                           This opinion will be unpublished and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
                                      A16-0955

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                        M. J. R. D.,
                                        Appellant.

                                  Filed February 6, 2017
                                         Affirmed
                                     Schellhas, Judge

                             Washington County District Court
                               File No. 82-K5-93-004038

Lori Swanson, Attorney General, St. Paul, Minnesota, and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Paul E. Overson, Steven M. Coodin, Coodin & Overson, PLLP, Lake Elmo, Minnesota
(for appellant)

         Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant asks us to reverse the district court’s denial of his second expungement

petition. We affirm.
                                         FACTS

       On August 24, 1993, appellant M.J.R.D. grabbed a woman’s arm and breast and

pushed her against a wall during an argument. Respondent State of Minnesota charged

M.J.R.D. with fourth- and fifth-degree criminal sexual conduct and fifth-degree assault

(harm). M.J.R.D. pleaded guilty to fifth-degree assault as a misdemeanor and was

sentenced to one year of supervised probation; the state dismissed the criminal sexual

conduct charges, and the sentencing court did not order M.J.R.D. to register as a predatory

offender. M.J.R.D. was discharged from probation about a year later.

       In March 2008, M.J.R.D. filed a petition to expunge the records relating to his 1993

misdemeanor assault conviction. The relevant county agencies and the Minnesota Bureau

of Criminal Apprehension (BCA) opposed the petition. The district court denied the

petition. On December 9, 2015, M.J.R.D. filed a second petition to expunge the records

relating to his 1993 misdemeanor assault conviction. The BCA opposed the petition, while

the relevant county agencies took no position on the petition. The district court denied the

petition.

       This appeal follows.1

                                     DECISION

       We review a district court’s denial of an expungement petition for an abuse of

discretion. State v. M.D.T., 831 N.W.2d 276, 279 (Minn. 2013). “Under an abuse of

discretion standard, we will not overrule the district court unless the court exercised its


1
  The relevant county agencies take no position on this appeal; the BCA has filed nothing
in connection with this appeal.

                                             2
discretion in an arbitrary or capricious manner or based its ruling on an erroneous

interpretation of the law.” State v. R.H.B., 821 N.W.2d 817, 822 (Minn. 2012). Reversal

also is warranted if the district court’s ruling “is against the facts in the record,” but

“findings of fact will not be disturbed unless they are clearly erroneous.” Id. at 822 & n.3

(quotation omitted).

       In his expungement petition, M.J.R.D. claimed that he is entitled to expungement

under Minn. Stat. § 609A.02, subd. 3 (2014), which provides that a petitioner may be

eligible for expungement of “all records relating to an arrest, indictment or information,

trial, or verdict” if “the petitioner was convicted of . . . a . . . misdemeanor and has not been

convicted of a new crime for at least two years since discharge of the sentence for the

crime.” “There are two bases for expungement of criminal records in Minnesota: Minn.

Stat. ch. 609A . . . and the judiciary’s inherent authority.” M.D.T., 831 N.W.2d at 279. In

his petition, M.J.R.D. did not seek to invoke the judiciary’s inherent authority, and the

district court did not address its inherent authority to expunge criminal records in its order

denying the petition. We therefore do not address M.J.R.D.’s repeated references to

inherent-authority expungement in his appellate brief. See In re Welfare of J.J.P., 831

N.W.2d 260, 263 & n.2 (Minn. 2013) (addressing only statutory expungement where

juvenile “petitioned the district court for expungement solely under the court’s statutory

authority” and “did not invoke the court’s inherent authority to order expungement”).

       M.J.R.D. argues that the district court’s denial of his second expungement petition

was an abuse of discretion because it was based on the court’s erroneous interpretation of

Minn. Stat. § 609A.02, subd. 4 (2014). Under Minn. Stat. § 609A.02, subd. 4, “[r]ecords


                                               3
of a conviction of an offense for which registration is required under section 243.166 may

not be expunged.” And under Minn. Stat. § 243.166, subd. 1b(a) (2014), “[a] person shall

register” as a predatory offender if he “was charged with . . . a felony violation of” an

enumerated offense, including fourth-degree criminal sexual conduct, “and convicted of

. . . that offense or another offense arising out of the same set of circumstances.” The district

court accordingly reasoned that, because M.J.R.D.’s misdemeanor assault conviction arose

out of the same set of circumstances as his charge of fourth-degree criminal sexual conduct,

the assault conviction triggered a registration requirement under section 243.166, which in

turn prohibited expungement. M.J.R.D. argues to the contrary that, because the sentencing

court had the implicit authority to, and did in fact, waive his duty to register as a predatory

offender, the expungement prohibition does not apply.

       “Statutory interpretation is a question of law, which we review de novo.” J.J.P., 831

N.W.2d at 264; see also State v. D.R.F., 878 N.W.2d 33, 35 (Minn. App. 2016)

(“Interpretation of the expungement statute is a legal question subject to de novo review.”

(quotation omitted)). “The object of all interpretation and construction of laws is to

ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2016). “In

interpreting statutory language, we give words and phrases their plain and ordinary

meaning.” J.J.P., 831 N.W.2d at 264. “Our first step in interpreting a statute is to examine

the text of the statute to determine whether the language is ambiguous.” Id. “When the

statutory language is clear and free of ambiguity, we enforce the plain language of the

statute and do not explore its spirit or purpose.” Id.




