This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0690

German N. Salgado Velasquez, petitioner, 

Appellant, 

vs. 

State of Minnesota, 

Respondent

Filed December 29, 2014

Affirmed

Worke, Judge

Scott County District Court

File No. 70-CR-06-22930

Khanh Ngoc Nguyen, Bloomington, Minnesota (for appellant)

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, 

Shakopee, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes, 

Judge. 

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

WORKE, Judge

Appellant challenges the district court’s denial of his petition to withdraw his 

guilty plea. We affirm.
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FACTS

On November 28, 2007, appellant German N. Salgado Velasquez pleaded guilty to 

fifth-degree domestic assault. He was represented by counsel, completed and signed a 

petition to plead guilty, and was questioned by the district court before his plea was 

accepted. The petition did not mention immigration consequences that might result from

the conviction, nor were any discussed on the record. Velasquez was placed on probation 

for up to one year; he was discharged from probation on November 25, 2008. 

In September 2013, the Department of Homeland Security commenced 

deportation proceedings against Velasquez. The notice of removal contained no 

reference to his domestic-assault conviction; rather, the reason stated for deportation was 

that Velasquez is an undocumented immigrant. 

In December 2013, Velasquez moved the district court to withdraw his plea and 

vacate his conviction. His submission was entitled a “motion” but internally referred to 

itself as a “petition for postconviction relief.” Velasquez asserted that his plea was 

invalid because he was never advised of possible immigration consequences stemming 

from his plea. Velasquez stated that, because his conviction was a crime involving moral 

turpitude, he is disqualified from receiving a potential cancellation of removal, which 

might prevent his deportation. 

The district court denied the motion on grounds that it was untimely and 

substantively without merit; it also concluded that Velasquez’s submission was a motion 
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and not a petition for postconviction relief due to irregularities in filing. This appeal 

follows.

D E C I S I O N

Petition for postconviction relief 

The district court concluded that Velasquez’s submission was a motion, not a

petition for postconviction relief. We must resolve whether the submission comported 

with statutes governing petitions for postconviction relief. “Application of a statute to the 

undisputed facts of a case involves a question of law, and the district court’s decision is 

not binding on this court.” State v. Johnson, 743 N.W.2d 622, 625 (Minn. App. 2008). 

When direct appeal is no longer available, a person convicted of a crime who 

claims that the conviction violated his rights may file a petition in the district court to 

vacate and set aside the judgment. Minn. Stat. § 590.01, subd. 1 (2012). The district 

court found Velasquez’s submission defective as a postconviction petition because it: (1) 

was not entitled in the name of petitioner versus the state, (2) contained argument and 

citation of authorities, and (3) was not filed with an original document and three copies. 

See Minn. Stat. § 590.02 (2012) (setting out requirements of postconviction petitions). 

However, section 590.02 also requires “a statement of the facts and the grounds 

upon which the petition is based and the relief desired[,]” “an identification of the 

proceedings in which the petitioner was convicted including the date of the entry of 

judgment and . . . disposition complained of[,]” and “the name and address of any 

attorney representing the petitioner.” Id., subd. 1. Velasquez’s submission included all 

of these items.
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Minn. Stat. § 590.03 (2012) directs that “[t]he [district] court shall liberally 

construe the petition and . . . shall look to the substance thereof and waive any 

irregularities or defects in form.” While Velasquez’s submission suffered from several 

flaws in form, it was in substance a petition for postconviction relief, and the district 

court should have construed it as such.

Timeliness 

Velasquez next contends that the district court erred in concluding that his petition 

was time-barred, claiming that the interests-of-justice exception applies to his case. “In 

reviewing the district court’s denial of postconviction relief, including a denial based on 

the two-year statutory limit, we review issues of law de novo but will not reverse factual 

findings unless clearly erroneous.” Vazquez v. State, 822 N.W.2d 313, 315-16 (Minn. 

App. 2012). 

Generally, a petition for postconviction relief may not be filed more than two 

years after judgment of conviction if no appeal was pursued. Minn. Stat. § 590.01, subd. 

4(a)(1) (2012). An exception exists when “the petitioner establishes to the satisfaction of 

the court that the petition is . . . in the interests of justice.” Id., subd. 4(b)(5). The 

interests-of-justice exception applies only in exceptional circumstances and is based upon 

a flexible, multifactor analysis. Gassler v. State, 787 N.W.2d 575, 586-87 (Minn. 2010). 

But “[a]ny petition invoking [this] exception . . . must be filed within two years of the 

date the claim arises.” Minn. Stat. § 590.01, subd. 4(c). “‘Claim’ refers to an event that 

supports a right to relief under the asserted exception.” Yang v. State, 805 N.W.2d 921, 

925 (Minn. App. 2011), review denied (Minn. Aug. 7, 2012). The date a claim arises is 
5

based upon an objective “knew or should have known standard.” Sanchez v. State, 816 

N.W.2d 550, 560 (Minn. 2012). The date an interests-of-justice claim arises is a question 

of fact. Id.

