This opinion will be unpublished and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

A15-0395

Ribelino Alberto Avendano, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed November 9, 2015

Affirmed

Hooten, Judge

Dakota County District Court

File No. 19HA-CR-12-391

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney, Jessica Bierwerth, Assistant County 

Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and 

Worke, Judge.

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

HOOTEN, Judge

In this postconviction appeal seeking relief from his 2012 conviction of terroristic 

threats, appellant argues that he should be allowed to withdraw his guilty plea because 
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defense counsel gave him constitutionally insufficient advice regarding the immigration 

consequences of his guilty plea. We affirm.

FACTS

Appellant Ribelino Alberto Avendano illegally entered the United States from El 

Salvador in 1998. Avendano v. Holder, 770 F.3d 731, 733 (8th Cir. 2014). He later 

received temporary protected status and protection from removal under a federal program 

designed to assist illegal immigrants from El Salvador. Id.

In February 2012, the state charged Avendano with one count of terroristic threats, 

alleging that he threatened to kill his live-in girlfriend. Avendano pleaded guilty. At the 

plea hearing, Avendano waived his trial rights and established a factual basis for the plea. 

Defense counsel then questioned him about the possible immigration consequences of the 

plea:

Q: We have spent a great deal of [time] talking about possible 

immigration consequences, correct?

A: Yes.

Q: Included in this plea petition is a portion addressing that, 

correct?

A: Yes.

Q: Now, you’re here with permission to work?

A: Yes.

Q: So you’re here legally, and you have to renew that 

permission every certain period of time?

A: Yes.

Q: You’re aware that this plea may affect your immigration 

status in some form or fashion. We don’t know. I have some 

suspicions, and we have talked about that, but that has 

nothing to do with this court, but you do know that there may 

be consequences, and we talked about that a great deal; is that 

correct?

A: Yes.
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The prosecutor then questioned Avendano:

Q: Mr. Avendano, I understand that you have talked with 

your attorney a great deal about the possible immigration 

consequences. You understand, as a result of this plea, one of 

those possible consequences could be deportation?

A: Yes.

The district court then questioned him:

Q: Sir, here is the situation on that last section as far as 

immigration, deportation, things like that. You won’t be able 

to come back and say, [j]udge, I want my plea withdrawn 

because they are deporting me, and I didn’t think they would. 

Otherwise, I would never have entered a plea like this. So if 

you do get deported, you’re running the risk based on your 

plea here today. I won’t withdraw this plea because of the 

decision of the federal government. Do you understand that?

A: Yes.

The plea petition also referred to the possible immigration consequences of the 

plea: “My attorney has told me and I understand that if I am not a citizen of the United 

States this plea of guilty may result in deportation, exclusion from admission to the 

United States of America or denial of citizenship.” Avendano signed the plea petition, 

which the district court received into evidence. The district court accepted Avendano’s

plea, adjudicated him guilty of terroristic threats, and imposed a probationary sentence.

Several months later, the Department of Homeland Security initiated removal 

proceedings based on this conviction. Id. In July 2014, Avendano sought to withdraw 

his guilty plea by filing a pro se petition for postconviction relief. He argued that he 

received ineffective assistance of counsel because defense counsel failed to advise him 

that a plea of guilty to terroristic threats would lead to “mandatory deportation.”
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The postconviction court denied Avendano’s request to withdraw his plea. It 

found that there was no evidence in the record indicating “that the deportation 

consequences of [Avendano’s] guilty plea were clear” or that Avendano “would be 

automatically or mandatorily deported or that deportation was virtually certain.” The 

postconviction court determined that Avendano was “adequately warned by his counsel, 

the prosecutor and the [c]ourt that deportation was a possibility.” It concluded, therefore, 

that the plea was voluntary and intelligent, and denied the petition without an evidentiary 

hearing. This appeal followed.

D E C I S I O N

Avendano argues that his defense counsel gave him constitutionally insufficient 

advice regarding the immigration consequences of his guilty plea.

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

claims that the conviction violated his rights may file a postconviction petition to vacate 

and set aside the judgment. Minn. Stat. § 590.01, subd. 1 (2012). “In postconviction 

proceedings, the burden is on the petitioner to establish, by a fair preponderance of the 

evidence, facts that warrant relief.” Williams v. State, 692 N.W.2d 893, 896 (Minn. 

