This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1188

Hector Martinez, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed April 20, 2015

Reversed and remanded

Cleary, Chief Judge

Dakota County District Court

File No. 19-T7-05-074161

Gregory S. Bachmeier, Maple Grove, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Alina Schwartz, Campbell Knutson, P.A., Eagan, Minnesota (for respondent)

Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and 

Hooten, Judge.

U N P U B L I S H E D O P I N I O N

CLEARY, Chief Judge

In this postconviction appeal, appellant challenges the district court’s denial of his 

motion to withdraw his guilty plea for domestic assault under the manifest injustice 
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standard. Appellant argues that his guilty plea was not voluntarily or intelligently made 

because he was not advised as to the immigration consequences of his plea. Because we 

conclude the district court erred by failing to consider appellant’s motion a petition for 

postconviction relief, we reverse and remand for further consideration by the district 

court. 

FACTS

Appellant Hector Martinez has been living in the United States since November 

1999, when he entered the country illegally. In November 2005, Martinez pled guilty to 

fifth degree domestic assault and disorderly conduct. At the plea hearing, neither the 

court nor the defense attorney questioned Martinez as to whether he knew of or 

understood the deportation consequences of a guilty plea. In the transcript of the plea 

hearing, the court and the defense attorney both indicate that Martinez was only 

instructed as to the rights and consequences included in the plea petition form. The plea 

petition form that Martinez signed lacked any warning as to the deportation consequences 

of the guilty plea. The form apparently had not been updated to include the immigrationconsequences language that should have been added in 1999, pursuant to 1998 

amendments of Minn. R. Crim. P. 15. See Amendments to Rules of Criminal Procedure, 

No. C1-84-2137 (Minn. Aug. 21, 1998) (order). Martinez was sentenced to probation 

and a stay of adjudication on the fifth degree domestic assault charge.

On April 10, 2013, the Department of Homeland Security notified Martinez that

he had been placed in removal (deportation) proceedings. To avoid removal, Martinez 

began to pursue an I-601A Application for Provisional Unlawful Presence Waiver with 
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the United States Citizenship and Immigration Services (USCIS). In preparing the I601A waiver, a background check revealed that Martinez had pleaded guilty to fifth 

degree domestic assault. Under section 237(a)(2)(E) of the Immigration and Nationality 

Act, a guilty plea for domestic assault constitutes a deportable offense. 8 U.S.C. 

§ 1227(a)(2)(E). USCIS will deny an application for an I-601A waiver if the applicant 

has a deportable offense on his record. USCIS, Instructions for Application for 

Provisional Unlawful Presence Waiver 6 (2015). Because Martinez could not be 

approved for the I-601A waiver with the guilty plea for domestic assault on his record, 

Martinez filed a motion to withdraw the guilty plea on May 27, 2014.

The district court held a brief motion hearing on the matter on June 25, 2014. At 

the hearing, the district court stated that, in order for Martinez to discuss whether his 

attorney had provided him with the immigration-consequences warning, Martinez would 

“have to file a petition for post-conviction relief so that the attorney could be here and be 

questioned; and you would have to request a hearing and I would have to decide whether 

or not I was even going to grant a hearing on the issue.” The district court denied 

Martinez’s motion the same day as the hearing. The entirety of the district court’s order 

read “Motion to withdraw plea to domestic assault is denied. 1) 8 years after plea and 

prejudice to state; 2) Def. was represented by counsel and this is not a post-conviction 

competency of counsel.” This appeal followed. 

D E C I S I O N

Minn. Stat. § 590.01, subd. 1(1) (2014) allows a person convicted of a crime, who 

claims the conviction was obtained in violation of the law, to file a petition in the district 
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court to vacate the judgment. The application of a statute to undisputed facts involves a 

question of law, which this court decides under a de novo standard of review. State v. 

Johnson, 743 N.W.2d 622, 625 (Minn. App. 2008). 

A petition for postconviction relief must be entitled in the name of the petitioner 

versus the state of Minnesota. Minn. Stat. § 590.02 (2014). It must also include 

(1) a statement of the facts and the grounds upon 

which the petition is based and the relief desired. . . .

(2) an identification of the proceedings in which the 

petitioner was convicted including the date of the entry of 

judgment and sentence or other disposition complained of;

(3) an identification of any previous proceeding, 

together with the grounds therein asserted taken on behalf of 

the petitioner to secure relief from the conviction and 

sentence or other disposition;

(4) the name and address of any attorney 

representing the petitioner. . . .

