State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-0893

State of Minnesota,
Respondent,

vs.

M. M. S.,
Appellant.

Filed March 5, 2018
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-00-013532

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Andrew Carballo (certified student attorney), Minneapolis, Minnesota (for
respondent)

John Arechigo, Arechigo & Stokka, P.A., St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from the denial of his petition for expungement of records of
executive-branch agencies, appellant argues that the interests of justice require this court
to grant his request for expungement. We affirm.

2
FACTS
Appellant M.M.S. arranged to purchase hundreds of cartons of stolen cigarettes
from an employee of a tobacco-products wholesaler. M.M.S. then resold the cigarettes at
his St. Paul tobacco store. The offenses occurred from June 1999 to February 9, 2000.
M.M.S. was charged with eleven counts of felony theft, receiving stolen goods, purchasing
more than 20,000 cigarettes or $500 or more worth of tobacco products from an unlicensed
seller, and related offenses.
On July 26, 2001, pursuant to a plea agreement, M.M.S. entered a petition to plead
guilty to one count of purchasing more than 20,000 cigarettes or $500 or more worth of
tobacco products 1 from an unlicensed seller in violation of Minn. Stat. § 297F.20, subd.
9(c) (1998), and one count of conspiracy to commit that offense in violation of Minn. Stat.
§§ 297F.20, subd. 9(c), 609.05, subd. 1 (1998). The district court accepted the plea, stayed
imposition of sentence,2 and placed M.M.S. on probation. One condition of probation was
that M.M.S. “[p]ay restitution in the amount of $20,000 for damages caused by this
offense.” M.M.S. completed probation and was discharged in 2005, and his felony
convictions were deemed to be for misdemeanors. See Minn. Stat. § 609.13 , subd. 1(2)
(2004).

1 Cigarettes are not included in the statutory definition of “tobacco products.” Minn. Stat.
§ 297F.01, subd. 19 (1998).
2 The district court stated that “[i]f sentence is imposed, the presumptive sentence for this
offense is one (1) year and one (1) day,” which was a felony sentence. See Minn. Stat.
§ 609.02, subd. 2 ( 1998 & Supp. 1999 ); see also Minn. Sent. Guidelines II.A & cmts.
II.A.03.8, II.A.05.

3
On October 6, 2016, M.M.S. petitioned for judicial and statutory expungement of
his two convictions on the g rounds that he was sentenced to a stay of imposition, it had
been more than ten years since his discharge from probation, and he had committed no
further crimes. Following a hearing, a referee recommended granting the petition as to
judicial-branch record s and den ying the petition as to the records of executive -branch
agencies, and the district court confirmed the referee’s order.
M.M.S. sought review of the referee’s order, and, while that motion was pending
before the district court, also sought review in this court. This court stayed briefing in the
appeal pending the district court’s review of the referee’s decision. Following a hearing,
the district court granted M.M.S.’s request to seal judicial -branch records and denied his
request to seal records of executive-branch agencies. This court then issued an order lifting
the stay in briefing.
D E C I S I O N
This court reviews a district court’s expungement decision for abuse of discretion,
State v. M.D.T. , 831 N.W.2d 276, 279 (Minn. 2013), giving de novo review to issues of
statutory interpretation. See State v. S.A.M. , 891 N.W.2d 602, 604 (Minn. 2017).
“Application of a statute to the undisputed facts of a case involves a question of law, and
the district court’s decision is not binding on this court.” State v. Johnson, 743 N.W.2d
622, 625 (Minn. App. 2008).
Statutory expungement is available under prescribed circumstances set forth in
Minn. Stat. § 609A.02 (2016). Under that section, a person may seek expungement if the
person “was convicted of or received a stayed sentence for a felony violation of an offense

