State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1765

State of Minnesota,
Respondent,

vs.

J. L. L., Jr.,
Appellant.

Filed July 20, 2020
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19-K5-07-004016

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

James C. Backstrom, Dakota County Attorney , Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Lousene M. Hoppe, Fredrikson & Byron, P.A. Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Presid ing Judge; Rodenberg, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant J.L.L., Jr., challenges the district court’s denial of his petition for statutory
expungement of his 2008 felony conviction for offering a forged check. Appellant argues
that the district court erred in concluding that appellant was validly convicted in 2008 under

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Minn. Stat. § 609.631, subd. 4(3)(b) (2006), and that statutory expungement is unavailable
for that conviction. We affirm.
FACTS
On December 13, 2007, appellant was charged with one count of offering a forged
check based on conduct from September 2, 2007. The complaint states that appellant “has
a previous conviction for issuance of a dishonored check from 2001, where he received a
felony sentence.” The complaint cites Minn. Stat. § 609.631, subds . 1, 3, and 4(3)(b)
(2006).
On September 9, 2008, appe llant pleaded guilty to a ch arge of check forgery and
received a 17-month stayed prison sentence with three years of probation. Appellant was
discharged from probation on August 11, 2011.
Appellant petitioned for expungement of his 2008 conviction on February 26, 2019.
At the June 19, 2019 expungement hearing, a ppellant’s counsel explained the impact that
appellant’s difficult youth ha d on appellant’s criminal hi story, detailed appellant’s
commendable transformation, and emphasized that appellant’s therapist believes that
appellant is “unlikely to ever . . . re-offend. ” Appellant’s counsel informed the district
court that appellant has already been granted six expungements in other cases. Appellant’s
counsel argued that expungement would improve appellant’s ability to pursue a career and
to provide for his daughters. Appellant also shared with the district court the difficulties
he has faced finding employment and housing because of this remaining conviction.
The state objected to appellant’s request for statutory expungement because
appellant was sentenced under Minn. Stat. § 609.631, subd. 4(3)(b), which is not an offense

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eligible for statutory expungement. The state explained that appellant was sentenced under
that subdivision because he had “a previous felony conviction for a check forgery within
the preceding five years.” The Minnesota Bureau of Criminal Apprehension also objected
to any expungement of appellant’s conviction.
On September 4, 2019, the district court granted appellant judicial expungement,
but denied statutory expungeme nt because it concluded that appellant was convicted and
sentenced under Minn. Stat. § 609.631, subd. 4(3)(b)—a statutory subdivision that is not
one of the enumerated felonies eligible for statutory expungement under Minn. Stat.
§ 609A.02, subd. 3(b) (2018).
Before the district court, appellant argue d that he could not have been convicted
under subdivision 4(3)(b) beca use “it would have been unlaw ful for him to be sentenced
thereunder when . . . he was not convicted within the five preceding years for an offense.”
Appellant contended that, meas uring “from conviction to co nviction,” his conviction in
this Dakota County case occurre d “more than five years after his [prior] Anoka County
conviction and therefore, he could not or should not have been convicted under subdivision
4(3)(b).” The state argued that appellant ha d been convicted of an offense for which
statutory expungement is unavailable. It also argued that the proper measurement of the
applicable five-year period would be whethe r five years had passed between appellant’s
earlier conviction and the criminal offense in this case.
Considering that the parties did not disp ute that appellant “was convicted for
offering a forged check in the amount of $200 , and was sentenced to 17 months in prison
with a stay of execution,” the district court concluded that appellant “was effectively

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sentenced under Minn. Stat. § 609.631, subd. 4( 3)(b).” The district court explained that
appellant’s sentence seemingly “took into account his prior forged check felony in Anoka
County” because appellant “could not otherw ise have received over a year’s prison
sentence for offering a forged check in an amount below $2 50.” The district court
concluded that appellant’s fe lony conviction was lawful and “that the proper inquiry for
determining whether to convict under subdiv ision 4(3)(b) is whether the prior related
conviction was within five years of the subsequent offense of check forgery.” The district
court observed that the langua ge of Minn. Stat. § 609.631, subd. 4(3)(b), is “somewhat
ambiguous,” but ultimately decided that “if the determinative period were construed to be
five years from conviction to conviction, the implications would cut against basic
principles of statutory construction.” The district court cited its concerns that, if sentencing
relied upon a subsequent conviction date instead of a subsequent offense date, there would
be “substantial uncertainty in charging, trial strategy, plea negotiations, and related court
processes” as well as the ability to “delay trial or pleading” until the five-year timeframe
had passed. The district court concluded that it would have granted appellant’s request for
statutory expungement if appellant had been co nvicted of an offense that was listed as an
eligible felony. It concluded that the benefit to appellant in exercising the court’s inherent
authority to expunge judi cial records outweighed “any and all countervailing
considerations,” and granted the petition to expunge judicial -branch records, but denied
appellant’s request for statutory expungement.
This appeal followed.