Id. “The court shall liberally construe the petition and any amendments thereto and shall 

look to the substance thereof and waive any irregularities or defects in form.” Minn. Stat. 

§ 590.03 (2014). 

Martinez’s motion met these basic statutory requirements of a petition for 

postconviction relief. Additionally, the only way to bring a post-sentence motion to 

withdraw a guilty plea based upon Minn. R. Crim. P. 15.05 is within a petition for 

postconviction relief. James v. State, 699 N.W.2d 723, 727 (Minn. 2005). Therefore, the 

district court should have treated Martinez’s motion as a petition for postconviction relief 

under Minn. Stat. § 590.01. We remand for the district court to reconsider Martinez’s 

motion. 
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As a threshold matter, several issues as to timeliness remain for the district court 

to decide. The district court appears to have dismissed Martinez’s motion on the basis of 

the state’s argument that the motion was untimely under the tests established for 

timeliness in rule 15.05. However, because a motion to withdraw a guilty plea after 

sentencing must be raised in a petition for postconviction relief, Martinez’s motion is 

governed by the timeliness rules in Minn. Stat. § 590.01, subd. 4(a)-(c) (2014). See 

Lussier v. State, 821 N.W.2d 581, 591 n.2 (Minn. 2012) (holding that the timeliness of a 

motion to withdraw a guilty plea after sentencing is treated the same as the “manner in 

which delays in filing petitions for postconviction relief are treated.”) (quoting James v. 

State, 699 N.W.2d 723, 728 (Minn. 2005)).

On remand, the district court should consider whether the state waived its 

timeliness defenses under Minn. Stat. § 590.01, subd. 4(a)-(c) by failing to raise them 

before the district court. See Carlton v. State, 816 N.W.2d 590, 601, 607 (Minn. 2012)

(holding that the statute of limitations in Minn. Stat. § 590.01, subd. 4(c) may be waived

by the state). If the district court determines that the state did not waive its defenses 

under Minn. Stat. § 590.01, subd. 4(a)-(c), then the district court should resolve whether 

Martinez’s motion was timely according to Minn. Stat. § 590.01, subd. 4(a)-(c).

If the district court determines that Martinez’s motion was timely filed, then the 

district court should grant Martinez an evidentiary hearing to determine whether Martinez 

received the immigration-consequences warning required by rule 15. We note that the 

district court should have considered from the outset whether Martinez’s motion merited 

an evidentiary hearing. Minn. Stat. § 590.01 does not specifically require that a petition 
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for postconviction relief request an evidentiary hearing. Instead, when a petition for 

postconviction relief is filed, the court “shall promptly set an early hearing on the petition 

and response thereto, and promptly determine the issues.” Minn. Stat. § 590.04, subd. 1 

(2014). To merit an evidentiary hearing on a petition for postconviction relief, the 

petitioner must allege facts that, if proved by a fair preponderance of the evidence, would 

entitle him to the requested relief. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). 

Where the petition alleges such facts, the court should not issue a summary dismissal of 

the petition. State ex rel. Roy v. Tahash, 277 Minn. 238, 245, 152 N.W.2d 301, 306 

(1967). Courts must resolve any doubts about whether to conduct an evidentiary hearing 

in favor of the defendant seeking relief. State v. Nicks, 831 N.W.2d 493, 504 (Minn. 

2013). 

Martinez’s motion clearly alleged that he had not received an immigrationconsequences warning and that, as a result, his guilty plea was not intelligently made. 

These allegations were supported by Martinez’s affidavit and the documents from the

plea proceedings. To be valid, a guilty plea must be accurate, voluntary, and intelligent. 

Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). Therefore, if the facts of Martinez’s 

case were proved, he could be entitled to the requested relief. 

This court reviews for abuse of discretion a district court’s decision to deny a 

motion to withdraw a guilty plea under Minn. R. Civ. P. 15.05, subd. 1. Campos v. State, 

816 N.W.2d 480, 485 (Minn. 2012). We conclude that the district court abused its 

discretion by denying Martinez’s request without considering whether he was entitled to 

an evidentiary hearing under Minn. Stat. § 590.01. If the district court concludes on 
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remand that Martinez’s motion was timely filed, then the district court should conduct an 

evidentiary hearing to determine whether Martinez received the required immigrationconsequences warning.

Reversed and remanded.