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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Expungement’s Shades of Gray

Minnesota’s new expungement law is raising issues of interpretation and implementation

A year-plus after it took effect, Minnesota’s new criminal expungement statute is posing questions of interpretation for attorneys, courts, and state agencies. Ambiguities in the law include the legal status of stays of imposition, the eligibility of DWI convictions for expungement, and the correct application of waiting period provisions.

0916-VortexMajor changes to Minnesota’s criminal expungement law in Chapter 609A took effect last year, with most provisions effective January 1, 2015. In the past year-plus, several issues related to interpretation and practical implementation have arisen. This article looks at some of those issues.

Stays of Imposition

One of the most contemplated issues has been how to classify stays of imposition in relation to expungement eligibility under the new statute. Stays of imposition typically involve a defendant’s guilty plea to an offense (most often a felony offense), acceptance of that plea, and the entry of a conviction, but with imposition or pronouncement of a permanent felony sentence stayed by the court. The defendant is convicted of a felony offense for the duration of probation, but upon successful completion of probation, the conviction is reduced to a misdemeanor. The expungement statute states in relevant part:

A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict . . . if:

(3) the petitioner was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime;

(5) the petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed in paragraph (b), and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime;

Minn. Stat. §609A.02, Subds. 3(a)(3) and (5) (emphasis added).

The question is whether a felony-level offense, for which imposition of a felony sentence was stayed and the conviction was subsequently deemed a misdemeanor, is considered a “stayed sentence for a felony violation” or a “misdemeanor conviction.” The difference is important in cases where the felony offense sought for expungement is not included among the 50 felony offenses listed as eligible for statutory expungement, or where the time since discharge is less than five years but greater than two years.

Expungement petitioners have argued that Minn. Stat. §609.13, Subd. 1(2) states, “…the conviction is deemed to be for a misdemeanor if… the imposition of the sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without sentence.” Petitioners have argued a stay of imposition is not a “stayed sentence for a felony” because a stay of imposition is, by its very definition, a stay of sentence in which no sentence is imposed.1  Petitioners have also argued that a stay of imposition was a decision by the court to avoid the consequences of a permanent felony conviction, and to interpret the expungement statute otherwise would render a stay of imposition meaningless. Petitioners further pointed out the new expungement law includes a separate provision for stays of adjudication, irrespective of the level of offense, in Minn. Stat. §609A.02, Subd. 3(a)(2). To interpret the statute to mean that all types of stayed sentences are considered felonies ignores this provision. Finally, one recent case held that a stay of imposition resulting in a misdemeanor conviction cannot be considered a prior felony conviction for purposes of the career offender enhanced punishment statute.2

Prosecutors opposing an expungement, as well as the Minnesota Bureau of Criminal Apprehension, typically have argued that a stay of imposition is a “stayed sentence for a felony violation.” In support of this position, they point to State v. Moon, which held that stays of imposition still result in a loss of the right to possess firearms and that the Legislature was concerned about the type of offense in determining who should not be allowed to possess firearms, not the later reduced conviction level.3 They have argued that the fact the expungement statute also lists 50 felonies eligible for relief indicates the Legislature was similarly concerned about the type of offenses to be made eligible for expungement.

Decisions among Minnesota district courts have been split, prompting appellate review. On January 20, 2016, the Minnesota Court of Appeals heard arguments in State v. S.A.M. (A15-0950), a case from Olmsted County in which the district court ruled a stay of imposition for a second-degree burglary offense was a stayed sentence for a felony violation (one that is not included in the list of felony offenses eligible for expungement). The district court denied the petitioner’s request for expungement.

On March 21, 2016, the Minnesota Court of Appeals affirmed, issuing a published opinion holding that the expungement statute is not ambiguous, and a felony conviction later deemed a misdemeanor conviction by operation of Minn. Stat. §609.13, Subd. 1(2) is a felony conviction for purposes of the expungement statute. A petitioner is not eligible for statutory expungement when the felony offense is not one of the 50 statutorily enumerated offenses. This holding also clearly imposes a five-year wait following the discharge of sentence before a felony offense listed in the statute is eligible for expungement, assuming the petitioner has had no new criminal convictions in that time.