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D E C I S I O N
Appellant contends that the district court erred by concluding that he was convicted
under Minn. Stat. § 609.631, subd. 4(3)(b), and is therefore ineligible for statutory
expungement.
We review “the district court’s decision on whether to expunge criminal records
under an abuse-of-discretion standard.” State v. C.W.N., 906 N.W.2d 549, 551-52 (Minn.
App. 2018) (citation omitted).
Under Minnesota law, two bases exist for expungement of crimin al records: the
judiciary’s inherent authority, id. at 552, and statutory expungement, Minn. Stat.
§§ 609A.01-.04 (2018). “The judiciary’s inhe rent 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.” C.W.N., 906 N.W.2d at 552. Under Minn. Stat. § 609A.02, subd. 3, “[a]
petition may be filed . . . to seal all records relating to an arrest, indictment or information,
trial, or verdict” in some situations. One such situation is if “the petitioner was convicted
of or received a stayed sentenced for a felony violation of an offe nse listed in paragraph
(b).” Minn. Stat. § 609A. 02, subd. 3(a)(5). The expungement statute lists 50 offenses that
are eligible for statutory expungement. Minn. Stat. § 609A.02, subd. 3(b). Minn. Stat.
§ 609.631, subd. 4(3)(b), is not one of the enumerated offe nses eligible for statutory
expungement.
The district court denied appellant’s petition for expungement because he was
convicted under Minn. Stat. § 609.631, subd. 4(3)(b).

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The complaint in this case consisted of a single count of felony check forgery, to
which appellant pleaded guilty. The complaint recited the statutory authority for the charge
and sentence as Minn. Stat. § 609.631, subd s. 1, 3, and 4(3)(b). Subdivision 1 lists
applicable definitions. Subdiv ision 3 provides the elements of offering a forged check.
Subdivision 4 explains how a person convicted under subdivision 2 or 3 can be sentenced.
Nothing in the record suggests any amendment of the charged offense, and appellant does
not dispute that he was convicted of that offense. Instead, he argues that he could not have
been sentenced under subdivision 4(3)(b) be cause his January 2003 conviction was more
than five years before his September 2008 conviction.
It is true that appellant’s plea petition, the district court’s sentencing order, and the
transcript of appellant’s plea and sentencing hearing do not mention a statute of conviction.
But the complaint listed only one charge against appellant—felony check forgery—to
which appellant pleaded guilty.
We agree with the district court’s reasoni ng that appellant’s having been given a
felony-level sentence after his 2008 conviction can only mean that appellant was convicted
under Minn. Stat. § 609.631, subd. 4(3)(b). Appellant could not have been sentenced under
subdivision 4(3)(a) because he was convicted for offering a forged check in the amount of
$200, less than th e $250 minimum required for senten cing under subdivision 4(3)(a).
Appellant could not have been sentenced u nder subdivision 4(4) be cause he received a
felony-level sentence. That leaves only subd ivision 4(3)(b), the subd ivision cited in the
complaint, and seems to fit the factual circumstances of appellant’s case. Because he was
convicted of and sentenced for an offense for which statutory expungement is unavailable,

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the district court was powerless to grant appellant’s request for statutory expungement. See
Minn. Stat. § 609A.02, subd. 3(b).
Because of the procedural posture of this appeal, we do not reach the interesting
statutory-interpretation question appellant argues in the briefing. By arguing that he was
convicted and sentenced under the incorrect subdivision becau se he did not have a valid
prior qualifying offense, appe llant appears to be challengi ng the validity of his 2008
conviction through his appeal of the denial of his petition for expungement. Such a
collateral attack is improper. See State v. Warren , 419 N.W.2d 795, 798 (Minn. 1988)
(stating that “[c]ollateral attacks weaken the finality of judgments”). And because
appellant did not move for correction of hi s sentence under Minn. R. Crim. P. 27.03,
subd. 9, neither the district court in the first instance nor this court on appeal has any basis
for amending the pronounced sentence from 2008.
We agree with the district court that appe llant appears to have made an admirable
transformation since his younger years invol ving multiple legal transgressions. By
granting appellant a judicial expungement of the 2008 conviction, the district court
afforded appellant all of the relief that it could provide him. It is the legislature’s
prerogative that certain criminal offenses not be eligible for statutory expungement. State
v. M.D.T., 831 N.W.2d 276, 282-83 (Minn. 2013). The record as constituted reflects that
appellant was convicted of such an offense. We therefore affirm the district court’s denial
of statutory expungement.
Affirmed.