                                               4
       Again, the expungement statute provides that “[r]ecords of a conviction of an

offense for which registration is required under section 243.166 may not be expunged.”

Minn. Stat. § 609A.02, subd. 4. We have found no published or unpublished case

interpreting this statutory language. But we have interpreted nearly identical language from

the Minnesota sex offender community notification act, Minn. Stat. § 244.052 (1996 &

Supp. 1997). See In re Risk Level Determination of C.M., 578 N.W.2d 391, 394 (Minn.

App. 1998) (considering statutory definition of “sex offender,” for purposes of community

notification, as “a person who has been convicted of an offense for which registration under

section 243.166 is required” (quoting Minn. Stat. § 244.052, subd. 1(4) (1996)) (quotation

marks omitted)). We summarized the interpretive dispute in C.M. as follows:

                       Relator contends that the phrase “convicted of an
              offense for which registration * * * is required” in section
              244.052, subdivision 1(4), means that notification applies only
              where the offender is convicted of an offense that
              automatically results in registration because the offense is
              specifically listed in section 243.166. The state argued below
              . . . that the notification statute applies to any offender required
              to register under section 243.166, including those convicted of
              an unlisted offense “arising out of the same set of
              circumstances” as a charged, listed offense. Relator argues that
              if the legislature intended that result, it would simply have
              defined a sex offender as “a person required to register under
              section 243.166.” On appeal, the state argues that the
              legislature inserted the “convicted of an offense” language to
              avoid application of the notification statute to juveniles, who
              are required to register after being “adjudicated delinquent”
              rather than “convicted.”

Id. at 395. After stating that “both parties’ interpretations are reasonable” and that the

relevant statutory language “is, therefore, ambiguous in its application to relator,” we

ultimately concluded:


                                               5
              [T]he state’s interpretation of section 244.052 to permit
              community notification where an offender is charged with, but
              not convicted of, a sex offense, would result in a violation of
              state and federal guarantees of due process. Accordingly, we
              adopt relator’s alternate construction, the constitutionality of
              which is not challenged before us, under which notification
              applies only to offenders convicted of an offense specifically
              listed in section 243.166, subdivision 1.

Id. at 395–96, 399.

       Here M.J.R.D. raises no constitutional argument against the district court’s

interpretation of the expungement statute. Neither does M.J.R.D. take the equivalent of the

relator’s interpretive position in C.M. by arguing that the expungement prohibition applies

only where the petitioner was “convicted of an offense that automatically results in

registration because the offense is specifically listed in section 243.166” and does not apply

where, as here, the petitioner was “convicted of an unlisted offense ‘arising out of the same

set of circumstances’ as a charged, listed offense.” See id. at 395. Instead, M.J.R.D. takes

something like the state’s interpretive position in C.M., essentially arguing that the

expungement prohibition applies to “[petitioners] required to register under section

243.166, including those convicted of an unlisted offense ‘arising out of the same set of

circumstances’ as a charged, listed offense.” See id. And M.J.R.D. implicitly concedes that

his misdemeanor assault conviction arose out of the same set of circumstances as his

fourth-degree criminal sexual conduct charge. Still M.J.R.D. insists that the expungement

prohibition does not apply to him because “he was never to this date required by anyone to

register.”




                                              6
       M.J.R.D. thereby attempts to shift our focus from the relevant question, whether

section 243.166 designates his offense as one triggering the registration requirement, to a

different question entirely—namely, whether M.J.R.D. ever was directed to register as a

predatory offender in connection with his offense. This shift in focus is inconsistent with

the plain language of the expungement statute, which generally restricts the availability of

expungement based on the nature of the offense of conviction rather than on the specific

consequences that may flow from conviction of the offense. See Minn. Stat. § 609A.02,

subd. 4 (“Records of a conviction of an offense for which registration is required under

section 243.166 may not be expunged.”); see also id., subd. 3 (providing that expungement

may be available if “petitioner was convicted of or received a stayed sentence for a petty

misdemeanor,” if “petitioner was convicted of or received a stayed sentence for a gross

misdemeanor,” or if “petitioner was convicted of or received a stayed sentence for a felony

violation of [one of 50 enumerated] offense[s]”); cf. State v. S.A.M., 877 N.W.2d 205, 208–

09 (Minn. App. 2016) (concluding that statutory expungement was not available to

petitioner whose nonenumerated felony conviction ultimately was deemed a misdemeanor

by operation of law), review granted (Minn. May 31, 2016).

       In sum, even if we accept M.J.R.D.’s assertion that the sentencing court waived his

duty to register as a predatory offender, any such waiver was a then-authorized

modification of section 243.166’s registration requirement, which M.J.R.D. implicitly




                                             7
concedes was triggered by his offense.2 The plain language of Minn. Stat. § 609A.02, subd.

4, prohibits expungement under these circumstances.

       Affirmed.




2
  The duty to register as a predatory offender originally was not triggered by conviction of
“another offense arising out of the same set of circumstances” as an enumerated offense.
See 1991 Minn. Laws ch. 285, § 3, at 1325–26 (enacting registration statute without quoted
language or its equivalent). The quoted language was added to the registration statute by
an amendment with an effective date of August 1, 1993, fewer than 90 days before
M.J.R.D.’s sentencing date. 1993 Minn. Laws ch. 326, art. 10, § 1, at 2090. The sentencing
court’s silence on M.J.R.D.’s duty to register, then, may be explained by inadvertent
omission rather than by intentional waiver.

                                             8
