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Supreme Court limits expungement eligibility

Minnesota’s much-ballyhooed “Second Chance Law” doesn’t give second chances to certain types of felons, even those whose convictions were subsequently converted to misdemeanors.

That was the ruling from a sharply divided Minnesota Supreme Court, which on Wednesday dashed the hopes of a Rochester man who hoped to seal the executive and judicial branch records stemming from a burglary he committed as a 22-year old.

The main issue in the appeal: Who benefits from the liberalized expungement law that the then DFL-controlled Legislature enacted in 2014?

By a 4-3 margin, the Supreme Court decided that the Second Chance Law does not apply in cases like that of the appellant, “S.A.M.,” who, after pleading guilty to aiding and abetting second-degree burglary, received a stay of imposition on his sentence. Under Minn. Stat. 609.13, that conviction was “deemed to be” a misdemeanor once S.A.M. satisfied the conditions of his probation and, therefore, presumably opened the door for an expungement petition.

But in affirming the earlier decisions of the Court of Appeals and Third Judicial District Chief Judge Jeffrey Thompson, the high court ruled that S.A.M. was still not eligible for relief under the Second Chance Law because he “was convicted of a felony” and that felony – second degree burglary – is not among the 50 low-level felonies the law classifies as potentially expungable.

In the majority’s view, the outcome was dictated by both the language and the logic of the statute, as well as the court’s past case law.

Writing for the majority, Justice G. Barry Anderson noted that if S.A.M. had been be permitted to proceed with his petition as if he had pleaded guilty to a misdemeanor, the law only required he wait two years. On the other hand, Anderson wrote, had S.A.M. been convicted of any of the 50 felonies expungable felonies covered by the statute, he would be subjected to the statute’s five-year waiting period to petition for relief.

“The Legislature could not have intended that non-enumerated felonies could have the same waiting period as misdemeanors and, consequently, be eligible for expungement earlier than less serious enumerated felonies and gross misdemeanors,” wrote Anderson wrote.

In a dissent, Justice David Lillehaug responded that such an outcome is not illogical since “it would not open the door for all former felons, but only for someone like S.A.M. whose sentence was stayed and who successfully completed probation.”

And even then, Lillehaug added, S.A.M. would have to clear the hurdle of demonstrating that he was “worthy of the extraordinary remedy of expungement.”

Joined in the dissent by Justices Margaret Chutich and Anne McKeig, Lillehaug faulted the majority for focusing its interpretation of the statute on the moment of conviction rather than the status of his conviction at the time of the petition.

“By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result,” he wrote.

The dissent concluded by urging that the Legislature “clarify the statute” and “reopen this door.”

David Liebow, the attorney for S.A.M., said he doubts that will happen any time soon, noting that
Republicans now control both chambers of the Legislature.

“The prospect for progress on that front really took a hit on an Election Day,” opined Liebow, a principle at the Rochester law firm Liebling & Liebow (where his partner is a DFL state representative, Tina Liebling).

How big is the pool of people whose expungement options will be curtailed by the ruling?

Liebow said it’s difficult to say with certainty but that the pool is large.

“It’s safe to say there were many thousands of people who had some hope for expungement before today and the Supreme Court has taken that away,” Liebow said.

In a joint amicus brief, the now-defunct Council on Crime and Justice – joined by the State Board of Public Defense, the Volunteer Lawyers Network, and the Minnesota Association of Criminal Defense Lawyers – opined that “a large number of people” will be affected because so many courts in Minnesota rely on stays of imposition to resolve felony cases.

Over the five-year period from 2008 to 2012, the amici noted, district court judges across the state granted more than 26,000 stays of imposition. According to figures from the Sentencing Guidelines Commission, that constituted about 36 percent of all felony sentencing cases over the period.

James Spencer, the Senior Assistant Olmstead County Attorney who argued the state’s case at the Supreme Court, said he is skeptical that the court’s decision would have the sort of impact suggested by those numbers.

“I think the amicus wanted to make an issue where I’m not sure there is one,” he added.

For one thing, Spencer explained, most felony cases that culminate with a stay of imposition involve the very sorts of lower level crimes the Second Chance Law expressly classifies as expungable. Although practices vary between jurisdictions, he added, the more serious felonies are likely to be resolved with a stay of execution and therefore are not affected by the court’s holding.

Spencer, who is in charge of responding to all his office’s expungement petitions, was also dismissive of complaints that the Second Chance Law was so poorly drafted that it’s not always easy to know who can petition for relief.

And with Wednesday’s ruling, he added, “I don’t think there are any serious questions about who can apply.”

In Spencer’s view, the main challenge with the law has been getting judges up to speed on its requirements.

“The language of the statute is that this is an extraordinary remedy. Defendants have to make a clear and convincing showing about the benefits to them of receiving an expungement versus the cost to the public,” he said. “I think a lot of courts have interpreted it to mean, ‘If you can apply for an expungement, you should get it.’”

Liebow, not surprisingly, has an alternate take on the efficacy of the law, which he characterized as “a mixed success.”

For some individuals looking to shuck off misdemeanor records, he said, the law has provided much-needed relief. But he said the law’s ambiguities extend beyond the now-resolved issue of how it applies to a felony conviction that is later converted to a misdemeanor.

“There are a lot of little things, as practice issue or a legal issue, where nobody knows what to do,” Liebow said. He cited one example that came up recently in discussions with his fellow defense-side practitioners.

“The law says a verdict of not guilty by mental illness is not a resolution in the petitioner’s favor. But it doesn’t say what is,” Liebow said. “If I get acquitted of misdemeanor theft by reason of mental illness, is that more akin to a diversion? Or is more akin to a conviction? What’s the standard to be used?”

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