A17-0729

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0728
A17-0729

State of Minnesota,
Respondent,

vs.

C. W. N.,
Appellant.

Filed January 2, 2018
Reversed in part and remanded
Schellhas, Judge

Redwood County District Court
File Nos. 64-TX-00-000587, 64-K6-00-00280

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

Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and

Amy M. Busse, Redwood Falls City Attorney, Redwood Falls, Minnesota (for respondent)

Peter H. Dahlquist, Dahlquist Law, LLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Halbrooks, Pr esiding Judge; Schellhas, Judge; and Kirk,
Judge.
S Y L L A B U S
To be eligible for expungement of executive-branch records of a petty-misdemeanor
or misdemeanor conviction under Minn. Stat. § 609A.02, subd. 3(a)(3) (2016), a petitioner
must not have been convicted of a new crime for at least two years immediately preceding
the filing of an expungement petition. To be eligible for expungement of executive-branch
records a gross-misdemeanor conviction under Minn. Stat. § 609A.02, subd. 3(a)(4)

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(2016), a petitioner must not have been convicte d of a new crime for at least four years
immediately preceding the filing of an expungement petition.
O P I N I O N
SCHELLHAS, Judge
Appellant challenges the district court’ s denial of his petition for expungement
under Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), of executive-branch records related to his
misdemeanor and gross-misdemeanor convictions.
FACTS
A district court convicted appellant C.W.N. of misdemeanor and gross-
misdemeanor violations of a harassment restra ining order in 2000 (HRO convictions). In
2002, a district court convicted C.W.N. of third-degree driving while impaired (DWI).1 In
December 2015, C.W.N. filed petitions under Minn. Stat. § 609A.02, subd. 3(a)(3)-(4) to
expunge his HRO convictions. The Minnesota Bureau of Criminal Apprehension (BCA)
objected in district court to C.W.N.’s petiti ons, arguing that C.W.N. is ineligible for
statutory expungement of its agency record s. Neither the City of Redwood Falls nor
Redwood County objected to C.W.N.’s petitions.
At his expungement hearing, C.W.N. ar gued that clear and convincing evidence
supported expungement of judicial- and ex ecutive-branch record s of his 2000 HRO
convictions. The district court, under its inherent authority, gr anted expungement of

1 In August 2015, a district court granted C.W.N. a stay of adjudication after C.W.N.
pleaded guilty to making obs cene or harassing phone calls under Minn. Stat. § 609.79,
subd. 1(1)(ii) (2014). The record on appeal contains no additional details about this offense.

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judicial-branch records of the HRO convicti ons and ordered that all files and records
relating to the offenses be sealed. The partie s do not challenge this portion of the district
court’s order. But the court denied C.W.N .’s petitions for statutory expungement of
executive-branch records, embracing the BCA’s interpretation of the expungement statute.
The court concluded that C.W.N. is inelig ible for executive-branch-records expungement
of his misdemeanor HRO conviction because of his gross-misdemeanor HRO-violation
conviction within two years immediately following the misdemeanor conviction and of his
gross-misdemeanor HRO-violation conviction because of his DWI conviction within four
years immediately following the gross-misdemeanor conviction.
This appeal follows.
ISSUE
Is C.W.N. eligible for expungement of his executive-branch records under Minn.
Stat. § 609A.02, subd. 3(a)(3)-(4)?
ANALYSIS
C.W.N. challenges the district court’s de nial of his petition to expunge executive-
branch records and its interpretation of Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), and argues
that he is eligible for expungement under the statute because he was not convicted of any
new crimes within two and four years immediately preceding the filing of his expungement
petitions. This court reviews the district cour t’s decision on whether to expunge criminal
records under an abuse- of-discretion standard. State v. M.D.T. , 831 N.W.2d 276, 279

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(Minn. 2013). We review the district court’s interpretation of the expungement statute de
novo as a question of law. State v. S.A.M., 891 N.W.2d 602, 604 (Minn. 2017).
Minnesota law establishes two bases for expungement of criminal records: Minn.
Stat. §§ 609A.01-.04 (2016 & Supp. 2017) and the judiciary’s inherent authority. M.D.T.,
831 N.W.2d at 279. The judiciary’s inherent authority only allows a court to seal those
records kept by the judicial branch and does not extend to records held by executive-branch
agencies. Id. at 282–83. A district court may order executive-branch agencies to seal their
records only if a petitioner fo r expungement is eligible un der Minn. Stat. § 609A.02 and
the court finds “clear and convincing evidence that it would yield a benefit to the petitioner
commensurate with the disadvantages to th e public and public safety.” Minn. Stat.
§ 609A.03, subd. 5(a) (2016).
The Minnesota Supreme Court has “never held that the judiciary’s inherent
authority to order expungement extends to records held in the executive branch.” M.D.T.,
831 N.W.2d at 281. And until 2015, the ex pungement statute only “provided for the
expungement of criminal records for certain controlled substance crimes, Minn. Stat.
§ 609A.02, subd. 1, certain juvenile offenders prosecuted as adults, Minn. Stat. § 609A.02,
subd. 2, and certain criminal cases that do not result in convictions, Minn. Stat. § 609A.02,
subd. 3.” M.D.T., 831 N.W.2d at 282 (c iting Minn. Stat. § 609A.02, subds. 1-3 (2012)).
The law did not allow for expungement of th e criminal records of someone like C.W.N.
But effective 2015, the Minnesota Legislature amended the expungement statute to allow
expungement of petty misdemeanors, misdem eanors, gross misdemeanors, and certain

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felonies. 2014 Minn. Laws ch. 246, § 6, at 811–14 (codified as amended at Minn. Stat.
§ 609A.02, subd. 3 (2016)).
The portion of the expungement statute at issue in this case states:
(a) A petition may be filed under section 609A.03 to
seal all records . . . 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 cr ime for at least two years since
discharge of the sentence for the crime; [or]
(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[.]

