State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1280

State of Minnesota,
Respondent,

vs.

D. E. L.,
Appellant.

Filed April 26, 2021
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Morrison County District Court
File No. 49-CR-13-511

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

Brian J. Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

Jessica Mikkelson, Central Minnesota Legal Services, St. Cloud, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and
Smith, Tracy M., Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges an order denying her petition for expungement, arguing that
the district court erred in deter mining that her offense was not eligible for expungement
under Minn. Stat. § 609A.02, subd. 3(b)(20) (2018), and by failing to consider her request

2
for expungement under the court’s inherent authority. We affirm in part, reverse in part,
and remand.
FACTS
In April 2013, respondent State of Minnesota charged appellant D.E.L. with felony
theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(a)(1) (2012), with reference to
Minn. Stat. § 609.52, subd. 3(3)(d)(v) (2012).1 The complaint alleged that D.E.L. stole a
vehicle that another individual was storing on D.E.L.’s property and sold it to a salvage
business without the individual’s permission. In May 2014, D.E.L. pleaded guilty to the
charged offense . The district co urt stayed imposition of sentence, placed D.E.L. on
probation, and ordered her to pay $467 in restitution. On November 10, 2015, the district
court discharged D.E.L. from probation and deemed her conviction to be a misdemeanor
pursuant to Minn. Stat. § 609.13 (2014).
On May 22, 2020, D.E.L. petitioned the district court to expunge the criminal
records related to her conviction. She argued that her conviction qualified for statutory
expungement and alternatively requested that the district court consider her petition under
the court’s inherent authority to expunge judicial -branch records. She explained that she
was seeking expungement because she was concerned that her conviction would limit her

1 Minn. Stat. § 609.52, subd. 2(a)(1), sets out the following elements for the crime of theft—
“intentionally and without claim of right takes . . . movable property of another without the
other’s consent and with intent to deprive the owner permanently of possession of the
property.” Minn. Stat. § 609.52, subd. 3(3)(d)(v), sets the sentence at up to five years when
the theft was of a motor vehicle valued at $1,000 or less.

3
housing and employment options, and that she had been turned down for employment by
30 employers.
D.E.L. further explained that she suffered a traumatic brain injury in 2002, and that
injury allowed others to take advantage of her and influence d her past criminal behavior.
She noted that since her conviction she had been receiving treatment for her mental health
and brain injury, surrounded herself with people who supported her, and asserted that she
had changed and was not the same person that she was at the time of th e offense. D.E.L.
also submitted letters from medical professionals to verify that she had suffered a brain
injury and that it made her susceptible to being taken advantage of, and letters from friends
to support her assertion that she had changed.
The Minnesota Bureau of Criminal Apprehension (the BCA) filed a letter objecting
to the petition for expungement. The BCA argued that D.E.L. was not entitled to have her
records expunged because her offense was not included in the list of offenses eligible for
expungement under Minn. Stat. § 609A.02, subd. 3(b) (2018). The BCA further objected
on the grounds that the statutory waiting period of five years after being discharged from a
sentence had not yet elapsed . Minn. Stat. § 609A.02, subd. 3(a)(5) (2018). Following a
hearing, the district court denied the petition, stating as the reason for the denial that D.E.L.
was “not eligible [for expungement] as offense not included in eligible list.” Counsel for
D.E.L. submitted a letter to the court seeking clarification of whether the court intended by
its order to also deny D.E.L.’s request for expungement under the court’s inherent
authority. The district court then reissued its denial order, adding a reference to Minn. Stat.

4
§ 609A.03, subd. 5(a) (2018),2 in the heading of the order, but no other changes. D.E.L.
now appeals.
DECISION
I. The district court did not err by determining that D.E.L.’s conviction is not
eligible for statutory expungement.

We review a district court’s decision on whether to expunge criminal records for an
abuse of discretion. State v. C.W.N. , 906 N.W.2d 549, 551 -52 (Minn. App. 2018). But
“[w]e review the district court’s interpretation of the expungement statute de novo as a
question of law.” Id. at 552.
D.E.L.’s argument on this appeal presents a question of statutory interpretation —
whether her conviction is for an offense that is eligible for expungement under Minn. Stat.
§ 609A.02 (2018). The goal of statutory interpretation is to “ascertain and effectuate th e
intention of the legislature.” Minn. Stat. § 645.16 (2020). “When the language of a statute
is plain and unambiguous, it is assumed to manifest legislative intent and must be given
effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn. 2001). Words and phrases
are construed according to their plain and ordinary meaning. Am. Tower, L.P. v. City of

2 Minn. Stat. § 609A.03, subd. 5(a), of the expungement statute provides, in relevant part,
as follows:
[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.

