text:
    David M. PIETSCH, D.C., et al., Appellants, v. MINNESOTA BOARD OF CHIROPRACTIC EXAMINERS, Respondent.
    No. C6-02-2117.
    Supreme Court of Minnesota.
    July 22, 2004.
    John B. Wolfe, Jr., Wolf & Associates, St. Paul, MN, Wilbur W. Fluegel, Minneapolis, MN, for Appellants.
    Mike Hatch, Attorney General, Steven M. Gunn, Assistant Attorney General, St. Paul, MN, for Respondent.
    William J. Wernz, Robin M. Wolpert, Minneapolis, MN, Teresa J. Nelson, St. Paul, MN, for Amicus Curiae Minnesota Civil Liberties Union.
   OPINION

PAGE, Justice.

David Pietsch, D.C., seeks review of a decision of the court of appeals affirming the Minnesota Board of Chiropractic Examiners’ (the Board) disciplinary action against him based on the Board’s conclusion that he engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. l(a)(ll) and (e) (2002). We reverse and remand.

Pietsch, a Doctor of Chiropractic, owns and operates the Pietsch Chiropractic Clinic in St. Paul, Minnesota. Pietsch was first licensed to practice chiropractic in Minnesota in February 1998. At all times relevant to the Board’s disciplinary action, Pietsch’s practice consisted primarily of treating victims of motor vehicle accidents whose injury claims were covered by no-fault automobile insurance. A sizeable number of his patients were from the Hmong and Laotian communities.

In 1999, Pietsch contracted with Hue Xiong and Cha Xiong of Xiong Translation & Transportation Company (collectively, the Xiongs) to market his chiropractic services to the Hmong community. The Xiongs’ practice was to obtain publicly available accident reports from local police departments every morning. These reports were then used to identify accident victims by ethnic group so that one of Pietsch’s agents from the same ethnic group could call or visit the victims in order to solicit them to become patients at Pietsch’s clinic. The record indicates that Pietsch’s clinic paid Xiong Translation and Transportation $71,000 in 1999 and $95,000 in 2000.

Sometime before March 1, 2001, the Board received complaints alleging that Pietsch was engaged in improper fee splitting with the Xiongs. The Board’s authority includes the power to grant, deny, revoke, suspend, condition, limit, restrict, or qualify a license to practice chiropractic. See Minn.Stat. § 148.10. The Board’s complaint panel met with Pietsch on March 1, 2001, to discuss the fee splitting complaints. At that meeting, Pietsch denied paying a fee or commission for patient referrals. On March 8, 2001, the Board informed Pietsch by letter that, based on the facts before it, it had concluded that there was insufficient evidence to warrant pursuing the complaints further. Subsequent to the letter, the Board received additional evidence and, on March 21, 2002, the complaint panel issued a notice and order for hearing alleging that Pietsch engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. l(a)(16), and engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. l(a)(ll) and (e), by using “runners” or “cappers” to solicit people involved in automobile accidents, by instructing chiropractic interns how to falsify treatment bills and examination reports to defraud insurance companies, and by instructing interns that they could care for non-English-speaking-patients without communicating with them about their health or medical problems.

In response to the complaint panel’s request for admissions, Pietsch admitted paying the Xiongs to identify and contact Hmong accident victims for the purpose of soliciting them to become patients of his clinic. On the strength of these admissions, the complaint panel brought a motion for partial summary disposition on the issues of fee splitting and the use of “runners” or “cappers” to solicit patients. A hearing was held on the motion before an administrative law judge (ALJ) at the Office of Administrative Hearings. The ALJ found that the complaint panel “ha[d] established that [Pietsch] paid ‘runners’ to solicit business from accident victims * * * in violation of Minn.Stat. § 148.10, subd. l(a)(16),” and that in doing so Pietsch also engaged in unprofessional conduct. The ALJ concluded, however, that the complaint panel “failed to demonstrate that [Pietsch’s] conduct was per se unprofessional because the [Board] introduced no evidence to support a finding that [Pietsch’s] conduct violated standards of professional behavior established by the consensus of the expert opinion in the chiropractic community.” Ultimately, the ALJ recommended that the Board’s summary disposition motion be granted and that disciplinary action be taken against Pietsch’s chiropractic license.

The Board considered the ALJ’s recommendation at a hearing in October 2002 and, on November 5, 2002, the Board issued its findings of fact, conclusions, and final order. In its findings, the Board disagreed with the ALJ’s finding that Pietsch’s conduct was not unprofessional conduct per se, but otherwise adopted the ALJ’s findings in their entirety. The Board found that Pietsch’s conduct in using paid “runners” or “cappers” constituted fee splitting, in violation of Minn.Stat. § 148.10, subd. l(a)(16), and that fee splitting, as well as using “runners” or “cap-pers” to solicit clients, constituted unprofessional conduct, in violation of Minn.Stat. § 148.10, subd. l(a)(ll) and (e). In support of these findings, the Board noted that “the employment of runners and the use of fee splitting arrangements negatively affect the professional-patient/client relationship and are unethical, deceptive and harmful to the public.” The Board went on to say:

Fee splitting arrangements with runners can influence the type of treatment a chiropractor provides to a patient and can encourage patients to exaggerate or invent injuries. Obtaining patients by employing runners to follow up on daily police accident reports preys on people when they are most vulnerable. These patients are not given an opportunity to carefully consider and choose among health care options. They are, in fact, pressured into choosing the runner’s employer for their health care. Furthermore, [Pietsch] admits that he targeted clients from the Hmong/Southeast Asian communities. These people may have language and cultural barriers which make [Pietsch’s] behavior even more egregious.

Based on its findings and conclusions, the Board suspended Pietsch’s chiropractic license for three years, assessed a $30,000 civil penalty, and set out a number of conditions Pietsch was required to meet before he could be reinstated.

Pietsch appealed to the court of appeals, raising the following issues: (1) whether the Board erred as a matter of law in ruling that the use of paid runners to solicit patients constituted fee splitting when fees obtained were not split with the runners; and (2) whether the Board erred as a matter of law in ruling that the use of paid runners to solicit patients constituted unprofessional conduct.

The court of appeals reversed the Board’s determination with respect to fee splitting and affirmed with respect to unprofessional conduct. The court unanimously held that the Board’s conclusion that Pietsch engaged in fee splitting was not supported by substantial evidence. Pietsch v. Minnesota Bd. of Chiropractic Exam’rs, 662 N.W.2d 917, 922 (Minn.App. 2003). Specifically, the court held that, because the Xiongs were salaried employees and there was no evidence to suggest Pietsch split fees with them on a per-patient referral basis, there was no violation of Minn.Stat. § 148.10, subd. l(a)(16). Id. at 921. As for the charge of unprofessional conduct, by panel majority, the court of appeals held that there was substantial evidence to conclude that Pietsch’s use of runners to solicit patients was unethical, deceptive, and harmful to the public as well as the chiropractic profession. Id. at 924. The dissenting judge would have held that the unprofessional conduct statute was unconstitutionally vague as applied because the statute does not expressly prohibit paying “runners” a flat salary to solicit patients or otherwise inform chiropractors that such conduct is prohibited. Id. at 925-26 (Forsberg, J., dissenting).

I.

Summary disposition is the administrative equivalent of summary judgment. See Minn. R. 1400.5500(E) (2003). Review of a summary judgment award consists of determining whether there are any genuine issues of material fact and whether there was an error in applying the law to the facts. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). When summary judgment is granted after applying the law to undisputed facts, the legal conclusion is reviewed de novo. Leflo v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory interpretation is a question of law subject to de novo review. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001).