4
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.” Id., subd. 3(a)(5) (emphasis added) .
Paragraph (b) lists 50 felony offenses to which subdivision 3(a)(5) applies. Id., subd. 3(b).
M.M.S. concedes that the list of 50 felony offenses does not include the felony offenses for
which he received stayed sentences in 2001. Thus, because M.M.S. ’s offenses are not
listed in Minn. Stat. § 609A.02, subd. 3(b), the unambiguous language of Minn. Stat.
§ 609A.02, subd. 3(a) (5), does not permit M.M.S. to file a petition for expungement of
records relating to those offenses , and the district court did not abuse its discretion in
denying M.M.S.’s petition for expungement as to the records of executive-branch agencies.
See Minn. Stat. § 645.16 (2016) (stating that “[w]hen the words of a law in their application
to an existing situation are clear and free from all ambiguity, the letter of the law shall not
be disregarded under the pretext of pursuing the spirit”).
M.M.S., nevertheless, argues that “the interests of justice require this Court to grant
[his] request for statutory expungement of law enforcement records .” M.M.S. does not,
however, cite any authority that permits this court to disregard a requirement of Minn. Stat.
§ 609A.02, subd. 3(a) (5), “in the interest s of justice.” And even if this court had such
authority, M.M.S. has not established the claimed factual basis for his request for
expungement in the interests of justice.
M.M.S. claims that, when he pleaded guilty in 2001, a violation of Minn. Stat.
§ 297F.20, subd. 9(c) (2000), was a felony, but, following an amendment of that statute in
2003, a violation of Minn. Stat. § 297F.20, subd. 9(c), became a gross misdemeanor. See
2003 Minn. Laws ch. 127, art. 7, § 11, at 853 (eff. July 1, 2003). M.M.S. contends that the

5
legislature could not have properly considered whether his convictions should be included
in the list of 50 felonies in Minn. Stat. § 609A.02, subd. 3(b), because, when the legislature
enacted the list in 2014, his offenses had become gross misdem eanors. See 2014 Minn.
Laws ch. 246, § 6, at 811-14 (eff. Jan 1, 2015).
M.M.S.’s argument mischaracterizes the 2003 amendment to Minn. Stat. § 297F.20,
subd. 9 . Before the amendment, that subdivision contained three paragraphs , which
defined offenses for purchasing cigarettes or tobacco products from an unlicensed seller.
See 2003 Minn. Laws ch. 127, art. 7, § 11, at 853. Paragraph (a) defined a misdemeanor
offense as purchasing more than 200 but fewer than 5,000 cigarettes or up to $100 worth
of tobacco products. Id. Paragraph (b) defined a gross-misdemeanor offense as purchasing
5,000 or more, but fewer than 20,001 cigarettes or up to $500 worth of tobacco products.
Id. And paragraph (c) defined a felony offense as purchasing more than 20,000 cigarettes
or $500 or more worth of tobacco products. Id.
The 2003 amendment added a new paragraph at the beginning of subdivision 9 and
designated the new paragraph as paragraph (a). Id. Because the new paragraph at the
beginning of subdivision 9 was designated as paragraph (a) , the previous paragraph (a)
became paragraph (b), the previous paragraph (b) became paragraph (c), and the previous
paragraph (c) became paragraph (d). Id. The 2003 amendment also made one substantive
change in the definition of a felony offense. Before the amendment, purchasing tobacco

6
products worth $500 or more was a felony. Id. The amendment increased this amount to
require a purchase of tobacco products worth $1,400 or more for a felony offense. 3 Id.
This substantive change, however, provides no support for M.M.S.’s claim that the
felony offenses to which he pleaded guilty in 2001 became gross -misdemeanor offenses
after the 2003 amendment. Although the factual basis for M.M.S.’s guilty plea is not
clearly established in the record, 4 it appears that the plea was solely based on purchasing
more than 20,000 cigarettes, and, therefore, the change regarding tobacco products had no
effect on M.M.S.’s offenses . And, even if the plea was based on purchasing tobacco
products, nothing in the record suggests that M.M.S. purchased tobacco products worth
more than $500 but less than $1,400. Instead, the record shows that , when M.M.S. was
sentenced in 2001, the district court required him to pay $20,000 in restitution for damages
caused by his offense s, which suggests that h e purchased products worth more than the
amount required for a felony offense either before or after the 2003 amendment.
Thus, although M.M.S. is correct that, before the amendment, an offense under
paragraph (c) was a felony, and, after the amendment, an offense un der paragraph (c) was
a gross misdemeanor, the felony offense to which he pleaded guilty was simply moved
from paragraph (c) to paragraph (d) , and his conduct would have been a felony offense
both before and after the amendment . Consequently, because Minn. Stat. § 297F.20,

3 The amendment did not change the provision that made purchasing more than 20,000
cigarettes from an unlicensed seller a felony offense. Both before and after the amendment,
purchasing more than 20,000 cigarettes from an unlicensed seller was a felony. 2003 Minn.
Laws ch. 127, art. 7, § 11, at 853.
4 The record does not include a transcript of the 2001 plea hearing.

7
subd. 9(d), is not included in the list of offenses in Minn. Stat. § 609A.02, subd. 3(b),
expungement has never been available to M.M.S. under Minn. Stat. § 609A.02,
subd. 3(a)(5).
Affirmed.