                           This opinion will be unpublished and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
                                      A14-1400

                             Somlith Vongphasouk, petitioner,
                                       Appellant,

                                              vs.

                                     State of Minnesota,
                                        Respondent.

                                    Filed June 22, 2015
                                         Affirmed
                                      Chutich, Judge

                              Hennepin County District Court
                                File No. 27-CR-99-011779

Deborah K. Ellis, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

         Considered and decided by Chutich, Presiding Judge; Connolly, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Petitioner-appellant Somlith Vongphasouk challenges the denial of postconviction

relief, arguing that his petition was timely and that the district court has inherent authority
to modify an expired sentence. Because Vongphasouk did not file his petition within two

years of the accrual of his claim, we affirm.

                                          FACTS

       Somlith Vongphasouk was born in Laos in 1977. His family fled Laos in 1986

because of the political climate and spent one year in Thailand and six months in the

Philippines as refugees.     The family arrived in California in 1988 and moved to

Minnesota three months later.       In September 1989, Vongphasouk obtained lawful

permanent resident status.

       In 1999, when he was twenty-two years old, Vongphasouk was charged with

felony aiding and abetting offering a forged check. His attorney negotiated a plea

agreement that he believed would not jeopardize Vongphasouk’s immigration status.

Because the attorney was unaware that this negotiated sentence and conviction would

make Vongphasouk ineligible to enter the United States, the attorney advised

Vongphasouk to accept the offer. Vongphasouk accepted the offer and pleaded guilty to

gross misdemeanor offering a forged check. The district court sentenced him to the

recommended sentence of 365 days in jail with 275 days stayed and the remaining 90

days divided between jail and community service work. Vongphasouk was not advised

that pleading guilty could affect his immigration status, and the guilty plea petition lacked

an immigration warning.

       Since that time, Vongphasouk has not only remained offense-free but also has

become, as the postconviction court noted, “a valuable, productive member of this

community.” In 2006 and 2007, Vongphasouk visited Laos and was allowed to reenter


                                                2
the United States. In 2010, while returning from a third trip to Laos, United States

Customs and Border Protection detained Vongphasouk and charged him with being an

inadmissible alien.    Vongphasouk faces removal proceedings that could result in

deportation. See 8 U.S.C. § 1227(a)(2)(A)(i) (2012) (stating that aliens convicted of

crimes involving moral turpitude and sentenced to one year or longer are deportable). In

2011, Vongphasouk filed a petition for postconviction relief; after an evidentiary hearing,

the postconviction court denied relief.

       In January 2014, Vongphasouk filed a motion to correct his sentence under

Minnesota Rule of Criminal Procedure 27.03, subdivision 9, asking the district court to

reduce his sentence by one day. At the hearing in April 2014, Vongphasouk argued that

the district court could consider his motion as a petition for postconviction relief. The

state opposed reducing Vongphasouk’s sentence.

       In June 2014, the district court denied relief. In denying the motion to correct the

sentence, the district court noted that rule 27.03, subdivision 9, only permits the court to

correct a sentence not authorized by law. The district court explained that because

Vongphasouk’s sentence was not unauthorized or contrary to law, it could not grant relief

on this basis.

       The district court then discussed the timeliness of Vongphasouk’s motion if

construed as a postconviction petition, noting that he filed for relief beyond the two-year

time bar set forth in Minnesota Statutes section 590.01, subdivision 4(a) (2014). The

district court concluded that the petition met the interests-of-justice exception listed under

subdivision 4(b)(5) (2014), and therefore it was not time barred under subdivision 4(a).


                                              3
Specifically, the district court concluded that the interests of justice warranted

considering the petition because of the federal government’s failure to apply the law

during Vongphasouk’s 2006 and 2007 trips to Laos. And it stated that applying the

interests-of-justice exception would not affect the finality of his conviction.

       Despite meeting the interests-of-justice exception, the district court still considered

the petition untimely. It reasoned that Vongphasouk knew or should have known of his

claim in October 2010, when Customs and Border Protection first detained him. But he

did not file this petition until January 2014. Because Minnesota Statutes section 590.01,

subdivision 4(c) (2014) requires a petition to be filed within two years of the accrual of

the interests-of-justice claim, the district court considered the petition untimely.

       The district court nevertheless discussed the merits of Vongphasouk’s petition but

reluctantly found that relief was not warranted. It concluded that while adjusting the

sentence by one day was “modest, sensible, and harmless,” it had no legal basis to modify

the sentence. Vongphasouk appealed.

                                      DECISION

       On appeal, Vongphasouk argues that the district court erred by dismissing his

petition as untimely and by concluding that it lacked the inherent authority to modify the

sentence.   We affirm the denial of postconviction relief because the petition was

untimely.

       Minnesota Statutes section 590.01, subdivision 4(a), requires a petition for

postconviction relief to be filed not more than two years after “the entry of judgment of

conviction or sentence if no direct appeal is filed.” But a petition may be filed after this


                                              4
two-year time limit if “the petitioner establishes to the satisfaction of the court that the

petition is not frivolous and is in the interests of justice.” Id., subd. 4(b)(5). A petition

brought under the interests-of-justice exception must be filed within two years of the date

that the claim arises. Id., subd. 4(c).