In his petition for review to this court, Pietsch raised one issue: Whether application of Minn.Stat. § 148.10, subd. l(a)(ll) and (e), violated his right to due process in that the term “unprofessional conduct” is unduly vague. In his brief to this court, Pietsch argues that his conduct did not constitute unprofessional conduct as defined by Minn.Stat. § 148.10, subd. l(a)(ll) and (e). Pietsch also argues that there was no support for the statement in the court of appeals’ opinion that the “board determined that relator engaged in unprofessional conduct by paying runners to solicit accident victims, regardless of whether relator’s conduct constituted unlawful fee splitting.” He contends, therefore, that it was error for the court of appeals to have based its decision on illegal solicitation, a ground not relied on by the Board. Finally, in his reply brief, Pietsch joins in the issue first raised by amicus Minnesota Civil Liberties Union in its brief to this court that section 148’s unprofessional conduct provision restricts constitutionally protected commercial speech. The Board has not challenged the court of appeals’ holding that Pietsch’s conduct did not constitute fee splitting.

We begin by analyzing the statutory language at issue. Minnesota Statutes § 148.10, subdivision 1, provides, in relevant part:

(a) The state board of chiropractic examiners may refuse to grant, or may revoke, suspend, condition, limit, restrict or qualify a license to practice chiropractic, or may cause the name of a person licensed to be removed from the records in the office of the court administrator of the district court for:
(11) Unprofessional conduct.
(e) For the purposes of paragraph (a), clause (11), unprofessional conduct means any unethical, deceptive or deleterious conduct or practice harmful to the public, any departure from or the failure to conform to the minimal standards of acceptable chiropractic practice, or a willful or careless disregard for the health, welfare or safety of patients, in any of which cases proof of actual injury need not be established. Unprofessional conduct shall include, but not be limited to, the following acts of a chiropractor:
(1) gross ignorance of, or incompetence in, the practice of chiropractic;
(2) engaging in conduct with a patient that is sexual or may reasonably be interpreted by the patient as sexual, or in any verbal behavior that is seductive or sexually demeaning to a patient;
(3) performing unnecessary services;
(4) charging a patient an unconscionable fee or charging for services not rendered;
(5) directly or indirectly engaging in threatening, dishonest, or misleading fee collection techniques;
(6) perpetrating fraud upon patients, third-party payors, or others, relating to the practice of chiropractic, including violations of the Medicare or Medicaid laws or state medical assistance laws;
(7) advertising that the licensee will accept for services rendered assigned payments from any third-party payer as payment in full, if the effect is to give the impression of eliminating the need of payment by the patient of any required deductible or copayment applicable in the patient’s health benefit plan; or advertising a fee or charge for a service or treatment different from the fee or charge the licensee submits to the third-party payer for that service or treatment. As used in this clause, “advertise” means solicitation by the licensee by means of handbills, posters, circulars, motion pictures, radio, newspapers, television, or in any other manner. In addition to the board’s power to punish for violations of this clause, violation of this clause is also a misdemeanor;
(8) accepting for services rendered assigned payments from any third-party payer as payment in full, if the effect is to eliminate the need of payment by the patient of any required deductible or copayment applicable in the patient’s health benefit plan, except as hereinafter provided; or collecting a fee or charge for a service or treatment different from the fee or charge the licensee submits to a third-party payer for that service or treatment, except as hereinafter provided. This clause is intended to prohibit offerings to the public of the above listed practices and those actual practices as well, except that in instances where the intent is not to collect an excessive remuneration from the third-party payer but rather to provide services at a reduced rate to a patient unable to afford the deductible or copayment, the services may be performed for a lesser charge or fee. The burden of proof for establishing that this is the case shall be on the licensee; and (9) any other act that the board by rule may define.

(Emphasis added.)

Applying the statute, the Board concluded that using “runners” or “cappers” to solicit patients “negatively affect[ed] the professional-patient/client relationship and [was] unethical, deceptive, and harmful to the public” and, therefore, constituted unprofessional conduct. In support of its conclusion, the Board found that: (1) the Xiongs provided accident victim solicitation for Pietsch through an entity known as Xiong Translation & Transportation and Pietsch’s clinic paid Xiong Translation & Transportation $71,000 in 1999 and $95,000 in 2000; and (2) Pietsch instructed the Xiongs to obtain police reports in the early morning and to identify accident victims by ethnicity so that one of his agents of the same ethnic group could contact the victim as soon as possible. The Board further found:

Fee splitting arrangements with runners can influence the type of treatment a chiropractor provides to a patient and can encourage patients to exaggerate or invent injuries. Obtaining patients by employing runners to follow up on daily police accident reports preys on people when they are most vulnerable. These patients are not given an opportunity to carefully consider and choose among health care options. They are, in fact, pressured into choosing the runner’s employer for their health care.

Given these findings and conclusions, it appears that the Board was treating the use of “runners” or “cappers” to obtain business as unprofessional conduct per se.

Section 148.10, subdivision 1(e), states that unprofessional conduct includes “any unethical, deceptive or deleterious conduct or practice harmful to the public.” It does not, however, specifically make the use of “runners” or “cappers” to obtain business unprofessional conduct per se. In the absence of statutory language, an industry standard clearly recognizing the use of “runners” or “cappers” to obtain business as unprofessional may be enough to find Pietsch’s conduct per se unprofessional. Here, however, there is no evidence in the record of an industry standard indicating that the use of “runners” or “cappers” to solicit patients is per se unprofessional. Accordingly, we conclude that Pietsch’s conduct does not constitute unprofessional conduct per se.

Having concluded that Pietsch’s conduct does not constitute unprofessional conduct per se, we must determine whether the record supports the conclusion that Pietsch’s conduct “negatively affeet[ed] the professional-patient/client relationship and [was] unethical, deceptive and harmful to the public.” A careful review of the record before us leads us to conclude that it does not. Indeed, the record is silent with respect to the names of those contacted, the nature and extent of the injuries at the time of the contact, and what specifically took place with each contact. The record does not indicate: (1) what was said by the Xiongs when they contacted accident victims; (2) whether the Xiongs pressured the accident victims; (3) the susceptibility of particular accident victims to the particular pressure, if any, applied by the Xiongs; (4) whether the accident victims had the opportunity to reflect on the decision to obtain treatment; (5) whether any of the accident victims found the Xiongs’ solicitations objectionable; and (6) whether fraud was employed in the course of the solicitation. The record presented simply does not support the conclusion reached by the Board.

Because a chiropractor’s use of “runners” or “cappers” to solicit business is not unprofessional conduct per se and because there is no evidence, beyond mere assertions, in the record to support a conclusion that Pietsch’s conduct was “unethical, deceptive and harmful to the public,” we conclude that the Board improperly granted the summary disposition. We therefore reverse the court of appeals’ decision and remand for further proceedings.

Reversed and remanded.

      . A "runner” is “a person whose business it is to solicit patronage or trade.” The Random House Dictionary of the English Language 1683 (2d ed.1987). A "capper” is "a lure, decoy, or steerer esp. in some illicit or questionable activity.” Webster’s Third New International Dictionary 333 (10th ed.1993).

      . Summary disposition is the administrative equivalent of summary judgment. See Minn. R. 1400.5500(K) (2003).

      . The complaint panel did not seek summary disposition with respect to the unprofessional conduct allegations related to instructing interns how to defraud insurance companies, falsifying treatment bills and examination reports, and failure to properly communicate with non-English-speaking patients. Therefore, there are no issues relating to those allegations before the court in this appeal. that there is no merit to Pietsch’s contention that the court of appeals erred on that basis.

      . Pietsch's argument that the court of appeals erred by affirming on a ground that the Board did not rely on is undermined by the following language in the Board's order:
      The Board finds that the employment of runners and the use of fee splitting arrangements negatively affect the professional-patient/client relationship and are unethical, deceptive and harmful to the public. ⅜ * * Obtaining patients by employing runners to follow up on daily police accident reports preys on people when they are most vulnerable.

      (Emphasis added.) Because it is clear that the Board considered Pietsch’s use of runners to solicit patients a separate violation of the unprofessional conduct statute, we conclude

      . While the arguments come to us in the context of using "runners” or “cappers,” the real question is whether in-person solicitation is permissible irrespective of whether Pietsch used "runners” or "cappers,” or whether Pietsch engaged in solicitation himself.

      . An example of a statute that specifically designates the use of "cappers” to obtain business as unprofessional conduct per se is Minn.Stat. § 148.57 (2002), which governs the licensing of optometrists. The pertinent language of Minn.Stat. § 148.57, subd. 3 (2002), reads:
      The board may revoke the license or suspend or restrict the right to practice of any person who has been convicted of any violation of sections 148.52 to 148.62 or of any other criminal offense, or who violates any provision of sections 148.571 to 148.576 or who is found by the board to be incompetent or guilty of unprofessional conduct. "Unprofessional conduct” means any conduct of a character likely to deceive or defraud the public, including * ⅜ ⅜ the employment of "cappers” or "steerers” to obtain business.

      (Emphasis added.)

      . Minnesota Statutes § 609.612 (2002), which was passed after the Board initiated its disciplinary action against Pietsch, makes it a felony to "employ[ ], use[], or act[] as a runner, capper, or steerer.” The statute defines a "runner,” "capper,” or "steerer” as “a person who for pecuniary gain procures patients or clients at the direction of, or in cooperation with, a health care provider when the person knows * ⅜ * that the provider's purpose is to fraudulently perform or obtain services or benefits under or relating to a contract of motor vehicle insurance.” Minn.Stat. § 609.612, subd. 1(c) (2002). Under this statute, using "runners" is illegal only when the "runners” are engaged in fraud. This statutory language indicates that the legislature did not consider the non-fraudulent use of "runners” as conduct in need of proscription.

      . Because we are able to resolve this case on non-constitutional grounds, we have no need and therefore decline to address Pietsch's due process and free speech claims. See In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn. 1998) ("It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise.”).


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Houa V. LEE, Appellant.
    No. C8-02-2278.
    Supreme Court of Minnesota.
    July 22, 2004.

      Rochelle R. Winn, Theodora K. Gaitas, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Thomas R. Ragatz, Asst. Atty. Gen., Minnesota Attorney General’s Office, St. Paul, MN, Kari A. Lindstrom, Washington County Attorney’s Office, Stillwater, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Houa Vang Lee was convicted following a jury trial of receiving stolen property for the benefit of a gang, fifth-degree controlled substance crime and possession of a firearm with an altered serial number. On appeal, Lee asserts that the omission of the jury instruction regarding accomplice testimony was reversible error. The court of appeals affirmed Lee’s convictions. Concluding that the omission of the jury instruction regarding accomplice testimony was error, but not prejudicial error requiring a new trial, we affirm.

On December 31, 2001, law enforcement officers responded to gang-related drive-by shootings in St. Paul and Brooklyn Center, Minnesota. At approximately the same time, appellant Lee was hosting a party at his townhome in Woodbury, Minnesota. Lee allowed his cousin Mai Yang, acquaintance James Her and two of their friends from Milwaukee, all members of the Imperial Gangsters gang, to stay the night. Yang, Her and the others awoke early the next morning, returned to the Milwaukee area and were subsequently arrested for unrelated offenses. While in custody, Her told the police that he had information about the drive-by shootings that took place in the Twin Cities on New Year’s Eve. This information was relayed to law enforcement in St. Paul.

On January 8, 2002, Special Investigator Mark Reding from the St. Paul Police Department and Investigator John Hankes from the Minnesota Gang Strike Force interviewed Her in Port Washington, Wisconsin where Her was being held in connection with a burglary in that jurisdiction. Her told the investigators that he and other members of the Imperial Gangsters had stolen firearms in the Wisconsin area, that they transported the firearms to the Twin Cities, that some of the firearms were used in drive-by shootings in the Twin Cities and that the firearms were located in Lee’s garage. Her told the investigators that Lee’s role was that of the “shot caller.”

On January 9, 2002, at around 7 p.m., law enforcement officers executed a search warrant at Lee’s home and found several firearms, ammunition and a baggie of marijuana in the garage. Through contacts with investigators in Wisconsin and a computer records check, law enforcement determined that two of the firearms, a Remington bolt-action rifle and a Ruger 9-mm handgun, had been stolen in a residential burglary near Sullivan, Wisconsin on December 7, 2001. The handgun was found in a day planner with mail addressed to Mai Yang. A third firearm, a bolt-action long rifle, had the serial number scratched off.

Lee was charged by complaint with receiving stolen property, Minn.Stat. § 609.53, subd. 1 (2002); receiving stolen property for the benefit of a gang, Minn. Stat. §§ 609.53, subd. 1, 609.229, subd. 2 (2002); fifth-degree controlled substance crime, Minn.Stat. § 152.025, subd. 2(1) (2002); and possession of a firearm with altered identification, Minn.Stat. § 609.667(2) (2002). The state obtained an order requiring Her to testify by granting him use immunity. At the time of Lee’s trial, burglary charges against Her were pending in Wisconsin.

At Lee’s trial, Her testified that he was a member of the Imperial Gangsters, a gang whose members were located in Minnesota, Wisconsin, and North Carolina. Her stated the Imperial Gangsters had “a lot” of members, meaning more than ten. He indicated that the gang had signs and symbols. Her also admitted to having been convicted for aggravated battery and armed robbery, gang-related crimes. He testified that the Imperial Gangsters had “a lot” of rivalries, including the Purple Brothers.

Her testified that he and three others had committed the December 7, 2001 burglary to obtain firearms for the gang. He admitted committing burglaries in about ten other counties as well. According to Her, he and other gang members started committing burglaries in November 2001 because Lee wanted “firearms for the family or for the nation.” They were so successful that when Lee heard about it, he told them to bring the firearms to the Twin Cities because there were more problems with gang action in Minnesota than in Milwaukee. Consequently, Her, Mai Yang and other gang members brought the stolen firearms with them as they traveled to the Twin Cities to celebrate the coming New Year. Some of the stolen firearms were stored in Lee’s garage.

Her testified that they spent the first night in a motel and then stayed at Lee’s house over the rest of the weekend. On December 31, 2001, Her and other gang members went to the Metrodome for a New Year’s celebration where a fight erupted with a rival gang. When they returned to Lee’s house, there was a party in progress. According to Her, people were drinking and using marijuana but Lee was using “[j]ust alcohol.” Her testified that during the evening, the Imperial Gangsters committed two drive-by shootings in retaliation for the fight that occurred at the Metrodome. During the first drive-by shooting, Her drove his vehicle. Her did not participate in the second drive-by shooting. According to Her, Lee did not participate in either incident; but Lee was in the garage when they were reloading. Lee also “kind of’ told them to “take care” of the second house and asked Her to let another gang member use Her’s car for the second drive-by shooting. Early the following morning, Her and the other gang members left Lee’s residence and traveled to the Milwaukee area where they were arrested for unrelated offenses.

In addition to Her’s testimony, the state offered the testimony of one of the investigating officers who described the execution of the search warrant at Lee’s residence and the means by which they connected some of the firearms found in Lee’s garage to the December 7, 2001 burglary near Sullivan, Wisconsin. The victim of the Wisconsin burglary also testified and identified two of the firearms found in Lee’s garage as having been stolen from his residence. The state also called an expert on criminal street gangs who testified about gangs in general and the Imperial Gangsters in particular. This expert identified Lee as an active member of the Imperial Gangsters.

Lee testified that at the time he was arrested, he was living with his wife and three small children in their Woodbury townhome. He was a full-time student and had two part-time jobs. Lee admitted that he had been a member of the Imperial Gangsters, but explained that when he was convicted of intimidation in the mkN1990’s, he decided to quit the gang. Lee acknowledged that he continued to socialize with gang members, but explained that he did so because they were relatives. Lee testified that Her had asked Lee to rejoin the gang but that Lee declined, having turned his life around.

Lee denied knowledge of the presence of stolen firearms in his garage. He claimed that he allowed his cousin, Mai Yang, to store some of his belongings in Lee’s garage because they were “so closely related.” Lee also claimed that Yang knew that Lee “was married and [had] three children,” and Lee did not think Yang would put Lee’s life “in jeopardy like that.” He further testified that when Yang brought his belongings to Lee’s house, “it wasn’t visible” to Lee that there were guns because he saw only clothes, blankets, a towel, a pillow, a backpack and books. He claimed he did not “see any physical features such as guns.”

Lee testified that he allowed Yang, Her and their friends to stay at his townhome because they apparently had no money for a motel and Lee’s wife was spending the New Year’s Eve weekend elsewhere. Lee had a New Year’s Eve party with some friends from school. Lee allowed Yang, Her and their friends to attend the party, but because they “were presented as a gang,” Lee’s guests “were intimidated.” Not wanting them to scare his other guests, Lee instructed the gang members to stay in the kitchen. Lee claimed that he had to stop arguments between Yang and Her several times throughout the night and that he could smell marijuana on them. According to Lee, around 7:30 p.m. Her and some of his friends “disappeared,” presumably exiting through the garage, and returned around 10 p.m. Shortly after that, Lee gave Yang $40 for beer and asked Her to let Yang use Her’s car because Lee’s car was blocked in the garage by his guests’ cars. Yang then left in Her’s car while Her stayed behind. Yang returned with more beer around 11:30 p.m. Lee testified that he asked Yang where the beer came from because it was Sunday, and Yang said he “crossed over to Wisconsin.” After “counting down” to the New Year, Lee’s school Mends left. Because Yang, Her and their friends were drunk, Lee let them spend the night, telling them to leave as soon as possible because he had promised his wife that he would not have gang contact. They were gone by the time Lee awoke the following morning.

The jury found Lee guilty as charged. The district court sentenced Lee to an executed 27-month prison term for receiving stolen property for the benefit of a gang and concurrent terms of 13 months for the controlled substance crime and one year and one day for the firearm offense. Lee appealed, asserting inter alia, reversible error in the omission of a jury instruction regarding accomplice testimony. The court of appeals affirmed, concluding that Her was not an accomplice, and we granted further review.

I.

A defendant may not be convicted based solely on the uncorroborated testimony of an accomplice. Minn.Stat. § 634-.04 (2002); see also State v. Ford, 539 N.W.2d 214, 225 (Minn.1995) (stating that “a criminal conviction may not be based upon the testimony of an accomplice unless it is corroborated by other evidence that tends to convict the defendant of the offense.”). The general test for determining “whether a witness is an accomplice for purposes of section 634.04 is whether he could have been indicted and convicted for the crime with which the accused is charged.” State v. Henderson, 620 N.W.2d 688, 701 (Minn.2001) (citing State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975)). If the facts of the case are undisputed and there is only one inference to be drawn as to whether the witness is an accomplice, the court should make the determination; but “if the evidence is disputed or susceptible to different interpretations, then the question whether the witness is an accomplice is one of fact for the jury.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn.1995).

In early law, the receiver of stolen property was “regarded as a party to the underlying larceny as an accessory after the fact.” 3 Charles E. Torcía, Wharton’s Criminal Law § 439 (15th ed.1995). Accordingly, the traditional rule was that a thief was not an accomplice of the receiver of the stolen property. See State v. Rosenberg, 155 Minn. 37, 41,192 N.W. 194, 195 (1923) (thieves were not accomplices with the party who feloniously received the goods); State v. Gordon, 105 Minn. 217, 219, 117 N.W. 483, 484 (1908) (same). And a person who feloniously received stolen goods was not an accomplice to the thief unless such individual was independently an accessory before the fact. See State v. Jensen, 289 Minn. 444, 448, 184 N.W.2d 813, 816 (1971) (holding that accomplice jury instruction reasonably informed jury of the critical distinction between being actors in a burglary and accessories after the fact); see also Trovato v. State, 36 Md.App. 183, 373 A.2d 78, 80 (1977) (receiver of stolen goods is not an accomplice of the thief unless the receiver is independently an accessory before the fact). Minnesota Statutes § 609.05 (2002) makes accessories before the fact liable as principals. State v. Grilli, 304 Minn. 80, 84, 230 N.W.2d 445, 449-50 (1975) (“If a person’s conduct qualifies under [Minn.Stat. § 609.05], he is accused as a principal to the crime even though in common-law parlance, his conduct is that of an accessory”).

Over the years, the words used by the Minnesota legislature to describe the conduct proscribed in the theft and receiving stolen property statutes evolved, overlapping sufficiently so that in a prosecution for receiving stolen property, it is no defense that the defendant was the thief. State v. Lawrence, 312 N.W.2d 251, 252 (Minn.1981). The state has the discretion to charge a person with the offense which is best supported by the available evidence and which carries a penalty commensurate with the culpable acts involved. State v. Jones, 289 Minn. 22, 23-24, 183 N.W.2d 282, 283 (1970). But a person may not be convicted of both theft and receiving stolen property with respect to property involved in the same transaction. Lawrence, 312 N.W.2d at 252; see also Minn. Stat. § 609.04, subd. 1 (2002).

Here, under the state’s theory of the case and the evidence presented, at Lee’s direction, Her transferred stolen firearms from Milwaukee to the garage of Lee’s townhome for the benefit of a gang, activity that falls within the conduct prohibited as receiving stolen property. Both Lee and Her could have been charged and convicted of receiving stolen property in violation of Minn.Stat. §§ 609.53 and 609.05. See Jones, 289 Minn, at 23, 183 N.W.2d at 283; see also State v. Bishir, 291 Minn. 459, 460, 192 N.W.2d 815, 816 (1971). Because Her and Lee could have been charged and convicted with the same crime, Her was an accomplice to Lee.

II.

An accomplice instruction “must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.” State v. Shoop, 441 N.W.2d 475, 479 (1989). The basis for this rule is that the credibility of an accomplice is inherently untrustworthy. State v. LaJambe, 300 Minn. 539, 541, 219 N.W.2d 917, 919 (1974). The duty to instruct on accomplice testimony remains regardless of whether counsel for the defendant requests the instruction. State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002). Accordingly, because Her was an accomplice, the omission of the jury instruction regarding accomplice testimony was error. Id.

We evaluate the erroneous omission of a jury instruction under a harmless error analysis. Shoop, 441 N.W.2d at 480. If the erroneous omission of the instruction “might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached, defendant must be awarded a new trial.” Id. at 481. If, however, beyond a reasonable doubt “the omission did not have a significant impact on the verdict, reversal is not warranted.” Id.

Here, the testimony of Her was compelled under a grant of use immunity and not done pursuant to a promise of leniency. His testimony was straightforward, consistent and corroborated by other evidence. The state also introduced evidence that drive-by shootings took place on New Year’s Eve; that firearms found in Lee’s townhome garage had been stolen from a Wisconsin residence and that the serial numbers on one of the firearms in Lee’s garage had been altered. Lee testified that Her and his friends “presented as a gang”; that Her’s car was used by the gang twice that night; that he asked Her for Her’s car keys for the second excursion and that Her stayed behind. Lee testified that he was aware of marijuana use during his party; and he testified that his car was “blocked from getting out of the garage,” and that he gave his cousin permission to store belongings in the garage and allowed gang members into his garage when his wife was not home, thereby exercising dominion and control over the area in which the firearms and marijuana were found. In closing argument, the state focused on the evidence corroborating Her’s testimony, including that of Lee, as well as evidence independently connecting Lee to the offenses. Also, the district court’s general instructions on witness credibility alerted the jury to the potential for conflicting motivations behind certain testimony. Although the omission of the instruction on accomplice testimony was error, our independent review of the record compels the conclusion that beyond a reasonable doubt the omission did not have a significant impact on the verdict.

Affirmed.

      . Her thought December 31, 2001 was a Sunday. December 31, 2001, was a Monday.

      . Minnesota Statutes § 634.04 provides that:
      A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

      . Minnesota Statutes § 609.05 provides:
      Subdivision 1. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
      Subd. 2. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.
      Subd. 3. A person who intentionally aids, advises, hires, counsels, or conspires with or otherwise procures another to commit a crime and thereafter abandons that purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission is not liable if the crime is thereafter committed.
      Subd. 4. A person liable under this section may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act, or if the person is a juvenile who has not been found delinquent for the act.
      Subd. 5. For purposes of this section, a crime also includes an act committed by a juvenile that would be a crime if committed by an adult.

      . The theft statute, Minn.Stat. § 609.52, subd. 2 (2002), provides in relevant part:
      Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:
      (1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property.
      The receiving stolen property statute, Minn. Stat. § 609.53, subd. 1 (2002), provides in relevant part:
      Except as otherwise provided in section 609.526, any person who receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery, may be sentenced in accordance with the provisions of section 609.52, subdivision 3.

      . Contrary to the state’s assertion, Minn.Stat. § 609.05 does not create a separate and distinct crime. See State v. Britt, 279 Minn. 260, 264, 156 N.W.2d 261, 264 (1968) (stating "there is no such crime as 'criminal liability for a crime committed by another' ”).

      . The pattern accomplice testimony instruction provided in the Criminal Jury Instruction Guide 3.18, provides in part:
      You cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the crime. Such a person who could be charged for the same crime is called an accomplice.

      (If you find that (any person who has testified in this case) is a person who could be charged with the same crime as the defendant, you cannot find the defendant guilty of a crime on that testimony unless that testimony is corroborated.)
      10 Minn. Dist. Judges Assn, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.18 (4th ed.1999).

      .A person may constructively possess contraband jointly with another person. See Commissioner of Revenue v. Fort, 479 N.W.2d 43, 46 (Minn. 1992). To prove constructive possession, the state must prove that: (1) the police found the item in a place under the defendant's exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).

      . Our decision that the omission of an instruction on accomplice corroboration was harmless error "similarly reflects our rejection of defendant's contention that the evidence corroborating [Her's] testimony was insufficient.” See Shoop, 441 N.W.2d at 482.


author: WRIGHT, Judge. HUSPENI, Judge

text:
    STATE of Minnesota, Appellant, v. James BYRON, Respondent.
    No. A03-1166.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for appellant.
    Paul Engh, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WRIGHT, Judge.

Approximately four years after pleading guilty to third-degree controlled substance crime, respondent moved to withdraw his guilty plea, arguing that the district court’s failure to advise him of the immigration consequences of his guilty plea resulted in a manifest injustice. The district court granted respondent’s motion and sua sponte granted plea withdrawal due to violations of the Vienna Convention. The state challenges the procedural and substantive bases for plea withdrawal. We reverse.

FACTS

Respondent James Stanford Byron, an alien national from Trinidad and Tobago, received unconditional permanent resident status in October 1992. See generally 8 U.S.C. § 1255 (2000). On July 16, 1999, Byron was charged with two counts of third-degree controlled substance crime for marijuana sale and possession, respectively. See Minn.Stat. § 152.023, subds. 1, 2 (1998).

Pursuant to a plea agreement, Byron pleaded guilty to the possession count on August 11, 1999. He executed a four-page plea petition that provided in relevant part:

My attorney has told me and I understand that if I am not a citizen of the United States, conviction of a crime may result in deportation, exclusion from admission to the U.S.A., or denial of naturalization.

When the plea petition was submitted to the district court, Byron acknowledged that he understood the rights enumerated in the plea petition and stated that he wanted to waive those rights and enter a guilty plea. Byron then admitted possessing more than ten kilograms of marijuana.

Neither Byron nor his counsel raised any objections prior to the district court’s acceptance of the plea. The district court stayed imposition of the sentence and placed Byron on three years’ probation. After moving to modify his sentence, Byron was granted an early discharge from probation on December 20, 2000, and the felony conviction was reduced to a misdemeanor. See Minn.Stat. § 609.13, subd. 1(b) (2000).

In late February 2003, Byron traveled to Trinidad and Tobago. On March 8, 2003, when Byron sought re-entry to the United States as a returning resident alien via an immigration port of entry in Miami, federal immigration authorities arrested Byron as deportable and held him in custody. Byron then applied for “cancellation of removal” to prevent his deportation.

Federal immigration authorities relied on 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2000) to bar Byron’s re-entry. In relevant part, it provides that “any alien convicted of ... acts which constitute the essential elements of ... a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... is inadmissible.” .An inadmissible alien may prevent deportation by applying for “cancellation of removal” under 8 U.S.C. § 1229b(a) (2000), which provides:

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.

An “aggravated felony” is defined to include “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B) (2000) (emphasis added). These statutes were in effect when Byron entered his guilty plea in 1999. See Pub.L. No. 105-100, § 204(b) (1997 amendment to § 1229b(a)); Pub.L. No. 104-208, §§ 308(d)(1), 321(a) (1996 amendments to §§ 1101(a), 1182(a)(2)(A)®).

Following a hearing on April 25, 2003, an immigration judge held that Byron’s controlled substance conviction made him inadmissible. Based on the finding that Byron’s conviction of possession of a controlled substance was an aggravated felony, the immigration judge concluded that the Attorney General had no discretion to grant cancellation of removal. See 8 U.S.C. § 1229b(a).

On June 12, 2003, Byron moved to withdraw the guilty plea, arguing that, because he was not advised of the immigration consequences of his plea, it was not intelligently made. Plea withdrawal was required, Byron contended, to correct a “manifest injustice.” In addition to challenging the merits of Byron’s argument, the state argued that the motion was untimely. The state maintained that the delayed motion would unfairly prejudice the prosecution of the case because the drugs in the case “likely” had been destroyed. The state did not produce any proof of the drugs’ destruction.