5
Grant, 636 N.W.2d 309, 312 (Minn. 2001). If a statute is susceptible to more than one
reasonable meaning, the court applies canons of construction to discern the intention of the
legislature. Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010).
Minnesota Statutes chapter 609A sets out the grounds and procedures for
expungement of a criminal record. Minn. Stat. § 609A.01 (2018). The eligible offenses
and other grounds required for expungement are provided in Minn. Stat. § 609A.02.
Clauses (1) through (4) of section 609A.02, subd ivision 3(a), allow expungement of
proceedings “resolved in favor” of the petitioner, and of proceedings where the petitioner
has successfully completed a diversion program or was convicted of a misdemeanor or
gross misdemeanor and has not been convicted of any new crime for a set number of years
since discharge of the sentence for the offense. Minn. S tat. § 609A.02, subd. 3 (a)(1)-(4).
Clause (5) of that subdivision applies to felony offenses. Minn. Stat. § 609A.02,
subd. 3(a)(5). The statute contains a list of 50 felony offenses that are eligible for
expungement under chapter 609A. Id., subd. 3(b). An individual may petition for
expungement of one of the enumerated felony offenses provided that the petitioner “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).
Here, the district court denied D.E.L.’s petition for expungement on the basis that
she was convicted of an offense that is not one of the 50 offenses on the list of offenses
eligible for expungement under the statute. D.E.L. challenges that determination. She
argues that her conviction is eligible because, while it is not a listed offense, she was
sentenced as if she had committed an eligible offense. D.E.L.’s conviction in this case was

6
for theft of an automobile valued at not more than $1,000 under Minn. Stat. § 609.52,
subd. 3(3)(d)(v). She acknowledges that this offense is not among the listed offenses set
out in Minn. Stat. § 609A.02, subd. 3(b).
D.E.L. points, however, to Minn. Stat. § 609A.02, subd. 3(b)(20), which identifies
the following as offen ses eligible for expungement: convictions under “section 609.52,
subdivision 3, clause (3)(a) (theft of $5,000 or less), or other theft offense that is sentenced
under this provision.”3 D.E.L. argues that, under the plain meaning of subdivision 3(b)(20),
her conviction constitutes an “other theft offense that is sentenced under this provision,”
and is thereby eligible for expungement.
She reasons that, because theft of property worth more than $1,000 but less than
$5,000 set out in Minn. Stat. § 609.52, subd. 3(3)(a), is explicitly expungable, the phrase
“other theft offense that is sentenced under this provision ,” Minn. Stat. § 609A.02,
subd. 3(b)(20), must refer to the other types of theft, namely the offenses set out in Minn.
Stat. § 609.52, subd. 3 (3)(b)-(d) (2012).4 To conclude otherwise, she argues, would
“effectively read the phrase ‘or other theft offense that is sentenced under this provision’
completely out of the statute.” We do not agree.

3 Minn. Stat. § 609.52, subd. 3(3)(a) (2012), provides for a sentence of not more than five
years for the crime of theft where the value of the property or services stolen is more than
$1,000 but less than $5,000.

4 Minn. Stat. § 609.52, subd. 3(3)(b)-(d), covers the theft of property of a lesser value, but
where, for example, the theft is of a controlled substance, the defendant has certain prior
convictions, or the theft involves property from a person or a corpse, involves a court record
or public funds, or as here the theft is of a motor vehicle.

7
We conclude that t he plain language of the phrase “other theft offense that is
sentenced under this provision” contained in Minn. Stat. § 609A.02, subd. 3(b)(20), refers
to theft offenses sentenced under the identified section of the theft statute —Minn. Stat.
§ 609.52, subd. 3(3)(a) . The applicable sections o f Minn. Stat. § 609.52, subd. 3(3) ,
provide as follows:
Subd. 3. Sentence. Whoever commits theft may be
sentenced as follows:
. . . .
(3) to imprisonment for not more than five years or to
payment of a fine of not more than $10,000, or both, if any of
the following circumstances exist:
(a) the value of the property or services stolen is more
than $1,000 but not more than $5,000; or
. . . .
(d) the value of the property or service s stolen is not
more than $1,000, and any of the following circumstances
exist:
. . . .
(v) the property stolen is a motor vehicle[.]

If the legislature had intended to include any felony-level theft offense that carried
the same sentence, the legislature could have just referenced subdivision 3(3) of Minn. Stat.
§ 609.52. In stead, subdivision 3(b)( 20) of the applicable section of the expungement
statute makes a specific reference to “section 609.52, subdivision 3, clause (3)(a)”—and
only to clause (3)(a)—and makes no reference to clauses (3)(b )-(d) even though they are
all governed by the sentence length set out in subdivision 3(3) of the theft statute. Minn.
Stat. § 609A.02, subd. 3(b)(20).
Given the specific reference to clause (3)(a) in s ection 609A.02, subdivision
3(b)(20) of the expungement statute, we cannot conclude that the phrase “other theft