Minn. Stat. § 609A.02, subd. 3( a)(3)-(4) (emphasis added). In S.A.M., following the
legislature’s amendment to the statute, the supreme court characterized the two-, four-, and
five-year periods in Minn. St at. § 609A.02, subd. 3(a)(3)-(5 ), as “waiting periods.” 891
N.W.2d at 608.
When interpreting a statute, an appellate court must first determine whether the
statute’s language, on its face, is ambiguous. State v. Thonesavanh, ___ N.W.2d ___, ___,
2017 WL 3880768, at *2 (Minn. Sept. 6, 2017). The plain language of the statute controls
only if it is unambiguous and “is susceptible to only one reasonable meaning.” Brayton v.
Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010). A statut e is ambiguous if it is subject to
more than one reasonable interpretation. Poehler v. Cincinnati Ins. Co., 899 N.W.2d 135,
139 (Minn. 2017).
The BCA objected to C.W.N.’s petition in district cour t on the basis that the
statutory language means that if a person has a new conviction during an applicable waiting

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period—two years for a petty misdemeanor or misdemeanor and four years for a gross
misdemeanor—the person will ne ver be eligible to seek statutory expungement of
executive-branch record s related to the original convict ion. C.W.N. argues that, under
Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), a person is eligible to seek statutory expungement
of executive-branch records as long as the pe rson has not been convicted of a new crime
during the applicable waiting period immediately preceding the filing of an expungement
petition. In other words, the BCA argued that “since” in Minn. Stat. § 609A.02, subd.
3(a)(3)-(4), means that the two- or four-year waiting period begi ns to run on the date of
“discharge of the sentence for the crime” and that if any new co nvictions occur during
those waiting periods, a petitioner is forever ineligible to seek expungement with respect
to the crimes subject to the waiting periods. C.W.N. argues that the minimum two- or four-
year period immediately precedes the date of filing the petition.
Chapter 609A does not define “since.” “In determining the plain and ordinary
meaning of undefined words or phrases in a statute, we may consult the dictionary
definitions of those words and apply th em in the context of the statute.” Poehler, 899
N.W.2d at 140–41. The dictionary definition of “since” depends on whether it serves as an
adverb (“[f]rom then until now or between then and now”); a preposition (“[c]ontinuously
from”); or a conjunctive (“[d]uring the period subsequent to the time when”). The
American Heritage Dictionary of the English Language 1635 (5th ed. 2011). We conclude
that “since” in the statute serves as an a dverb, modifying “has not been convicted.”
Applying the dictionary defin ition of “since,” as an adverb, we interpret the statutory
language to mean that the two- and four-year conviction-free periods must occur between

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the date of discharge of the sentence for the crime, i.e., “then,” and the date of filing an
expungement petition, i.e., “now.” We therefore conclude that C.W.N. is eligible to petition
for statutory expungement of the executive- branch records under Minn. Stat. § 609A.02,
subd. 3(a)(3)-(4).
Our conclusion is supported by the fact that the expungement statute automatically
bars those individuals convicted of a crim e requiring registration from petitioning for
expungement. Minn. Stat. § 609A.02, subd. 4 (2016) (“Records of a conviction of an
offense for which registration is required [for predatory offenses] may not be expunged.”).
Further, in amending the expungement statute in 2014, the legislature added a paragraph
excluding from the exceptions in Minn. Stat. § 609A.02, subd. 3(a)(3)-(4), certain offenses
related to domestic abuse and sexual assaul t. 2014 Minn. Laws. ch. 246, § 6, at 811–14
(providing that “[t]his paragraph expires on July 15, 2015”). Had the legislature wanted to
permanently disqualify C.W.N.’s HRO co nvictions from expungement due to his
subsequent convictions within the waiting periods, the legisl ature could have used more
restrictive language, but it did not. See State v. Expose, 872 N.W.2d 252, 258–59 (Minn.
2015) (“The inference to be drawn from the Legislature’s decision to create exceptions . . .
in some statutes, but not others, is that it did not intend to create an exception . . . in those
statutes that do not mention [an exception].”).
We do not address the language in Minn. Stat. § 609A.02, subd. 3(a)(5), relating to
felonies. And we offer no opinion on whether the district court should grant C.W.N.’s
petition for statutory expungement; we hold onl y that the court may consider C.W.N.’s

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petition for statutory expungement in applying the factors in Minn. Stat. § 609A.03, subd.
5(a)-(c).
D E C I S I O N
Because C.W.N. has not been convicted of a new crime for at least two years
immediately preceding the filing of his expun gement petition regarding his misdemeanor
HRO conviction, and becau se he has not been convicted of a new crime for at least four
years immediately preceding the filing of hi s expungement petition regarding his gross-
misdemeanor HRO conviction, he is eligible under Minn. Stat. § 609A.02, subd. 3(a)(3)-
(4), to seek expungement of executive-branch records of his misdemeanor and gross-
misdemeanor HRO convictions. We therefore reverse the district court’s denial of statutory
expungement of the executiv e-branch records and rema nd for further proceedings
consistent with this opinion.
Reversed in part and remanded.