The district court found that “at best, [Velasquez’s] claim arose in 2010, when 

Padilla [v. Kentucky] was decided.” Padilla held that failure of counsel to advise of 

immigration consequences stemming from a guilty plea is ineffective assistance of 

counsel. 559 U.S. 356, 374, 130 S. Ct. 1473, 1486 (2010). But Padilla does not have 

retroactive effect, Campos v. State, 816 N.W.2d 480, 499 (Minn. 2012), and cannot 

provide a basis for withdrawal of Velasquez’s plea. Velasquez argues that he was not 

aware of a claim until he was placed into deportation proceedings, but Velasquez’s 

subjective awareness does not control. See Sanchez, 816 N.W.2d at 558-59. Objectively, 

Velasquez should have known that he had a claim when his plea was accepted in the 

absence of any warning regarding potential immigration consequences. See Minn. R. 

Crim. P. 15.02, subd. 1(3) (stating that before a district court accepts a guilty plea a

defendant must indicate understanding of potential immigration consequences). 

Velasquez could have supported a claim for relief after that time. The district court’s 

conclusion that Velasquez’s claim arose when Padilla was decided is erroneous in light 

of Sanchez and Campos, but because the actual date was even earlier, the error was 

harmless. 

The interests-of-justice exception to the two-year time limit is unavailable, 

because more than two years has passed since Velasquez’s claim arose. His petition is 

time-barred. 
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Withdrawal of guilty plea

Lastly, Velasquez argues that the district court erred in concluding that his petition 

was substantively without merit. “When reviewing a postconviction court’s decisions, 

we examine only whether the postconviction court’s findings are supported by sufficient 

evidence.” Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). A decision will be 

reversed only if the court abused its discretion, but issues of law are reviewed de novo. 

Id. 

Following sentencing, a court must allow withdrawal of a guilty plea “upon a 

timely motion and proof to the satisfaction of the court that withdrawal is necessary to 

correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice 

exists if the plea was not valid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). A 

valid plea must be accurate, voluntary, and intelligent. Id. The defendant bears the 

burden of showing his plea was invalid. Id. The validity of a guilty plea is a question of 

law, reviewed de novo. Id. 

Velasquez argues that his plea was not intelligent because he was never advised of

potential immigration consequences. Minn. R. Crim. P. 15.02, subd. 1(3), requires the 

defendant to understand that “if the defendant is not a citizen of the United States, a 

guilty plea may result in deportation, exclusion from admission to the United States, or 

denial of naturalization.” Id. But Velasquez has not established that he was not advised 

or that he did not understand the possible immigration consequences of his plea. 

Velasquez has provided no affidavit saying that he was not advised, nor is there any word 

from his attorney at the time. It is only Velasquez’s present attorney who has submitted 
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an affidavit stating that he “believe[s] that [Velasquez] never received full and accurate 

advice regarding the adverse immigration consequences [Velasquez] would face if he 

pled guilty to misdemeanor domestic assault.” 

Velasquez’s present attorney bases his belief on a review of two documents: the

plea petition and the transcript of the plea hearing. While these documents contain no 

mention of the rule 15 immigration advisory, it is possible that Velasquez’s attorney 

discussed immigration repercussions with him before entering his plea—on this record 

we do not know whether he did or did not. Whether certain words were recorded is not 

what matters; what matters is whether Velasquez’s plea was intelligent, and it is his 

burden to show it was not. 

Additionally, it is presumed that a defendant represented by counsel when entering 

a plea has been advised of his rights. State v. Lorentz, 276 N.W.2d 37, 38 (Minn. 1979); 

see also State v. Propotnik, 299 Minn. 56, 58, 216 N.W.2d 637, 638 (1974) (collecting 

cases supporting the presumption that when a “defendant had full opportunity to consult 

with his counsel before entering his plea, we may safely presume that counsel informed 

him adequately concerning” a right on which he was not “specifically” questioned); cf. 

State v. Lopez, 794 N.W.2d 379, 383 (Minn. App. 2011) (stating that when a defendant 

has no attorney “the duty of inquiry” falls upon the district court). Velasquez cannot 

overcome this presumption, because the belief of his present attorney alone, based upon a 

review of two documents, fails to address whether Velasquez actually discussed potential 

immigration consequences with his attorney before entering his plea.
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Finally, even assuming that Velasquez was not warned of potential immigration 

consequences, the rule 15 immigration advisory concerns consequences that are the 

“result” of the plea. Minn. R. Crim. P. 15.02, subd. 1(3). Velasquez’s conviction did not 

result in his potential deportation. The notice of removal states that the reason for 

deportation is that Velasquez is a citizen of Honduras who has never been admitted or 

paroled since entry into the United States about 14 years ago. In other words, he is being 

deported because he is here without permission, not because he was convicted of

domestic assault. The sole provision of law cited in Velasquez’s removal notice is INA 

§ 212 (a)(6)(A)(i) (2013), entitled “Illegal entrants and immigration violators,” which 

states that aliens “without admission or parole” are “inadmissible.” It is section (a)(2) 

that discusses removal for aliens who commit crimes. The result of Velasquez’s 

conviction is that he may not be able to avail himself of a possible ground for 

cancellation of his deportation. See 8 U.S.C.A. § 1229b (b)(1)(B), (C) (2014) (providing 

possible cancellation of removal if an alien is “of good moral character” and “has not 

been convicted of an offense” involving moral turpitude). There is no direct relationship 

between Velasquez’s conviction and his deportation proceedings. 

We conclude that the district court erred with regard to the nature of Velasquez’s 

submission and the date his claim arose, but correctly concluded that Velasquez’s petition 

is time-barred and substantively without merit. 

Affirmed.