Opinion
A21-1179
03-15-2022
State of Minnesota, Respondent, v. A. D. B., Appellant.
Hennepin County District Court File No. 27-CR-07-127152
Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Smith, John, Judge. [*]
ORDER OPINION
Jennifer L. Frisch, Judge BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant A.D.B. seeks review of the district court's denial of his fourth petition to expunge convictions of theft by swindle over $35,000. Minn. Stat. § 609.52, subds. 2(4), 3(1) (2004) (theft statute).
A.D.B. also seeks expungement of several driving-related offenses, but the petition did not set forth the basis for expungement for these offenses. The district court did not address the request to expunge the driving offenses, and A.D.B. does not explain on appeal why expungement of these offenses is appropriate.
2. In February 2006, A.D.B. was hired as a loan officer by a mortgage brokerage on a part-time basis. A.D.B. submitted false mortgage-loan applications on behalf of straw buyers to purchase homes for inflated prices, selling four homes that he owned for a windfall profit of $115,100. See State v. A.D.B., No. A15-0224, 2015 WL 7357183, at *1 (Minn.App. Nov. 23, 2015).
3. On August 12, 2008, A.D.B. accepted respondent State of Minnesota's offer to plead guilty to four counts of theft by swindle over $35,000. The plea agreement provided that the state would dismiss the remaining charges; A.D.B. would receive a downward durational departure, limiting his prison sentence to 24 months; A.D.B. would cooperate with the state's investigation into other mortgage-fraud prosecutions concerning his brokerage; and the Hennepin County Attorney's Office would not oppose expungement at a later date, provided that A.D.B. satisfy certain conditions. On October 6, 2008, the district court accepted A.D.B.'s guilty plea and sentenced him to 24 months' imprisonment.
4. A.D.B. has submitted three previous expungement petitions. The district court denied each petition.
5. In March 2021, A.D.B. submitted the underlying expungement petition, his fourth petition, wherein he argued that he qualified for expungement because: (1) he was convicted of a gross misdemeanor and had not been convicted of a new crime since, pursuant to Minn. Stat. § 609A.02, subd. 3(a)(4) (2020); and (2) he qualified for expungement under the inherent authority of the judiciary. The Minnesota Bureau of Criminal Apprehension objected to the expungement petition.
6. In June 2021, the district court held an expungement hearing and thereafter denied A.D.B.'s petition for expungement.
7. On appeal, A.D.B. argues that the district court abused its discretion by denying his expungement petition when clear and convincing evidence demonstrates that he had rehabilitated, suffered hardship, and would benefit from sealing the record. We review a district court's order denying expungement for an abuse of discretion. State v. C.W.N., 906 N.W.2d 549, 551 (Minn.App. 2018). We review the district court's interpretation and application of the expungement statute de novo. Id. at 552.
8. First, A.D.B. is not entitled to statutory expungement. A.D.B. mistakenly argues in his expungement petition that he is entitled to expungement because he was convicted of a gross misdemeanor. Minn. Stat. § 609A.02, subd. 3(a)(4) (providing that an appellant can petition for statutory expungement when he "was convicted of . . . a gross misdemeanor and has not been convicted of a new crime for at least four years"). But A.D.B. pleaded guilty to and was convicted of felony offenses, not gross misdemeanors.
9. