This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,


Sergey Mikhaylovich Selyukov,
Respondent  (C1-01-1656),
Defendant  (C5-01-1658),
Elvira (NMN) Zderchuk,
Defendant  (C1-01-1656)
Respondent  (C5-01-1658).


Filed March 5, 2002

Reversed and remanded

Stoneburner, Judge


Anoka County District Court

File No. K8994774


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Seventh Floor, 2100 Third Avenue, Anoka, MN 55303 (for appellant)


Steven J. Meshbesher, Meshbesher & Associates, 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondents)



            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N



The state argues that the district court inappropriately continued charges against respondents for dismissal over the prosecutor’s objections.  Because there are no special circumstances involving abuse of prosecutorial discretion in charging respondents, we reverse and remand for trial. 



Respondents, who were admitted to the United States as refugees,[1] are charged with aiding and abetting theft by false representation in excess of $35,000 in violation of Minn. Stat. § 609.52, subds. 2(3)(i) and 3(1) (Supp. 1999), and aiding and abetting theft by swindle in excess of $35,000 in violation of Minn. Stat. § 609.52, subds. 2(4) and 3(l) (Supp. 1999).  Although they have not been tried and have not entered guilty pleas, respondents have admitted obtaining $99,000 from the Sheet Metal Worker’s Credit Union in Fridley.  

On the day that they were scheduled to be tried, the district court, over the prosecutor’s objection, continued the charges for dismissal, citing full payment of restitution, respondents’ remorse, lack of criminal history, family circumstance, age, and amenability to probation as “special circumstances” justifying that disposition.  The state appealed and this court reversed, holding that none of the factors listed by the district court qualified as “special circumstances” and that there was no evidence that the prosecution had abused its charging discretion.  State v. Selyukov, Nos. C5-00-1617, C9-00-1619, 2001 WL 96180 (Minn. App. Feb. 6, 2001), review denied (Minn. Apr. 17, 2001).  We noted that the district court had not listed deportation consequences of conviction as a special circumstance and attributed that omission to the district court’s presumed awareness of case law holding that deportation could not be deemed a special circumstance.

            On remand, the district court once again continued the charges for dismissal over the prosecutor’s objection.  The district court acknowledged that there is no abuse of the prosecutor’s charging discretion in this case but concluded that because respondent’s alien status makes deportation “virtually automatic” and because respondents “would be forced to return to countries torn by war, religious persecution and ethnic persecution,” recording respondents’ convictions would make the district court “an accessory to these atrocities.”  Invoking the court’s “inherent power to grant a continuance for dismissal where ‘special circumstances’ exist and [when] it is necessary to the ‘furtherance of justice,’” the court held that the “immigration considerations present in these cases constitute the ‘special circumstances’ necessary to justify alternative disposition.”  The state appeals.



Inherent powers of a court are “those powers which, though neither granted to, nor withheld from them by the state constitution and not found in any other source of law, must nonetheless be conceded to the judiciary as a separate department of government because their exercise is deemed absolutely essential for the performance of the court’s constitutionally mandated mission.”  Felix F. Stumpf, Inherent Powers of the Courts Sword and Shield of the Judiciary 5 (1994) (quoting Winters v. City of Oklahoma City, 740 P.2d 724, 728 n. 1 (Okla. 1987)(Opala, J., concurring and dissenting in part)).  Because case law in Minnesota clearly controls the district court’s authority to stay adjudication or continue charges for dismissal over the prosecutor’s objection, the issue is discussed in terms of caselaw, not the court’s inherent power.

A district court may stay adjudication[2] of a criminal conviction over the prosecutor’s objection without violating the separation-of-powers doctrine in cases involving special circumstances where such disposition is necessary to the furtherance of justice.  State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996).  The special circumstances justifying such disposition must, however, involve an abuse of prosecutorial discretion in charging.  State v.  Foss, 556 N.W.2d 540, 541 (Minn. 1996) (stating that it was supreme court’s intention that inherent judicial authority recognized in Krotzer be relied on sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function); State v. Leming, 617 N.W.2d 587, 589 (Minn. App. 2000) (holding that a court may stay adjudication only when special circumstances show a clear abuse of discretion by the prosecutor in the exercise of the charging function); State v. Prabhudail, 602 N.W.2d 413, 414 (Minn. App. 1999) (citing Krotzer and Foss in holding that in absence of prosecutorial abuse of discretion, possible deportation consequences are not special circumstances justifying continuance for dismissal), review denied (Minn, Jan. 18, 2000). 

            Respondents argue that there was an abuse of the prosecutor’s charging discretion in this case because the prosecutor “continued to charge the defendants knowing the harsh consequences that would result.”  We disagree.  The district court found, and respondents do not dispute, that the charges brought by the prosecutor were appropriate for the conduct alleged.  Under these facts, the district court correctly concluded that there has been no abuse of the prosecutor’s charging discretion.  Because controlling case law clearly establishes that special circumstances justifying continuance for dismissal over the objection of the prosecutor must involve an abuse of the prosecutor’s charging discretion, the district court inappropriately continued the charges for dismissal in this case.