Without ruling on the state’s procedural argument that the motion was untimely, the district court found that new immigration regulations made deportation a “definite and virtually automatic outcome” for resident aliens with felony drug convictions. The district court then held that, because Byron was not properly informed of the immigration consequences, his plea was not intelligently made and thus violated due process. On its own initiative, the district court also concluded that the right to due process was violated because Byron did not receive assistance of consul under the Vienna Convention on Consular Relations. On these grounds, the motion for withdrawal was granted. The state appeals.

ISSUES

I. Was respondent’s motion for plea withdrawal timely under Minn. R.Crim. P. 15.05, subd. 1?

II. Did the district court err in concluding that respondent’s guilty plea violated due process because he was not advised about the immigration consequences prior to entering the plea?

III.Did violations of the Vienna Convention on Consular Relations provide a basis for plea withdrawal?

ANALYSIS

I.

We review a district court’s decision to hear a motion for plea withdrawal for an abuse of discretion. Bolinger v. State, 647 N.W.2d 16, 20-21 (Minn.App. 2002). A motion for plea withdrawal may proceed after sentencing and shall be allowed “upon timely motion.” Minn. R.Crim. P. 15.05. There is no explicit time limit barring motions for a plea withdrawal, but the motion should be “made with due diligence, considering the nature of the allegations quoted therein.” James v. State, 674 N.W.2d 216, 219 (Minn.App.2004) (quoting Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968)), review granted (Minn. Apr. 20, 2004).

Several factors guide the determination of whether a motion for plea withdrawal is timely. One is the district court’s interest in preserving the finality of convictions. State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999). Another is the defendant’s diligence when seeking withdrawal. See Doughman v. State, 351 N.W.2d 671, 675 (Minn.App.1984), review denied (Minn. Oct. 16, 1984). A third factor is whether the delay causes undue prejudice to the state’s prosecution of the case. James, 674 N.W.2d at 220. It is the state’s burden to prove such undue prejudice. State v. Wukawitz, 662 N.W.2d 517, 527 (Minn.2003).

We are mindful of concerns about the finality of convictions, particularly where a motion for withdrawal follows complete ex-edition of the sentence. But Byron diligently moved forward with his motion shortly after serious immigration consequences arose as a result of his guilty plea. Most significantly, the state shoulders the burden of establishing that delay caused undue prejudice to its case. Here, the state’s speculative assertion as to the likelihood that the drugs were lost fails to meet its burden of proof. Thus, we conclude that the district court did not abuse its discretion in proceeding with Byron’s motion for withdrawal.

II.

We review a district court’s decision to grant plea withdrawal for an abuse of discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998). On questions of fact, if there is sufficient evidence to support the district court’s findings, they will not be disturbed. State v. Aviles-Alvarez, 561 N.W.2d 523, 525 (Minn.App.1997), review denied (Minn. June 11,1997). But we review de novo the district court’s rulings on legal issues. Meemken v. State, 662 N.W.2d 146, 148 (Minn.App.2003).

A district court “shall allow” withdrawal of a guilty plea when it is “necessary to correct a manifest injustice.” Minn. R.Crim. P. 15.05, subd. 1. A manifest injustice occurs if the plea does not comply with constitutional due process requirements that the plea be accurate, voluntary, and intelligent. State v. Rhodes, 675 N.W.2d 323, 326 (Minn.2004). The only issue here is whether the guilty plea was intelligently made. To be intelligently made, a guilty plea must be entered after a defendant has been informed of and understands the charges and direct consequences of a plea. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998).

In Alanis, which presented similar facts, the Minnesota Supreme Court defined direct consequences.

[D]irect consequences are those which flow definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed. Further, it makes sense that deportation is not a direct consequence of the guilty plea because deportation is neither definite, immediate, nor automatic. Before a resident alien ... can be deported, the INS must exercise its discretion to commence deportation proceedings and, prior to deportation, there are various administrative procedures which must be followed.

Id. at 578-79. Relying on this rule, we have held that indirect or collateral consequences include restraints on civil privileges such as driver’s licenses and firearms ownership. See State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999); State v. Rodriguez, 590 N.W.2d 823, 825 (Minn. App.1999), review denied (Minn. May 26, 1999).

The Minnesota Supreme Court revisited the definition of direct consequences in Kaiser v. State when considering whether sex offender registration was a direct consequence of conviction. 641 N.W.2d 900, 904 (Minn.2002). The Kaiser court conceded that registration was “definite, immediate and automatic because the offender is required to register immediately ... upon entering a guilty plea.” Id. But the supreme court held that direct consequences must also be punitive:

Consequences flowing from the plea that are not punishment serve a substantially different purpose than those that serve to punish, as they are civil and regulatory in nature and are imposed in the interest of public safety.... [They] serve to protect the public from a potentially dangerous class of persons and are collateral, not direct, consequences of the sentences imposed.

Id. at 905.

In support of its finding, the district court cited three recent amendments to the immigration regulations. Two of the amendments were not substantive, relating to the division of the now-defunct Immigration and Naturalization Service between the Department of Justice and the Department of Homeland Security. See Authority of the Department of Homeland Security, 68 Fed.Reg. 10,922, 10,922 (Mar. 6, 2003); Aliens and Nationality Reorganization of Regulations, 68 Fed.Reg. 9,824, 9,825 (Feb. 28, 2003). The other amendment constrained the attorney general’s discretion to grant deportation waivers. Waiver of Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.Reg. 78,675, 78,676 (Dec. 26, 2002) (to be codified at 8 C.F.R. § 212.7(d)). This waiver authority, which does not arise out of an application for cancellation of removal, is limited by statute to cases where the basis for deportation is an offense involving thirty grams or less of marijuana. 8 U.S.C. § 1182(h). Thus, not one of the cited regulations substantively affected Byron’s deportation proceedings. See id. §§ 1101(a)(43), 1182(a)(2)(A), 1229b(a).

The immigration laws at stake in Byron’s case have not changed since Alanis. Although the immigration judge ruled that Byron’s conviction of possession of a controlled substance, albeit not a drug trafficking offense, denies the Attorney General discretion to grant cancellation of removal, this ruling does not render Byron’s deportation a direct, punitive consequence of his guilty plea. Deportation still arises in a separate forum, is contingent upon action by federal immigration authorities, and does not flow immediately from a guilty plea. We, therefore, conclude that deportation, even under the circumstances here, remains a collateral consequence. Because due process does not require Byron to be informed of this consequence, his guilty plea was intelligently made. Moreover, the facts here do not support Byron’s contention that he was not advised of the immigration consequences of his guilty plea. In his plea petition, Byron was warned of the danger of deportation. We presume that, prior to entry of a guilty plea, defense counsel reviews the plea petition with the defendant and the defendant understands its terms. State v. Lopez, 379 N.W.2d 633, 638 (Minn.App.1986), review denied (Minn. Feb. 14, 1986). Accordingly, the district court abused its discretion by allowing withdrawal on grounds of manifest injustice.

III.

On appeal from a district court’s grant of postconviction relief, we review the district court’s findings for sufficient evidentiary support in the record, and we review its legal conclusions de novo. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). If a defendant fails to preserve an objection prior to entry of a guilty plea, we may find that the issue is waived and decline to consider it. See Blondheim v. State, 573 N.W.2d 368, 368 (Minn.1998); State v. Wallace, 545 N.W.2d 674, 676 (Minn.App.1996), review denied (Minn. May 21,1996).

