This opinion will be unpublished and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. 

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

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 
2

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 
3

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). 
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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.

D E C I S I O N

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 
5

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 
6

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.
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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-ofjustice 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 
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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.