       The district court here concluded that Vongphasouk met the requirements of the

interests-of-justice exception but that his petition was still untimely. It determined that

the triggering event was Vongphasouk’s 2010 detention, and therefore his petition was

untimely because he did not file it until 2014. Vongphasouk does not argue that this

conclusion is incorrect. Instead, he urges this court to use its inherent authority to waive

the time bar in the interests of justice. Vongphasouk relies on Vang v. State, 788 N.W.2d

111 (Minn. 2010), to support this argument.

       In Vang, the state filed a delinquency petition alleging that the 14-year-old Vang

committed first-degree murder, second-degree murder, and attempted first-degree

murder. Id. at 113. The state filed a motion to certify Vang as an adult. Id. Vang then

appeared in juvenile court, and the parties informed the court that they had negotiated a

resolution. Id. Vang did not stipulate to any of the factors required to certify him as an

adult, and the juvenile court made no findings or ruling on the adult certification issue.

Id. The juvenile court accepted Vang’s guilty pleas to first-degree murder and attempted

first-degree murder, and it sentenced him to adult sentences for the convictions. Id.

       Following these convictions, Vang wrote to the State Public Defender’s Office

five times between 2001 and 2005, requesting that it represent him in appealing the

convictions. Id. at 113-14. The Public Defender’s Office continuously replied that it


                                              5
could not help him. Id. at 114. After Vang’s sixth request in 2008, the Public Defender’s

Office assigned counsel in 2009. Id. Vang’s postconviction petition was denied. Id.

       Upon review, the supreme court rejected the state’s argument that Vang’s petition

was barred by the two-year time limit for postconviction relief. Id. It noted that it has

interpreted Minnesota Constitution article VI, section 2, as granting it “constitutionally

independent authority to review determinations by the other state courts,” and that it has

“invoked this inherent authority to hear an appeal.”       Id. (quotation omitted).    The

supreme court concluded that Vang’s case was a rare and exceptional case both

procedurally and substantively: procedurally because of Vang’s multiple requests for

representation by the Public Defender’s Office; substantively because it involved

nonwaivable subject-matter jurisdiction claims. Id. at 114-15. It then proceeded to

review Vang’s claims. Id. at 115. Notably, the supreme court stated that because its

review was “akin to a direct appeal,” it would not decide the statute of limitations issue.

Id.

       Vongphasouk’s reliance on Vang is unavailing. Since its release, the supreme

court has been reluctant to invoke its inherent authority, noting the rare and exceptional

procedural and substantive circumstances present in Vang. See Sanchez v. State, 816

N.W.2d 550, 566-67 (Minn. 2012); Carlton v. State, 816 N.W.2d 590, 615 n.14 (Minn.

2012). While Vongphasouk relies on Vang, he does not articulate how his situation

proves to be so rare and exceptional as to require the invocation of this court’s inherent

authority.




                                            6
       We conclude that Vongphasouk’s case is more similar to Sanchez v. State than to

Vang. In Sanchez, a petition for postconviction relief was brought under the interests-of-

justice exception but was considered untimely under section 590.01, subdivision 4(c).

816 N.W.2d at 560. Relying on Vang, Sanchez urged the supreme court to consider his

claim under its inherent authority. Id. at 566. But the supreme court declined to do so.

Id. at 567. It noted that unlike Vang, Sanchez was “not persistently trying to seek review

of his conviction,” distinguishing the case from the exceptional procedural circumstances

in Vang. Id. And the supreme court also distinguished the substantive circumstances of

the case, noting that unlike the nonwaivable jurisdictional argument in Vang, “the errors

that Sanchez seeks to have reviewed, [including] the constitutional right to have effective

assistance of counsel . . . are rights that are subject to waiver.” Id.

       We conclude that this reasoning applies here. Like Sanchez—and unlike Vang—

no evidence suggests that Vongphasouk persistently sought review of his conviction but

was denied representation. While his delay may have been excusable given that the

current issue did not arise until 2010, he sought postconviction relief twice, and a court

considered his petitions each time.         This procedural history is not as “rare and

exceptional” as that in Vang.

       Vongphasouk argues that his petition should be considered because his “[t]rial

counsel’s and 2011 postconviction counsel’s failures provide cause for a review on the

merits.” But the Sanchez court rejected a similar argument, stating that because the right

to effective assistance of counsel is waivable, it does not reach the substantive level of

“rare and exceptional” that was required for review in Vang. Id. at 567. Because


                                               7
Vongphasouk’s case does not meet the narrow standard set by the supreme court for a

“rare and exceptional” case either procedurally or substantively, we conclude that the

district court did not err by denying the petition as untimely.

       Although we affirm the district court’s decision in this case, we agree that, if more

discretionary standards were applicable, “reducing an already-served sentence by one day

. . . to prevent [Vongphasouk’s] removal to a potentially hostile country is a modest,

sensible, and harmless request.” At oral argument, counsel for the state suggested that

even if it agreed to this minor sentencing modification, the original conviction may still

count for deportation purposes under federal law. That may well be true, but deportation

under these circumstances is troubling. Vongphasouk has remained law-abiding for 16

years; his only offense was aiding and abetting a gross misdemeanor check forgery

offense when he was twenty-two years old. Deporting a “valuable, productive member

of the community” to a country where he does not speak the native language and from

which his family fled political persecution almost 30 years ago when he was just a boy

seems unduly harsh.

       Affirmed.




                                              8