Under Article 36 of the Vienna Convention, upon the arrest of a foreign national, authorities shall give notice to that person’s consulate and shall inform the arrestee of the right to consul. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77. To obtain a remedy for violation of the Vienna Convention, a defendant must first show that the violation resulted in actual prejudice. State v. Miranda, 622 N.W.2d 353, 356 (Minn.App.2001). Under these facts, the defendant must show that assistance of consul would have affected the outcome of the case. Id. at 356-57.

Byron did not assert that his rights were affected by lack of access to consul. Furthermore, the district court did not make any finding that violations of the Vienna Convention resulted in actual prejudice. In the absence of evidence of actual prejudice, we hold that the district court abused its discretion by granting Byron’s plea withdrawal motion on this ground.

DECISION

The district court did not abuse its discretion in considering respondent’s motion for plea withdrawal. As a matter of due process, Byron need not be advised of collateral immigration consequences prior to his plea. Accordingly, it was an abuse of discretion for the district court to grant the motion for plea withdrawal on grounds that the plea was not intelligently made. Because the district court did not find, nor is there evidence of, actual prejudice from violation of the Vienna Convention, the district court erred in granting plea withdrawal as a remedy on this basis.

Reversed.

HUSPENI, Judge

(concurring in part, dissenting in part).

I concur with the conclusion of the majority that Byron’s motion to withdraw his guilty plea was not time-barred. I also agree that the state did not meet its burden of showing prejudice.

If the district court had denied Byron’s motion to withdraw the plea, I expect that this court would have affirmed that denial as being within the sound and broad discretion of the district court. I believe an affirmance is warranted here also on that same basis, and respectfully dissent from that portion of the majority opinion that reverses the district court.

In granting the motion to withdraw, the district court expressed concern:

I’m very troubled by the result here where the purpose of a stay of imposition rather than a stay of execution is clearly if the person behaves well to have a misdemeanor on their record. And there were no collateral consequences during the time that this pled felony was, in fact, a felony. The consequences now are based upon what appears to be a new rule or new application of the law.

It seems to me that a reviewing court might not only recognize the validity of a district court’s expressed concerns, but might also grant deference to those concerns. I take little issue with the majority’s analysis of post-9/11 immigration law and procedure, and concur with the views expressed in the concluding paragraph of the majority opinion, regarding the draconian nature of Byron losing his adopted home. I also remain convinced that the district court here exercised its broad discretion in a manner that it believed would ensure the fair administration of justice. I can find no abuse of discretion in that exercise and would affirm.

      . The immigration judge relied on In re Ya-nez-Garcia, 23 I. & N.Dec. 390 (B.I.A.2002), to determine whether Byron's offense was an aggravated felony. In that case, the Board of Immigration Appeals adopted the federal circuits’ majority rule, holding that state law controls whether an offense is a felony. Id. at 398. It also held that a stayed sentence does not affect the classification of the underlying offense. Id. at 401. Although Byron’s conviction was reduced to a misdemeanor under state law, it is not a settled question whether federal immigration law will recognize this reclassification. Compare Alberto-Gonzalez v. I.N.S., 215 F.3d 906, 909-10 (9th Cir.2000) (determining classification according to the actual term of imprisonment), with Copeland v. Ashcroft, 246 F.Supp.2d 183, 187-88 & n. 5 (W.D.N.Y.2003) (determining classification according to whether offense was classifiable as a felony under federal law).

      . We are mindful of the district court's effort to avoid what may appear to be a harsh result. Although governing precedent precludes us from permitting plea withdrawal as a remedy here, we recognize that the Minnesota Supreme Court may elect to do so if the supreme court finds it necessary to ensure "the fair administration of justice.” Cf. Powell v. Anderson, 660 N.W.2d 107, 113 (Minn. 2003) (acknowledging its supervisory power to ensure the fair administration of justice); State v. Gilmartin, 535 N.W.2d 650, 653 (Minn.App.1995) (declining to exercise supervisory powers reserved for the Minnesota Supreme Court), review denied (Minn. Sept. 20, 1995).


author: TOUSSAINT, Chief Judge.

text:
    In re Bill KAYACHITH and Susan Kayachith, Petitioners In re the Custody of A.V.A., Bill and Susan Kayachith, Petitioners, v. Ratchaneewan and Vilaysack Athakhanh, Respondents, and Kaysone Athakhanh, Respondent.
    No. A04-424.
    Court of Appeals of Minnesota.
    July 20, 2004.
    Robert J. Milavetz, Barbara Nilva Nev-in, Joseph Anthony Rymanowski, Milavetz, Gallop & Milavetz, PA, Edina, MN, for petitioner.
    Susan Claire Rhode, Moss & Barnett, PA, Minneapolis, MN, for respondents Ratchaneewan Athakhanh and Vilaysack Athakhanh.
    Andrea K. Niemi, Niemi and Barr, Minneapolis, MN, for respondent Kaysone Athakhanh.
    Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and HARTEN, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

Melinda Athakhanh (mother) and Souvorachak Kayachith (father), and their child lived in the home of father’s parents since the child was born in April 2000. In March 2003, while driving to Georgia to visit mother’s family, mother and father were killed in a car accident. The child survived and continued to live with her paternal grandparents. The current dispute involves competing petitions for custody of the child filed by the child’s paternal grandparents and mother’s cousins, whose prior contact with the child at the time they petitioned for custody, was limited.

The district court “merged” the two custody files, awarded paternal grandparents temporary legal and physical custody of the child, ruled that cousins were “interested third parties” who could seek custody under Minnesota Statutes Chapter 257C, suspended discovery so that a court-appointed therapist could evaluate the child, and awarded cousins visitation with the child. This court then issued a writ of prohibition, ruling that cousins had not shown standing to seek custody of the child and preventing the district court from enforcing its visitation award to cousins. Cousins then sought to amend their custody petition, and grandparents opposed that amendment. Grandparents also sought appointment of a new therapist, and moved the district court judge to recuse himself from the case for bias. Requests for other relief were also made. After a hearing, the district court ruled from the bench that (a) he would not re-cuse; (b) cousins would be allowed to amend their petition; (c) grandparents’ motion for appointment of a new therapist was denied; and (d) the rulings would not be stayed pending grandparents’ petition to this court for extraordinary relief. Written orders followed the next day. Grandparents asked this court for a writ of prohibition to preclude (a) the district court judge from making further rulings in the case; (b) the district court from giving effect to cousins’ amended custody petition; and (c) the enforcement of orders allowing the therapist to facilitate visitation. By order, this court held that cousins lacked standing to seek custody of the child, otherwise denied relief, and stated that a special term opinion would follow, addressing the standing question.

Prohibition can issue if the district court exceeded its lawful authority or so abused its discretion as to cause an injury for which no ordinary remedy is adequate. Hancockr-Nelson Mercantile Co. v. Weisman, 340 N.W.2d 866, 868 (Minn.App.1983). Prohibition does not lie where an appeal provides an adequate remedy. Bellows v. Ericson, 233 Minn. 320, 325, 46 N.W.2d 654, 658 (1951).