On May 31, 2016, the Minnesota Supreme Court accepted this case for further review. A final decision in this matter is forthcoming.

DWI Expungement

Prior to the enactment of the new expungement statute, DWI offenses were nearly impossible to expunge. Those that involved convictions did not qualify for a full expungement under statute; the court could not reach into executive branch records held by the Minnesota Department of Public Safety to expunge the DWI conviction or corresponding driver’s license revocation from a driving record. For most defendants, this rendered expungement of a DWI offense meaningless.

With the passage of the new expungement law, DWI offenses are now subject to full statutory expungement. However, DWI expungements in particular continue to present complex issues in practice. As a result, only five DWI expungements were granted in Minnesota last year.

A common argument against expungement of DWI offenses (and some other criminal convictions, such as domestic assault) is that these convictions are used for a period of 10 years following the date of conviction to enhance penalties for any new similar offense, and that this enhancement mechanism precludes expungement. But the mere fact of expungement does not prevent the state from using the expunged conviction to enhance a subsequent offense. According to Minn. Stat. §609A.03, Subd. 7a(b)(1), “an expunged record may be opened, used, or exchanged between criminal justice agencies without a court order for the purposes of initiating, furthering, or completing a criminal investigation or prosecution or for sentencing purposes or providing probation or other correctional services.”

An expungement is commonly regarded as involving the sealing of records, not the reversal of a conviction or underlying proceedings. Minn. Stat. §609A.03, Subd. 6, for example, states, “if the court orders the sealing of the record of proceedings under section 152.18, the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.” The Legislature, by including this language for Minn. Stat. §152.18 (felony drug diversion) expungement cases, excludes persons receiving an expungement in other types of cases from that same status. Nothing in Chapter 609A or any other law provides that an expungement of a conviction also restores the person to the status the person occupied before the arrest.4 Clearly, the state has the ability to open a previously expunged case for purposes of a new prosecution, and has the ability to use an expunged conviction to enhance a new charge.

That said, a common practical question is how prosecutors can determine the existence of an expunged conviction for purposes of charging a new offense. In February 2015, the Criminal Justice Information Services (CJIS) announced the implementation of a new criminal history “purpose code” in its database. “Purpose code Q” should now be used in place of “purpose code C” when a criminal records check is performed for initiating, furthering, or completing a criminal investigation or providing probation or other correctional services. Purpose code Q will return all of the information that purpose code C returns, with the addition of data expunged after January 1, 2015, the date the new expungement law took effect.

Another issue with expungement of DWI offenses is that they often involve records related to a corresponding revocation of a driver’s license, otherwise known as implied consent case records. Implied consent cases are civil proceedings, while Chapter 609A explicitly provides for expungement of criminal records. The counter-argument is that Chapter 609A also explicitly provides for the sealing of all records related to an arrest, indictment or information, trial, or verdict, and the records related to the revocation of the petitioner’s driver’s license are records related to the criminal arrest and proceedings, and therefore subject to expungement.

The Minnesota DWI Task Force proposed to amend Chapter 609A this past legislative session to specifically exclude DWIs from statutory expungement eligibility. The proposal would have created Minn. Stat. §609A.02, Subd. 4(b), prohibiting expungement of a conviction and/or driver’s license revocation for DWI and criminal vehicular operation offenses. The measure failed to pass.

