State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0272

State of Minnesota,
Appellant,

vs.

N. O. S.,
Respondent

Filed December 18, 2017
Stauber, Judge∗
Reversed and remanded

Kandiyohi County District Court
File No. 34-TX-00-000783

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for appellant)

Daniel B. Mohs, Minneapolis, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Stauber,
Judge.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
On appeal from the district court’s order granting expungement, appellant-State
argues that the district court erred by shifting the burden of proof from respondent-
petitioner to appellant and abused its discretion by failing to make specific factual findings
as to the factors listed in Minn. Stat. § 609A.03, subd. 5(c) (2016). Because we conclude
that the district court erroneousl y shifted the burden of proof to appellant and failed to
make the necessary findings of fact, we reverse and remand.
FACTS
Respondent N.O.S. was convicted of violating an order for protection in 2000, and
violating a restraining order in 2009. Respondent petitioned the district court in 2016,
pursuant to Minn. S tat. § 609A.02, subd. 3 (a)(3) (2016), to expunge records of both
convictions. Along with his petition, respondent submitted a proposed order titled “Order
Concerning Sealing/Expunging of Records[,]” which was a standardized form listed on the
Minnesota Judicial Branch website that reflected that it was last revised in January 2015.
Paragraph seven of that proposed order allowed the district court to check a box indicating
that “[t]he law enforcement agency, government agency, or jurisdiction whose records
would be affected” either has or has not “established by clear and convincing evidence that
the interests of the public and public safety outweigh the disadvantages to the [p]etitioner
of not sealing the record.”
In April 2015, the standardized form titled “Order Concerning Sealing/Expunging
of Records” listed on the Minnesota Judicial Branch website was revised. The new form
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distinguishes between petitions filed pursuant to Minn. Stat. § 609A.02, subd. 3(a)(3)-(5),
in which the petitioner bears the burden of proof, and petitions filed pursuant to Minn. Stat.
§ 609A.02, subd. 3(a)(1)-(2), in which a law enforcement agency, government agency, or
jurisdiction bears the burden of proof.
Appellant objected to respondent’s petition, and the district court held a hearing. At
no point did counsel for either party , or the district court explicitly articulate which party
bore the burden of proof. The district court took the matter under advisement.
The district court subsequently filed two orders granting respondent’s petition with
respect to both the 2000 and 2009 convictions. These orders were completed using the
standardized form respondent submitted. The district court checked several boxes and
filled in several blank spaces. These orders contain no findings of fact. In both orders, the
district court concluded that appellant “ha[d] not established by clear and convincing
evidence that the interests of the public and public safety outweigh[ed] the disadvantages
to the [p]etitioner of not sealing the record[.]” This appeal followed.
D E C I S I O N
Burden of proof
Appellant argues that the district court improperly held it to the burden of proof in
opposing respondent’s expungement petition. An appellate court reviews the district
court’s decision whether to expunge criminal records for an abuse of discretion. State v.
M.D.T., 831 N.W.2d 276, 279 (Minn. 2013). However, the proper construction of the
expungement statute is a question of law that is reviewed de novo. State v. Ambaye, 616
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N.W.2d 256, 258 (Minn. 2000). We therefore review whether the district court erroneously
shifted the burden of proof to appellant de novo.
There are the two possible standards that a district court may apply in determining
whether to grant a petition for expungement under the expungement chapter, 609A. See
Minn. Stat. § 609A.03. First, section 609A.03, subdivision 5(a) provides the general
standard:
[E]xpungement of a criminal record is an extraordinary remedy
to be granted only upon clear and convincing evidence that it
would yield a benefit to the petitioner commensurate with the
disadvantages to the public and public safety of:
(1) sealing the record; and
(2) burdening the court and public authorities to issue, enforce,
and monitor an expungement order.

