SailorsAllen Law

Second Chance Law that is not a Second Chance

The Second Chance Law is not another streamable album from the Grammy Award Winning Chance the Rapper.  Instead, it is expungement.  Expungement is the legal equivalent of those devices in Men in Black, where Tommy Lee Jones wiped someone’s memory clean.  Except it is with your conviction and arrest.    The case is, State of Minnesota v. S.A.M, A15-0950.   Sam I am, pled guilty to a Felony Second Degree Burglary in 2003.  He got a stay of imposition and he received ten years of probation.   A stay of imposition or what we “cool” attorneys refer to as a Tyrion Lannister, as a “Stay of Imp,” allows a felony offense to become a misdemeanor if you successfully complete probation pursuant to Minn. Stat. §] 609.13).” No one refers it as a Tyrion Lannister by the way.  Just me in this blog.  I am sure it will catch on.   SAM was discharged from probation in 2008 and the offense was deemed to be a misdemeanor.

SAM tried in 2008 and 2011 to get that charge expunged and was denied.   SAM filed a third petition in January 2015, seeking to expunge the felony burglary conviction and two other non-felony convictions under the newly amended version of Minnesota Chapter 609A, which became effective January 1, 2015.  He argued that he qualified for expungement under Minn. Stat. §§ 609A.02, subd. 3 and 609A.03, because the conviction was deemed a misdemeanor.  This request was opposed by the State.  The Judge denied the request and treated it like a felony, which only allows for enumerated felonies to be expunged under Minn. Stat. § 609A.02, subd. 3(b).  For felonies, not on this list, the court can grant an expungement pursuant to their inherent-authority.  But SAM did not the benefit in granting the request outweighed the risk to public safety.  So that was denied as well.

So if this offense is a now a misdemeanor, why couldn’t SAM take advantage of the more liberal misdemeanor expungement laws?

Minn. Stat. § 609A.01 subdivision 3(a)(3) allows for an expungement for a petty misdemeanor or misdemeanor and the person moving for the expungement has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.   The so 2015-2008 is more than 2, so SAM wins, right?  No.  The MNSC says, “A feature unique to a stay of imposition is that, upon a person’s successful completion of probation, a felony or gross misdemeanor conviction may be reduced in degree[.]” State v. Martin, 849 N.W.2d 99, 102 (Minn. App. 2014); Minn. Stat. § 609.13, subd. 1(2).  Since subdivision 3(a)(3) says a person who “was convicted of or received a stayed sentence for a misdemeanor may seek expungement.  Since, here, the district court entered judgment for a felony burglary and it was later deemed a misdemeanor, he received a stay of sentence for a felony.  So he cannot seek relief under the misdemeanor section.

Let me see if I can get this straight?  A law designed to give people second chances for something they did in the past will not give someone a chance to take advantage of it because of what they did in the past?   That seems fair.  The conviction at the time of the sentencing apparently outweighs everything that SAM did since 2003.

With policy and fairness not on their side, the court hides behind case law.  Stupid court.  In State v. Moon, the defendant was convicted of felony theft and the district court stayed imposition of sentence. 463 N.W.2d 517, 518 (Minn. 1990). The district court later discharged the defendant from probation and deemed the offense a misdemeanor pursuant to section 609.13, subd. 1(2), but imposed a firearm restriction.  They upheld the firearm restriction because of what Moom was convicted of at the time of sentencing.  I would argue getting a record expunged is different than Warren possessing a gun, but what do I know?  However, in Franklin, the Minnesota Supreme Court considered whether a felony conviction that has been deemed a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1 (2014), before an offender is sentenced on the current offense, can be considered when determining whether the offender “has five or more prior felony convictions” under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2014). State v. Franklin, 861 N.W.2d 67, 68-69 (Minn. 2015).  The court reversed this and said offenses that were now misdemeanors cannot be used for career offender felony convictions.

The statute at issue in Franklin was directed toward a career-offender who “has five or more prior felony convictions,” the felony- expungement statute refers to a petitioner who “was convicted of or received a stayed sentence for a felony violation.” Compare id. at 68 (citing Minn. Stat. § 609.1095, subd. 4(2014))withMinn.Stat.§609A.02,subd.3(a)(5).(Emphasis added.)  So present tense of “convictions” for Franklin versus the past tense of “was convicted” for SAM.  So great job legislature and the court, the career offender gets a benefit over the expunger on two offenses that are treated exactly the same.  The final nail in the coffin was the citing of Great River Energy v. Swedzinski, 860 N.W.2d 362, 367-68 (Minn. 2015) (ruling that reviewing court may not rely on policy arguments to insert language into an otherwise plain-and-unambiguous statute).  That is the legislator’s job.

So here is the deal, MN legislature, let me compliment you for a second.  The expungement law was a great law.  You are helping a lot of people.  You deserve credit for that.  But, and this is a Sir Mix a Lot sized but, it makes no sense for the crime level to be determined at the time of the sentencing when the point of the law is to help people who made mistakes in the past.  Especially when compared and contrasted with the career offender who gets the benefit of convictions being in the present sense.   The more I think about that, the more I think the MNSC is showing you the light by making the side by side comparison.  The best part is it is an easy fix.  Change “was convicted of” to “convictions.”  Maybe Chance the Rapper will write a song about you.