Waiting Periods

The newly added provisions of Minnesota’s expungement law require waiting periods before a petitioner becomes eligible for full statutory expungement of a criminal record, during which the person may not be charged or convicted of a new crime. The expungement statute states in relevant part:

A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict . . . if:

(2) the petitioner has successfully completed the terms of a diversion program or stay of adjudication and has not been charged 5 with a new crime for at least one year since completion of the diversion program or stay of adjudication;

(3) the petitioner was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime;

(4) the petitioner was convicted of or received a stayed sentence for a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence for the crime;

(5) the petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed in paragraph (b), and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime;

Minn. Stat. §609A.02, Subds. 3(a)(2-5) (emphasis added).

The waiting period language has given rise to two different interpretations with regard to the timing of eligibility to file a petition for expungement if a person has been charged with or convicted of a new crime since the discharge of the sentence for the offense one is trying to expunge.  The two interpretations are: 1) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least x years before the current petition was filed; or 2) if the petitioner has been convicted of a subsequent crime, that conviction must have occurred at least x years after discharge of the sentence for the offense sought to be expunged.

The first interpretation means the waiting period is primarily satisfied in the time just prior to the filing of the petition, assuming the person has also been discharged from the sentence in question for the appropriate number of years. A new criminal conviction restarts the waiting period, but does not disqualify a person from eventually petitioning for expungement. A person convicted of a new crime one year after discharge of a gross misdemeanor sentence, for example, would then have to wait at least four additional years after that new conviction date before petitioning for expungement of the gross misdemeanor crime. Given that courts are required to consider a petitioner’s progress toward rehabilitation, the legislative intent likely was that expungement can occur no sooner than four years after the most recent criminal conviction.

In the second interpretation, the relevant point in time is the years immediately after the discharge of the sentence. For example, a person convicted of a new crime one year after discharge of a gross misdemeanor sentence would be disqualified from ever petitioning for expungement of that gross misdemeanor crime. If, for example, a person was convicted of a gross misdemeanor crime in 1991, placed on probation for two years and discharged in 1993, and then subsequently convicted of a new misdemeanor offense in 1994, that person could seek expungement of the 1994 misdemeanor conviction, but never the 1991 gross misdemeanor crime. In contrast, a person convicted of a new crime more than four years after discharge of the gross misdemeanor sentence (in the terms of the preceding example, convicted of a new crime in 1998 instead of 1994) would be able to petition for expungement of the 1991 gross misdemeanor crime, despite having been convicted of a new offense within four years of the date of the petition filing—even if he or she was currently on probation for a new crime.

The Minnesota Bureau of Criminal Apprehension typically responds to expungement petitions using the second interpretation—that someone convicted of a new criminal offense immediately after discharge of the sentence for the offense sought to be expunged is never eligible for an expungement. Initially, Hennepin County likewise employed the second interpretation. But Hennepin County later changed course to adopt the first interpretation, albeit inconsistently, and recent cases have reverted back to using the second interpretation.

Diversion Cases Not Involving a Plea

Hennepin and Ramsey Counties have diversion programs, Operation De Novo (Hennepin) and Project Remand (Ramsey), that do not require a defendant to enter a guilty plea in order to enter and successfully complete diversion. Prior to 2015, this meant defendants who successfully completed one of these diversion programs could seek expungement as a petitioner who had their case resolved in their favor, which has been defined as a case that does not involve the entry of a guilty plea.6 Following the enactment of the new expungement law in 2015, an ambiguity arose as to whether these diversion cases not involving a plea would still be considered cases resolved in favor of a petitioner, or whether these cases would instead be eligible under Minn. Stat. §609A.02, Subd. 3(a)(2), which allows for expungement if the person has completed the terms of a diversion program and has not been charged with a new crime for at least one year since completion of the diversion program.

The legislative intent was to provide a statutory expungement remedy for stays of adjudication and diversion programs in other counties that require a guilty plea before entering the diversion program. The practical consequence in Hennepin and Ramsey Counties, however, has been to now require successful Operation De Novo and Project Remand participants to wait one year after discharge before becoming eligible for a statutory expungement, whereas eligibility used to occur immediately upon discharge. More importantly, Project Remand and Operation De Novo participants are now required to pay a $325 court filing fee; previously, the filing fee had been waived as a case resolved in the petitioner’s favor. These new requirements have been imposed despite the fact that Operation De Novo and Project Remand participants have not entered a guilty plea, and the disposition of their case is functionally identical to a continuance for dismissal, which is considered a result in favor of the petitioner.

