This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1642 Rojelio Castillo, petitioner, Appellant,

vs. State of Minnesota, Respondent. Filed May 23, 2016 Affirmed Smith, Tracy, Judge Ramsey County District Court

File No. 62-K2-03-002671 Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp , Special Assistant Public Defender, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Ka arin Long, Assistan t County Attorney, St. Paul, Minnesota (for appellant) Considered and decided by Reyes, Presiding Judge ; Ross, Judge; and Smith, Tracy, Judge. U N P U B L I S H E D O P I N I O N SMITH, TRACY , Judge Appellant Rojelio Castillo challenges th e postconviction court’s summary denial of his petition for postco nviction relief, arguing that he shou ld be allowed to withdraw his2 guilty plea to fifth-degree possession of a controlled su bstance because of testing deficiencies at the St. Paul Police Departme nt Crime Lab (SPPDCL). Because Castillo’s petition was untimely, we affirm. FACTS On July 21, 2 003, a St. Paul police officer responde d to complaints of narcotics in an alley. The officer saw a man look at him and begin to run. The officer stopped the man, who identified himself as Castillo. Cas tillo told the officer th at he had warrants, methamphetamine in his front pocket, and a small bag of marijuana. The officer recovered two bags of suspected controlle d substances from Castillo’s pockets. The SPPDCL determined that the substance in one of the bags tested positive for methamphetamine. The state charged Castillo with fifth- degree controlled-substance crime for possessing methamphetamine. Castillo pleaded guilty to the charge . Castillo signed a plea petition indicating that he made no claim hewas innocent, and he agreed at the plea hearing that the officer found “drugs” in his possession and that those “drugs” tested positive for methamphetamine. On July 18, 2014, Castillo filed a petiti on for postconviction relief, citing testing deficiencies at the SPPDCL that were identi fied in a 2012 Dakota County case. Castillo argued that his postco nviction petition was not time-barred and that he was entitled to postconviction relief because of newly discovere d evidence, a Brady violation, a dueprocess violation, manifest injustice, a nd ineffective assistance of counsel. The postconviction court denied Castillo’s pe tition without an evid entiary hearing.3 Castillo appeals. D E C I S I O N We review the postconviction court’s deni al of a petition for postconviction relief for an abuse of discretion. Riley v. State , 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction court abuses its di scretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record.” Id. (quotation omitted). “We review legal issues de novo, bu t on factual issues our review is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Matakis
v. State , 862 N.W.2d 33, 36 (Minn. 2015) (quotation omitted). When no direct appeal is filed, a pers on seeking postconviction relief must file a postconviction petition within two years of “t he entry of judgment of conviction or sentence.” Minn. Stat. § 590.01, subd. 4(a) (2 012). Because Castillo di d not file a direct appeal, his postconviction petition was due w ithin two years of his sentencing on August 18, 2004. See id. Castillo acknowledges that hi s postconviction petition, filed July 18, 2014, was untimely under subdivision 4(a), but argues that two of the five statutory exceptions to the time bar apply. See id. , subd. 4(b) (2012 ). A petition that invokes one of the statutory exceptions “must be filed within two years of the date the claim arises.” Id. , subd. 4(c) (2012). I. Castillo argues that the SPPDCL testing deficiencies, which were discovered in 2012, constitute newly discovered evidence. A court may consider an untimely petition for postconviction relief if (1) the petitione r alleges that there is newly discovered4 evidence; (2) the evidence coul d not have been discovered through the due diligence of the petitioner or his attorney within the two-year time lim it; (3) the evidence is not cumulative; (4) the ev idence is not for imp eachment purposes; an d (5) the evidence establishes the petitioner’s innocence by clear and convincing evidence. Roberts v. State , 856 N.W.2d 287, 290 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015); see also Minn. Stat. § 590.01, subd. 4(b)(2). 1 The postconviction court determined that Castillo could not satisfy the second and fifth requirements.
