Dario Jothzan Abla-Salmeron, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1096

Dario Jothzan Abla-Salmeron, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 15, 2021
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CR-13-3514

Dario Jothzan Abla-Salmeron, Faribault, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, St. Paul, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges the district court’s denial of his p etition for postconviction
relief after being convicted of first-degree criminal sexual conduct, arguing that the district
court erred by finding that his petition was untimely. We affirm.

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FACTS
A jury found a ppellant, Dario Jothzan Abla -Salmeron, guilty of first -degree and
third-degree criminal sexual conduct in 2014. The jury concluded that appellant raped an
adult woman in May 2013; he forced her to have anal and vaginal intercourse on the side
of a road in St. Paul. See State v. Abla-Salmeron, No. A14-1127, 2015 WL 1959968, at *1
(Minn. App. May 4, 2015) (appellant’s direct appeal).
Nearly five years after his appeal was final, appellant filed a petition for
postconviction relief arguing that his conviction should be overturned based on his
interpretation of the Minnesota Supreme Court’s recent decision in State v. Ortega-
Rodriguez. 920 N.W.2d 642 (Minn. 2018) (reversing a conviction for first-degree criminal
sexual conduct because the required statutory element of “penetration” was not shown ).
Appellant argued that the ruling in Ortega-Rodriguez constituted a “new interpretation of
federal or state constitutional or statutory law” and so excepted him from the two-year time
limit described in Minn. Stat. § 5 90.01, subd. (4)(b)(3) (2018). The district court denied
appellant’s petition, concluding that the petition was untimely and that the exception cited
by appellant did not apply.
This appeal follows.
DECISION
“A petition [for postconviction relief] that is filed outside the statute of limitations
may be summarily denied, unless a statutory exception applies.” Andersen v. State , 913
N.W.2d 417, 4 23 (Minn. 2018) (quotations and citations omitted). “We review a

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postconviction court’s summary denial o f a petition for postconviction relief for an abuse
of discretion.” Id. at 422.
A petition for postconviction relief is untimely if it is filed more than two years after
“the entry of judgment of conviction or sentence if no direct appeal is filed” or “an appellate
court’s disposition of petitioner’s direct appeal,” whichever is later. See Minn. Stat.
§ 590.01, subd. 4(a) (2018). However, the court may consider a petition when the
petitioner satisfies one of the five statutory exceptions to this two -year time limit. Id. at
subd. 4(b) (2018). In his petition for postconviction relief, appellant cited the exception
that applies when “the petitioner asserts a new interpretation of federal or state
constitutional or statutory law by either the United Stat es Supreme Court or a Minnesota
appellate c ourt and the petitioner establishes that this interpretation is retroactively
applicable to the petitioner’s case.” Id. at subd. 4(b)(3).
Appellant argued that the holding in Ortega-Rodriguez applied to his case and that
its “new interpretation” of Minnesota law provided him with an exception to the procedural
time limit. In Ortega-Rodriguez, the court dealt with criminal sexual conduct involving a
minor; the court held that the statute required proof of penetration to be convicted of first-
degree criminal sexual conduct of a minor. But this holding did not change the analysis
for first-degree criminal sexual conduct of an adu lt, and penetration was never at issue in
appellant’s case.
The district court analyzed appellant’s claim, including the proffered explanation as
to why Ortega-Rodriguez would provide appellant with an exception to the time limit on
his petition. Because the facts are dissimilar in all respects to the present case and appellant

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was charged with a different offense, the district court concluded that “ Ortega-Rodriguez
does not apply.” We agree.
Appellant filed a petition for postconviction relief more than two years after his
conviction became final. Because appellant cannot establish an exception to this rule
pursuant to Minn. Stat. § 590.01, subd. 4 (2018), the district court did not err by denying
his petition for postconviction relief.
Affirmed.