152.18 Drug Diversion Cases

One additional source of confusion has been how to classify felony drug possession cases resolved with a statutory stay of adjudication pursuant to Minn. Stat. §152.18. If the court considers the case eligible for expungement pursuant to Minn. Stat. §609A.02, Subd. 1, which explicitly allows for expungement of 152.18 cases, the petitioner is immediately eligible for statutory expungement upon discharge of sentence. If the court considers the case instead to be eligible as a stay of adjudication under Minn. Stat. §609A.02, Subd. 3(a)(2), a one-year waiting period (with no new criminal charges) is required. Only expungements granted pursuant to Minn. Stat. §609A.02, Subd. 1 restore the person to the status the person occupied before the arrest, indictment, or information, whereas expungements granted pursuant to Minn. Stat. §609A.02, Subd. 3(a)(2) do not.

To make matters more complicated, expungement proceedings pursuant to Minn. Stat. §609A.02, Subd. 3(a)(2), shift the burden of proof to a prosecutor or agency whose records are affected to prove by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record. If the prosecutor or agency whose records are affected does not meet this burden, the judge must grant the expungement petition.7 Cases considered eligible under Minn. Stat. §609A.02, Subd. 1, place the burden on the petitioner to show clear and convincing evidence it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of sealing the record and burdening the court and public authorities to issue, enforce, and monitor an expungement order.

Appellate Case Records

The Court of Appeals Administration Office recently considered how to deal with appellate case records in the matter of State v. P.J.I. 8 P.J.I. was convicted at jury trial of felony first-degree arson. P.J.I. appealed to the Minnesota Court of Appeals, where his conviction was overturned due to insufficiency of the evidence. The conviction was then vacated and the charge against him dismissed. P.J.I. subsequently applied for and was granted a statutory expungement as a case resolved in his favor. The court of appeals was served with notice of the expungement hearing as an agency that held records related to the matter.
The Court of Appeals Administration Office initially agreed to redact the published appellate case to only show P.J.I.’s initials, rather than full name. But the office recently reversed course, stating that redacting P.J.I.’s name would make the case inconsistent with what was distributed to case reporting services such as Westlaw, Lexis Nexis, FindLaw, etc. The court of appeals’ position is that dissemination of the case is so extensive that redaction is no longer possible. This is important to keep in mind with regard to defendants who qualify for full statutory expungement, but who have appellate case records (much like those who have a case reported in the media, where the First Amendment will ensure the news story remains on the internet).


KELLY KEEGAN is a partner at Brandt Criminal Defense, handling criminal defense, criminal expungements, DHS background study disqualifications, and firearms rights restoration. Kelly is also a Minnesota Association of Criminal Defense Lawyers board member and the legislative committee chair. 


Notes

1 State v. Beaty, 696 N.W.2d 406, 410 (Minn. Ct. App. 2005.

2 State v. Franklin, 861 N.W.2d 67 (Minn. 2015).

3 State v. Moon, 463 N.W.2d. 517 (Minn. 1990).

4 The only exception is if the district court makes a finding there is a nexus between the criminal record and the person’s status as a crime victim. In these cases, the expungement will also then restore the person to the status the person occupied before the arrest. Minn. Stat. §609A.03, Subd. 6a.

5 Stay of adjudication and diversion dispositions require a person has not been charged with a new crime for at least one year. The other three clauses require the person has not been convicted of a new crime for the stated time period.

6 State v. Davisson, 624 N.W.2d. 292 (Minn. Ct. App. 2001).

7 Minn. Stat. §609A.03, Subd. 5(b).

8 Citation and full name of the defendant are omitted to protect the defendant’s privacy.

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