In Roberts , this court rejected a petitioner’s ar gument that the testing deficiencies at the SPPDCL could not have been discovered with due d iligence during the two-year time limit. 856 N.W.2d at 291. As in Roberts , Castillo had access to the SPPDCL test results, did not challenge the reliability of the test results, and did not request public funds to obtain expert revi ew of the test results. See id. In addition, the fact that another petitioner discovered the deficiencies belies Ca stillo’s assertion that he could not have discovered the deficiencies with due diligence. See id. Castillo attempts to distinguish Roberts by citing an affidavit filed in his case from the attorney who discovered the SPPDCL defici encies. In the affi davit, the attorney reveals how she discovered the deficiencies a nd when she believes they started. But the attorney does not allege that the deficiencies were impossibl e to discover prior to 2012. As in Roberts , Castillo does not argue that he attempted to investig ate the test results or

1 In Roberts , this court “assume[d] without decidi ng that the newly-discovered-evidence exception is applicable to a request for postconviction relief in the form of plea withdrawal, even though the plain language of the statutory exception suggests that it only applies to convictions resulting from a trial.” 856 N.W.2d at 291 n.2.5 that anyone prevented him from doing so. See id. Castillo has not shown that the evidence could not have been discovered w ith due diligence within the two-year time limit. See Minn. Stat. § 590.01, subd. 4(b)(2). Even if Castillo had shown that he could not have discovered the deficiencies, he has not established his innocence. See id. This court determined in Roberts that the SPPDCL deficiencies alone do not establish innocence. 856 N.W.2d at 291-92. As in Roberts , Castillo offers no evidence regarding th e chemical composition of the relevant substance in his case. See id. at 291. As the postconviction court found, Castillo has never claimed in either his original case or in his postconviction proceeding that the substance was not methamphetamine. Instea d, Castillo told the officer there was methamphetamine in his pocke t and pleaded guilty to posse ssing methamphetamine. By pleading guilty, Castillo waived hi s right to challenge the stat e’s evidence ag ainst him. See id. at 293. Because Castillo does not ar gue that the recovere d substance was not methamphetamine and because there is other nonscientific evidence of Castillo’s guilt, including Castillo’s own statem ents when arrested, Castillo has failed to establish his innocence by clear and co nvincing evidence. See Minn. Stat. § 590.01, subd. 4(b)(2). The postconviction court did not abuse its discretion by determining that the newly-discovered-evidence exception to the time bar does not apply. II. Castillo also argues that his postconvic tion petition should have been heard under the interests-of-justice exception. “[A] court may hear an untimely petition for postconviction relief if ‘the petitioner establishe s to the satisfaction of the court that the6 petition is not frivolous and is in the interests of justice.’” Roberts , 856 N.W.2d at 292 (quoting Minn. Stat. § 590. 01, subd. 4(b)(5)). This exception applies only in “exceptional situations” where a claim has substantive meri t and the petitioner has not “deliberately and inexcusably failed to raise the issue on direct appeal.” Id. (quotations omitted). The court may consid er the degree to which each party is at fault for the alleged error, whether a fundamental unfairne ss to the petitioner needs to be addressed, and whether relief is “necessary to protect the integrity of judicial proceedings.” Id. (quotation omitted). Castillo argues that his postconviction petition has substantive merit based on newly discovered evidence, a Brady violation, a due-process violation, manifest injustice, and ineffective assist ance of counsel. A. Effect of Guilty Plea A counseled guilty plea traditionally operate s “as a waiver of all non-jurisdictional defects arising prior to the entry of the plea.” State v. Ford , 397 N.W.2d 8 75, 878 (Minn. 1986). Castillo pleaded guilty to fifth-degree possession of a controlled substance. Castillo’s first three arguments—regar ding newly discovered evidence, a Brady violation, and procedural due process—as sert evidentiary and procedur al defects arising prior to entry of his guilty pl ea. By entering his counseled gu ilty plea, Castillo waived those arguments. We therefore need only c onsider Castillo’s manifest-injustice and ineffective-assistance-of-counsel arguments.7 B. Manifest Injustice Castillo argues that he is entitled to withdraw his guilty plea to correct a manifest injustice because his plea was not accurate, vol untary, or intelligent. A court must allow a defendant to withdraw a guilty plea if it is “n ecessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manife st injustice occurs if a guilty plea is not accurate, voluntary, and intelligent. Perkins v. State , 559 N.W.2d 678, 688 (Minn. 1997). For a guilty plea to be accu rate, a proper factual basis must be established. State v. Ecker , 524 N.W.2d 712, 716 (Minn. 1994). Castillo pleaded guilty to fifth-degree possession of a controlled substance. Castillo’s signed plea petition indica ted that he made no claim he was innocent, and at the plea hearing