            Respondents and the district court argue that deportation consequences are disproportionately harsh in these cases, relying on Krotzer, which affirmed a stay of adjudication where there was no abuse of prosecutorial discretion.  See Krotzer, 548 N.W.2d at 254-55.  The supreme court clearly modified and narrowed the holding of Krotzer in Foss to require that the district court can only stay adjudication or continue for dismissal over the prosecutor’s objection where the prosecution has clearly abused its charging discretion.  Foss, 556 N.W.2dat 541.  Furthermore, the circumstances in this case are distinguishable from the circumstances in Krotzer, because Krotzer’s registration as a sexual predator was a direct consequence of conviction of criminal sexual conduct.  548 N.W.2d at 253 n.1.  Arguably, neither the purposes of criminal law nor sexual-predator-registration law would have been served by the conviction and registration of Krotzer, who had consensual sex with another teenager in the context of an ongoing relationship approved of by the victim’s mother.  See id.  Likewise, the crimes involved in this case are far different from a $10 offer to the undercover-police prostitute-look-alike that led the dissent in Prabhudail to argue the unjustness of deportation as a consequence for such acts.  602 N.W.2d at 415-20.  The instant case involves crimes found by the district court, in its order denying respondents’ omnibus motions to dismiss the charges because of the deportation consequences,[3] to have involved a sophisticated and substantial course of criminal activity, undercutting any persuasive value of the dissenting opinion in Prabhudail  this case.

When this court held, in Vahabi, that deportation consequences present special circumstances “well within the rationale of Krotzer,[4]the supreme court granted review and reversed, declining to consider deportation consequences “special circumstances” noting that deportation is an “unfortunate, indirect result of conviction.”  State v. Vahabi Nos. C7-95-1795, C9-95-1796, 1996 WL 940208, at *1 (Minn. Dec. 11, 1996).  The supreme court subsequently reiterated its holding that deportation is not a direct consequence of a guilty plea, in the context of determining the intelligence of a guilty plea.  Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (noting that deportation is not a direct consequence of guilty plea because deportation is neither definite, immediate, nor automatic).  We cited Alanis for the proposition that deportation is a collateral consequence of criminal conviction when we held in Prabhudail that “[a]bsent evidence of a prosecutor’s clear abuse of discretion in the charging function, deportation consequences are not special circumstances justifying a continuance for dismissal.”  State v. Prabhudail, 602 N.W.2d at 414-15.

It is undisputed that the charges in the instant cases fall squarely within the type of crimes for which the federal law prescribes deportation.  The parties agree that the crimes charged constitute aggravated felonies within the meaning of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 101(a)(43), 8 U.S.C. § 1101 (a)(43).  Pursuant to that act, an alien who has committed an aggravated felony is presumptively subject to special expedited-removal proceedings.  8 U.S.C § 1228 (1994 ed., Supp V (1999)).  But, as the state points out, respondents may still be eligible for discretionary relief from deportation afforded in the federal system, such as asylum.  See 8 U.S.C. § 1158 (providing guidelines for asylum).  And federal judicial review in the form of habeas corpus relief may also be available to respondents.  Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 2287 (2001) (holding that federal habeas corpus jurisdiction, under 28 USC § 2241, continues to exist after the 1996 act.).  Deportation consequences are not imposed as part of a state court sentence, and possible avenues of relief are afforded respondents in the federal system.  Nonetheless, the district court distinguished this case by implying that deportation is a direct consequence of conviction in state court, or, in the alternative, that the distinction between direct and collateral consequences is no longer a meaningful distinction.   We disagree.  Despite the fact that the Rules of Criminal Procedure have been changed since the decision in Alanis to now require that the district court inquire, prior to accepting a plea of guilty, whether a defendant has been told and understands the deportation consequences of a guilty plea,[5] Alanis has not been overruled and remains authoritative precedent.  The deportation consequences depend on the independent action of the federal authorities pursuant to a presumably valid federal law and federal procedures.  Any changes in federal deportation law, or interpretation of such law, must come from Congress or the federal courts.

In this case, the district court assumes that the federal government will initiate deportation, relief from deportation afforded in the federal system will not be granted, respondents will be required to return to the same regions in their country of origin from which they originally fled, and the conditions in those regions at the time of deportation will pose a danger of imminent harm to respondents.  The fact that the district court must assume so much highlights the collateral nature of the consequence. 

In the instant case, because the exercise of the prosecutorial function is not so unjust as to warrant perversion of standard disposition procedures, the deportation consequences here are not special circumstances within the rationale of Krotzer.  Any change in the current state law, to allow some or all non-citizen criminals to avoid prosecution or conviction, should come from the legislature or supreme court, with clear guidance to the lower courts delineating how to apply such a change. 

We reverse and remand for trial.  In the event respondents are found guilty, or enter pleas of guilty, sentencing shall be in accordance with standard procedures that do not include a stay of adjudication over the prosecutor’s objection. 

Reversed and remanded.


[1] A “refugee” includes a person who possesses a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  8 U.S.C. § 1101 (a)(42) (1994).

[2] We have stated that a continuance for dismissal and a stay of adjudication are functionally equivalent.  State v. Prabhudail, 602 N.W.2d 413, 414 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  We note, however that in this case respondents have not entered guilty pleas so that the case is not, as respondents argue, at the disposition phase.  The analysis of the propriety of a continuance for dismissal or stay of adjudication is nonetheless identical.

[3] The judge who presided at the omnibus hearing is not the same judge who continued the cases for dismissal.

[4] State v. Vahabi, Nos. C7-95-1795, C9-95-1796, 1996 WL 509690, at *2 (Minn. App.), review granted (Minn. Dec 11, 1996).

[5] Minn. R. Crim. P. 15.01(10)(c).