Second, section 609A.03, subdivision 5(b) provides that if the petitioner seeks to seal a
criminal record pursuant to Minn. Stat. § 609A.02, subd. 3(a)(1)-(2), “the court shall grant
the petition to seal the record unless the agency or jurisdiction whose records would be
affected establishes 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.”
The parties agree that respondent should have borne the burden of proof in support
of his expungement petition because he sought relief under Minn. Stat. § 609A.02, subd.
3(a)(3) and that the district court’s order granting respondent’s petition mistakenly
indicated that appellant, rather than respondent, bore the burden of proof. Despite these
admissions, respondent argues that the district court’s error is merely “technical” and does
not warrant reversal.
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Respondent relies upon Steinbauer v. Stone, in which the supreme court declined to
reverse the district court despite the substitution of the word “or” for “and” in jury
instructions because the error was not prejudicial to the defendant and could not have
misled the jury. 85 Minn. 274, 277, 88 N.W. 754, 755 (1902). Unlike the error in
Steinbauer, the district court’s error in this case fundamentally altered the nature of its
analysis, erroneously holding appellant to a burden of proof that it should not have borne.
Respondent also argues that we should not reverse because the district court’s error
was inadvertent and did not affect appellant’s rights. Respondent compares the present
case to State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985) in which the district
court imposed a consecutive sentence that violated the statutorily prescribed order. This
court declined to reverse or remand sentencing for “this technical error” because “[t]he
result would almost certainly be the same.” Id. Unlike the error in Stafford, the district
court’s error here improperly shifted the burden of proof to appellant, thus undoubtedly
prejudicing appellant. Further, the record does not establish that the district court intended
to apply the correct standard and erred by simply filling out the incorrect form. We
conclude that the district court erred by holding appellant to the burden of proof in
opposition to respondent’s expungement petition and that this error necessitates reversal.
Findings of fact
Appellant argues that we should remand this case for further findings and
proceedings because the district court failed to make findings of fact regarding the factors
listed in the expungement statute. When the district court fails to make specific findings,
the reviewing court is unable to determine whether the district court abused its discretion,
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and reversal and remand for findings is necessary. State v. A.S.E., 835 N.W.2d 513, 517
(Minn. App. 2013).
To determine whether expungement is appropriate, the district court “shall
consider” the following factors:
(1) the nature and severity of the underlying crime, the record
of which would be sealed;
(2) the risk, if any, the petitioner poses to individuals or
society;
(3) the length of time since the crime occurred;
(4) the steps taken by the petitioner toward rehabilitation
following the crime;
(5) aggravating or mitigating factors relating to the underlying
crime, including the petitioner’s level of participation and
context and circumstances of the underlying crime;
(6) the reasons for the expungement, including the petitioner’s
attempts to obtain employment, housing, or other necessities;
(7) the petitioner’s criminal record;
(8) the petitioner’s record of employment and community
involvement;
(9) the recommendations of interested law enforcement,
prosecutorial, and corrections officials;
(10) the recommendations of victims or whether victims of the
underlying crime were minors;
(11) the amount, if any, of restitution outstanding, past efforts
made by the petitioner toward payment, and the measures in
place to help ensure completion of restitution payment after
expungement of the record if granted; and
(12) other factors deemed relevant by the court.

Minn. Stat. § 609A.03, subd. 5(c). In the absence of any findings, it is impossible for this
court to conclude that the district court considered the statutory factors. See State v. K.M.M,
721 N.W.2d 330, 335 (Minn. App. 2006) (remanding because the district court failed to
make sufficient findings pursuant to Minn. Stat. § 609A.03, subd. 5 (2004)).
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We have previously reversed and remanded other expungement cases because the
district court simply checked boxes on a template order and failed to make the necessary
findings of fact. See In re Welfare of J.T.L. , 875 N.W.2d 338 , 338 (Minn. App. 2015);
A.S.E., 835 N.W.2d at 517. That is precisely what occurred in this case. We hold that the
district court abused its discretion by failing to make any specific findings of fact, and we
reverse and remand for application of the relevant statutory factors.
Reversed and remanded.