.  Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998).  In Alanis, the supreme court rejected the argument that the defendant's attorney's failure to advise him of the possibility of deportation constituted ineffective assistance, stating that

as a collateral consequence of the guilty plea, [defendant's] attorney was under no obligation to advise him of the deportation possibility and, therefore, the failure to so inform him could not have fallen below an objective standard of reasonableness as required by Strickland.

Alanis, 583 N.W.2d at 579.  Appellant argues that Alanis is distinguishable because deportation is automatic in this case.

            Appellant discusses at length the 1996 amendments to the federal immigration statutes that allow deportation based on conviction for an "aggravated felony."  See 8 U.S.C. § 1101 et seq.  But he does not establish that that law has eliminated either what was described in Alanis as the federal agency's "discretion to commence deportation proceedings," or the "various administrative procedures which must be followed."  583 N.W.2d at 578-79.  Appellant argues in his brief that conviction of an aggravated felony "generally" means "certain and speedy deportation" because the defendant will not be eligible for "most discretionary relief from removal."  But he cites no provision of the federal statute making deportation automatic.  Benjamin Casper, an immigration lawyer, testified at the postconviction hearing that a conviction for an aggravated felony means "essentially" automatic deportation.  But this assertion falls somewhat short of establishing that deportation would be automatic, and, even if it could be construed to make that assertion, appellant has not cited any authority in support of it, leaving this court to rely on the assertion of an expert witness without citation to any supporting legal authority.

            Appellant has not shown that Alanis can be distinguished based on the consequence for a conviction of an aggravated felony.  As the postconviction court noted, appellant entered an admission to the probation violations in the face of overwhelming evidence, not as a tactical decision to obtain a favorable plea bargain.  Appellant had little choice but to admit the violations, particularly the DWI offense.  Thus, even if appellant's counsel was ineffective in failing to advise him of the immigration consequences of admitting the violations, he cannot show a reasonable probability that the district court would have found no probation violation or no grounds for revocation.  See generally Gates, 398 N.W.2d at 561 (holding that defendant must show reasonable probability that "but for counsel's unprofessional errors" result would have been different).

A defendant has a right to be informed of direct consequences of a guilty plea before pleading guilty.  See Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002).  But, even assuming the same right applies to probation-violation admissions, a probationer could not show prejudice if the evidence he confronted compelled the admission.  And here that was all that appellant's attorney advised to admit the violations and contest the revocation of his probation.  Even if appellant's counsel had advised appellant of the immigration consequences of an adult conviction, it appears that the district court would have had no choice but to find that appellant's DWI conviction constituted an intentional or inexcusable violation of a specific condition of his probation.

The Revocation Decision

            Appellant also argues that the district court erred in revoking his EJJ probation, in a fashion he characterizes as being a reflexive reaction to the violation, and under the mistaken impression that, if juvenile probation could not be continued because of appellant's age, the adult sentence had to be executed. 

            This court reviews a probation revocation, including a revocation of EJJ probation, for an abuse of discretion.  State v. Bradley, 592 N.W.2d 886, 887 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Appellant argues that the district court had the discretion to revoke EJJ status but place him on adult probation.  See  Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(2).  Appellant also argues that because he had completed his G.E.D. and found a job, and had no violations in the previous three years, the court abused its discretion in revoking probation.  But he cites no authority in which this court or the supreme court has reversed a probation revocation based on a holding that the district court's weighing of the positives and negatives of a probationer's compliance with probation was an abuse of discretion.

Finally, appellant cites international treaties and provisions of international law recognizing the rights of juveniles.  This authority does not appear to have any relevance unless it is assumed that the district court failed to give the same consideration to appellant's EJJ revocation that it would have given to an adult criminal probation revocation.  The record does not support such an assumption.

            Affirmed.