8
offense” includes clause (3)(d)(v), the provision under which D.E.L. was sentenced for
theft of a motor vehicle.
We also do not believe that this interpretation renders the phrase “other theft offense
that is sentenced under this provision” meaningless. There are “other theft offenses” that
provide for sentencing under Minn. Stat. § 609.52, subd. 3(3)(a). The crime of insurance
fraud is one such example . The acts constituting in surance fraud fall under the more
general category of theft, and pursuant to Minn. Stat. § 609.611, subd. 3 (2020), whoever
commits insurance fraud is to be sentenced according to the monetary amount involved in
the crime as provided in Minn. Stat. § 609.52, subd. 3. Thus, insurance fraud involving an
amount that is more than $1,000, but not more than $5,000, would constitute an “other theft
offense that is sentenced under [subdivision 3(3)(a) of Minn. Stat. § 609.52].” Minn. Stat.
§ 609A.02, subd. 3(b)(20).
We acknowledge that the outcome may seem arbitrary but, because of the reference
to only clause (3)(a) in Minn. Stat. § 609A.02, subd. 3(b)(20), we are not free to interpret
this provision as broadly as D.E.L. is seeking. It is the legislature’s prerogative that certain
offenses be eligible for statutory expungement while others are not, and it is thereby beyond
the authority of this court to alter. State v. M.D.T., 831 N.W.2d 276, 282-83 (Minn. 2013);
see also Minn. Stat. § 645.16 (“When 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.”).
We therefore affirm the district court’s denial of D.E.L.’s petition for statutory
expungement.

9
II. The district court erred by not considering D.E.L.’s request for expungement
based on the court’s inherent authority.

In addition to statutory expungeme nt, Minnesota courts have inherent authority to
expunge criminal records. State v. Ambaye , 616 N.W.2d 256, 258 (Minn. 2000). This
authority derives from the Minnesota Constitution. State v. C.A. , 304 N.W.2d 353, 358
(Minn. 1981). However, the relief ava ilable is more limited than that which is available
based on statutory expungement, because “[t]he 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.” C.W.N., 906 N.W.2d at 552. Rather, courts have the
authority to “control court records . . . in order to reduce or eliminate unfairness to
individuals,” even if that unfairness does not rise to the level of a constitutional violation.
C.A., 304 N.W.2d at 358. Expungement based on inherent authority is permitted if it “will
yield a benefit to the petitioner commensurate with the disadvantages to the public from
the elimination of the record and the burden on the court in issuing, enforcing and
monitoring an expungement order.” Id. We review the district court’s decision of whether
to expunge criminal records for an abuse of discretion. State v. A.S.E., 835 N.W.2d 513,
517 (Minn. App. 2013).
D.E.L. argues that the district court erred by fail ing to consider her request to have
her records expunged based on the court’s inherent authority . D.E.L.’s petition for
expungement requests that the district court grant D.E.L.’s petition based on statutory
authority, but also states: “In the alternative , if the court does not consider my request for
a statutory expungement, I am requesting an expungement under the court’s inherent

10
authority.” At the hearing on the petition, D.E.L.’s counsel again requested that, if the
court determined that statutory expungement was not available, the court then consider the
petition for expungement based on its inherent authority. Counsel argued that the
unfairness to D.E.L. outweighed the benefit to the public of having notice of the record,
that D.E.L. had changed but was struggling to find employment and had been denied over
30 jobs based on the criminal record, and requested that the district court “change the record
to reflect more of who she is today instead of who she was back then and the place that she
was in then because she has changed.”
The district court order denying D.E.L.’s petition for expungement contain s no
reference to the request for expungement based on inherent authority. Rather, the order is
a standardized form on which the district court checked the box that states: “Petitioner’s
request for sealing/expunging of records is denied.” The district court judge then included
the following statement in the order: “Petitioner not eligible as offense not included in
eligible list.” After seeking a clarification of whether the district court’s denial included a
ruling on her request for expungement under the inherent authority of the court, the district
court reissued the same order, just adding a reference to Minn. Stat. § 609A.03, subd. 5(a),
under the heading of the order with no other changes. This reference is, again, to the
expungement statute and not to the court’s inherent authority.
In State v. H.A. , this court stated: “While we appreciate the informality of
expungement proceedings, we are unable to review whether a grant or denial of
expungement constitutes an abuse of discretion unless the district court makes findings or
determinations on the record regarding these factors.” 716 N.W.2d 360, 364 (Minn. App.

11
2006); see also A.S.E., 835 N.W.2d at 517 (reversing and remanding because the district
court failed to make findings on inherent -authority expungement); State v. K.M.M. , 721
N.W.2d 330, 335 (Minn. App. 2006) (reversing and remanding where the district court
denied a request for inherent -authority expungement but failed to make findings). Here,
the district court did not make findings on D.E.L.’s request for expungement based on the
court’s inherent authority, and we are therefore unable to review whether the district court
abused its discretion by denying her petition for inherent -authority expungement.
Accordingly, we reverse and remand to the district court to make findings on D.E.L.’s
request for expungement based on the court’s inherent authority.
Affirmed in part, reversed in part, and remanded.