2005). We review a postconviction court’s denial of a petition for relief for an abuse of 

discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction court 

abuses its discretion 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).

A defendant “must” be allowed to withdraw his or her plea if “withdrawal is 

necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest 
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injustice exists if a guilty plea is not valid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 

2010). To be valid, a guilty plea must be accurate, voluntary, and intelligent. Id. 

Ineffective assistance of counsel renders a guilty plea involuntary and unintelligent. See 

Butala v. State, 664 N.W.2d 333, 341 (Minn. 2003); see also Hill v. Lockhart, 474 U.S. 

52, 56–57, 106 S. Ct. 366, 369 (1985).

Avendano argues that defense counsel failed to provide effective assistance in the 

plea process because defense counsel did not advise him that a conviction of terroristic 

threats would subject him to “mandatory deportation.” As a result, he argues, his plea 

was neither voluntary nor intelligent.

We analyze ineffective assistance of counsel claims under the two-pronged 

analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). 

“First, the defendant must prove that counsel’s representation fell below ‘an objective 

standard of reasonableness.’” Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) 

(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). “Second, the defendant must 

prove that there is ‘a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.’” Id. (quoting Strickland, 466 

U.S. at 694, 104 S. Ct. at 2068).

Avendano claims that defense counsel’s assistance fell below an objective 

standard of reasonableness under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In 

Padilla, the Supreme Court held that the Sixth Amendment requires that a noncitizen 

defendant be informed of the deportation risks associated with pleading guilty. Id. at 

1482, 1486. The content of the advice required varies depending on the immigration 
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statute applicable to the guilty plea in question. Id. at 1483. When the deportation 

consequences of a plea are “not succinct and straightforward,” defense counsel “need do 

no more than advise a noncitizen client that pending criminal charges may carry a risk of 

adverse immigration consequences.” Id. But, when the deportation consequences of a 

plea are “truly clear” and defense counsel can “easily determine[]” those consequences 

“simply from reading the text” of the immigration statute, “the duty to give correct

advice” about the likelihood of deportation is “equally clear.” Id.

Avendano argues that his conviction of terroristic threats1under Minn. Stat. 

§ 609.713, subd. 1 (2010), satisfies the Immigration and Nationality Act’s definition of a 

“crime involving moral turpitude” and is therefore a presumptively deportable offense. 

See 8 U.S.C. § 1227(a)(2)(A)(i) (2006). In support of this argument, Avendano cites his 

own appeal from the deportation order of the Board of Immigration Appeals (BIA), in 

which he made the same argument. Avendano, 770 F.3d at 733. In affirming the BIA’s 

order deporting Avendano, the federal court of appeals stated that because Congress did 

not define “crime involving moral turpitude,” “the meaning of the phrase was left to 

future administrative and judicial interpretation.” Id. at 734 (quotation omitted). And, in 

grappling with the issue of whether Avendano’s conviction of terroristic threats 

constituted moral turpitude under its administrative and caselaw precedent, the threejudge panel disagreed as to the appropriate administrative and caselaw test that was to be 

applied in making such determination. See id. at 738–40 (Kelly, J., dissenting).

 

1 As of May 12, 2015, “terroristic threats” has been renamed “threats of violence.” 2015 

Minn. Laws ch. 21, art. 1, § 109, at 234 (amending Minn. Stat. § 609.713 (2014)).
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Here, unlike in Padilla and as demonstrated by the divided opinion in Avendano, 

the deportation consequences of a plea to terroristic threats are “not succinct and 

straightforward,” and Avendano’s defense counsel at the time of his plea and conviction 

could not have ascertained the deportation consequences of Avendano’s plea “simply 

from reading the text of the statute.” Padilla, 130 S. Ct. at 1483. In this case, then, all 

that was required under Padilla was that defense counsel, at the time of the plea, inform 

Avendano that pleading guilty to the offense “may carry a risk of adverse immigration 

consequences.” Id.

The record amply establishes that Avendano was repeatedly informed of this risk, 

and therefore defense counsel’s performance was not objectively unreasonable. See 

Padilla, 130 S. Ct. at 1483. Because defense counsel’s performance was not objectively 

unreasonable, Avendano has not shown that he received ineffective assistance of counsel. 

See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The district court did not abuse its 

discretion by rejecting Avendano’s claim that his plea was invalid and denying his 

postconviction petition.

Affirmed.