In 2002, the legislature enacted Chapter 257C to address requests for custody and visitation made by certain nonparents. See 2002 Minn. Laws. Ch. 304, §§ 1-6, 13 (enacting Chapter 257C). Under Chapter 257C, custody may be awarded to “interested third parties,” among others. A nonparent’s petition for custody must “state and allege” a “basis for jurisdiction” by asserting that the petitioner is an “interested third party” or other person entitled to seek custody under the statute. Minn.Stat. § 257C.03, subd. 2(a)(5) (2002). An “[ijnterested third party” is a nonpar-ents, other than a de facto custodian, “who can prove at least one of the factors” in Minn.Stat. § 257C.03, subd. 7(a) (2002). Minn.Stat. § 257C.01, subd. 3(a). Under Minn.Stat. § 257C.03, subd. 7(a):

To establish that an individual is an interested third party, the individual must:
(1) show by clear and convincing evidence that one of the following factors exist:
(i) the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent;
(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or
(iii) other extraordinary circumstances; and
(2) prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party.

Here, the district court found cousins to be “interested third parties” because of “extraordinary circumstances.” While Chapter 257C does not define “extraordinary circumstances,” we conclude that because cousins have not alleged that they had a substantial relationship with the child when they petitioned for custody, and because they actually lack such a relationship with the child, their circumstances are not “extraordinary” for purposes of Chapter 257C. Therefore, they lack standing to seek custody as “interested third parties,” and the district court should have dismissed cousins’ petition for custody, and should not have granted cousins visitation pending a ruling on the merits of their petition. See Minn.Stat. § 257C.03, subd. 8(a)(2) (2002)(requiring dismissal of custody petition where petitioners cannot show themselves to be “interested third parties”); In re Improvement of County Ditch No. 86, Branch 1 v. Phillips, 625 N.W.2d 813, 817 (Minn.2001) (stating standing “is a prerequisite to a court’s exercise of jurisdiction”).

Chapter 257C presumes that a relationship exists between a petitioner seeking custody of a child and the child whose custody is being sought: In addition to alleging that a petitioner is an “interested third party” or other person able to seek custody under Chapter 257C, a petition for custody filed under Chapter 257C “must state and allege” both the “relationship of the petitioner to each child for whom custody is sought” and “the length of time each child has resided with the petitioner.” Minn.Stat. § 257C.03, subd. 2(a)(4), (8) (2002). Similarly, in addressing an “interested third party’s” petition, the district court “must” consider, among other things, “the amount of involvement the interested third party had with the child during the parent’s absence or during the child’s lifetime” and “whether a sibling of the child is already in the care of the interested third party.” Minn.Stat., § 257C.03, subd. 7(b)(1), (7). Thus, the portions of Chapter 257C applicable to cases involving “interested third parties” require a petition for custody to detail the existing relationship between the petitioner and the child, and contemplate both that the petitioner-child relationship may have existed for the entirety of the child’s life, and that the child’s siblings, as well as the child him or herself, may be living with the petitioner. For these reasons, whatever the precise definition of the “extraordinary circumstances” that qualify a person as an “interested third party,” at a minimum, those circumstances include a substantial relationship between the petitioner and the child that exists when the petitioner petitions for custody.

Reading “interested third party” to require an existing substantial relationship between a person alleging to be an “interested third party” and the child whose custody is sought, is consistent with the circumstances leading to the enactment of Chapter 257C. The prior statute addressing awards of custody and visitation to persons who were not parents of the child in question was Minn.Stat. § 518.156, subd. 1(b) (2000). The terms of that anomalous statute required nonparents seeking visitation to “qualify under one of the provisions of section 257.022 [ (2000) ]” identifying certain persons who could seek visitation, but put no limitation on who could seek custody of a child. Minn. Stat § 518.156, subd. 1(b) (2000). The same 2002 legislation enacting Chapter 257C with its child-centered limits on the non-parents who can petition for custody and visitation, repealed Minn.Stat. § 518.156, subd. 1(b) (2000). 2002 Minn. Laws. Ch. 304, §§ 1-6, 8, 13. Thus, to read Chapter 257C as allowing persons with nonexistent or only nominal relationships with a child to petition for custody of that child would essentially be to judicially reenact the oddity that the legislature repealed and replaced with the narrower Chapter 257C. See Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953) (holding that court can consider other statutes on same subject to clarify statute’s meaning); Altenburg v. Bd. of Sup’rs of Pleasant Mound Tp., 615 N.W.2d 874, 879 (Minn.App.2000) (stating that courts may look to prior versions of statute to determine meaning of statute) (citing Welscher v. Myhre, 231 Minn. 33, 36, 42 N.W.2d 311, 313 (1950)), review denied (Minn. Nov. 21, 2000). This we decline to do.

Here, cousins’ limited interaction with the child before they petitioned for custody was insufficient to create the substantial relationship presumed by Chapter 257C. Additionally, to use the time grandparents allowed cousins to spend with the child after parent’s death to create standing for cousins to seek custody would be poor public policy: it will cause persons caring for children in similar situations to forbid third persons from having access to children in their care in order to avoid or limit custody disputes. Here, the combination of the district court’s suspension of discovery with its allowance of continued visitation between the child and cousins permits cousins to create, after they filed their petition for custody, the relationship that Chapter 257C requires them to have before they petitioned for custody. Absent the relationship with the child presumed by Chapter 257C, cousins lack standing to seek custody as an “interested third party.” And cousins’ lack of standing to seek custody precludes an award of temporary visitation. Therefore, prohibition is appropriate here.

Writ of prohibition granted.

      . We also note that in June 2000, a plurality of the United States Supreme Court described a Washington state visitation statute as “breathtakingly broad” because it allowed "any person” to petition for visitation with a child at "any time,” and allowed the court to grant visitation whenever the court believed it would serve "the best interests of the child.” Troxel v. Granville, 530 U.S. 57, 67, 120 S.Ct. 2054, 2061, 147 L.Ed.2d 49 (2000) (quoting Wash. Rev.Code § 26.10.160(3) (emphasis added by Troxel omitted)). They then stated that use of that statute to allow paternal grandparents to have visitation with children over the objections of the children's custodial mother violated the mother’s right to due process of law. Id. at 75, 120 S.Ct. at 2065. It was shortly thereafter that the Minnesota legislature repealed Minn.Stat. - § 518.156, subd. 1(b) and enacted Chapter 257C via 2002 Minn. Laws Ch. 304. For two reasons, we cannot conclude that the 2002 narrowing of the scope of the nonparents able to petition for custody achieved by Chapter 257C coincidentally followed the Troxel decision. First, to the extent that the Supreme Court's distress about the "breathtaking” breadth of Washington’s visitation statute involved concern about the lack of limitation on who could seek visitation, it is at least possible that a similar concern could have been expressed about the lack of limitation on who could seek custody under the arguably more "critical” custody provisions of Minn.Stat. § 518.156, subd. 1(b) (2000). See generally Olson v. Olson, 534 N.W.2d 547, 551 n. 5 (Minn. 1995) (recognizing that "the granting of grandparent visitation rights is, by its essential nature, a less critical decision than the judicial determination as to custody, especially where custody is disputed”). Second, the history of 2002 House File 2596, the companion to 2002 Senate File 2673 which became 2002 Minn. Laws Chapter 304, refers to a 2000 United States Supreme Court opinion. See House Floor Debate on H.F. 2596 (Mar. 19, 2002) (statement of witness Hanson); cf. Hoben v. City of Minneapolis, 324 N.W.2d 161, 162-63 (Minn. 1982) (noting that prompt legislative amendment of statute construed in prior court opinion indicated legislative action was a reaction to the prior opinion).