Castillo admitted that officers found “drugs” in his possession and th at those “drugs” tested positive for methamphetamine. We conclude that these facts satisfy the accu racy requirement. See Minn. Stat. § 152.025, subd. 2 (2002) (stati ng that a person is gu ilty of fifth-degree controlled-substance crime if he unlaw fully possesses a controlled substance). To determine whether a guilty plea is voluntary, we consid er all relevant circumstances to ensure that the defendant did not plead gu ilty due to improper pressure or coercion. State v. Raleigh , 778 N.W.2d 90, 96 (Minn. 2010). In his plea petition, Castillo stated that no one ha d threatened him or made any promises to obtain his guilty plea. He does not now assert otherwise. Instead, Castillo argues th at the SPPDCL test results improperly pressured hi m to plead guilty. But Castillo did not ask to review the SPPDCL records, did not challenge the test results, and has never disputed that the8 substance was methamphetamine. We discer n no improper pressure or coercion and conclude that Castillo’s plea was voluntary. For a guilty plea to be in telligent, the defendant must understand “the charges against him, the rights he is waiving, and the consequences of his plea.” Id. “‘Consequences’ refers to a plea’s direct consequences, namely the maximum sentence and fine.” Id. Castillo argues that he did not understand the scope of his right to challenge the SPPDCL ev idence and did not know that he waived this right by pleading guilty. But Castillo signed a pl ea petition in which he agr eed that he understood the rights he was giving up by pleading guilty, including the right to challenge the evidence against him in a pretrial hearing, the right to a jury trial, the right to call witnesses, and the right to cross-examine th e state’s witnesses. The record shows that Castillo understood the charge against him, the ri ghts he waived by pl eading guilty, and the consequences of his plea. We therefore conc lude that Castillo’s plea was intelligent. Because Castillo’s guilty plea was accurate , voluntary, and intelligent, Castillo is not entitled to postconviction relief ba sed on a manifest injustice. C. Ineffective Assistance of Counsel Castillo argues that he is entitled to withdraw his guilty plea because his counsel’s representation was ineffective. To succeed on this claim, Ca stillo must show that his counsel’s representation fell below an objectiv e standard of reasonableness and that, but for the counsel’s errors, there is a reason able probability that the outcome of the proceeding would have been different. See State v. Vang , 847 N.W.2d 248, 266 (Minn. 2014). An attorney’s performance is reasona ble if he “exercise[s] the customary skills9 and diligence that a reasonably competent attorney w ould perform u nder similar circumstances.” Id. at 266-67 (quotations omitted). We presume th at a trial counsel’s performance was reasonable. Id. at 266. Castillo argues that his counsel’s repres entation was not reasonable because the attorney “did not demand and review ” the SPPDCL file. But, as in Roberts , Castillo “does not allege that his attorney failed to discuss that option with him, refused his request to challenge the test results, or advised him not to challenge the results.” See 856 N.W.2d at 293. Castillo also fails to pr ovide evidence that de fense attorneys in 2003 customarily requested SPPDCL files in controlled-substance cases. In fact, Castillo’s cited affidavit indicates that defense attorn eys did not customarily request SPPDCL files at that time. Castillo has fa iled to show that his counsel’s performance was unreasonable. In addition, Castillo has not shown that the outcome of his pr oceeding would have been different but for his counsel’s alleged errors. Cas tillo has never asserted that the substance was not methamphetamine. To the c ontrary, Castillo told the arresting officer that he had methamphetamine and agreed at his plea hearing that the substance tested positive for methamphetamine. Castillo has failed to satisfy either prong of the ineffective-assistance-of-counsel test. The postconviction court did not abuse its discretion by determining that the interests-of-justice exception doe s not apply. Because neither statutory exception applies, the postconviction court did not abuse its discretion by denying Castillo’s petition for postconviction relief.10 III. Finally, Castillo argues that the postco nviction court abused its discretion by denying his request for an evidentiary hear ing. We review the postconviction court’s decision regarding whether to hold an evidentia ry hearing for an abuse of discretion. Riley , 819 N.W.2d at 167. A postconviction petitioner is not entitled to an evidentiary hearing if “the petition and the files and record s of the proceeding conclusively show that the petitioner is entitled to no relief.” Mi nn. Stat. § 590.04, subd. 1 (2012). An evidentiary hearing is required only if “there are material facts in dispute that must be resolved to determine the postcon viction claim on its merits.” Powers v. State , 695 N.W.2d 371, 374 (Minn. 2005). Because the material facts are not in di spute and Castillo’s petition is time-barred, Castillo is not entitled to postconviction relief. The postconviction court therefore did not abuse its discretion by deny ing Castillo’s request for an evidentiary hearing. Affirmed.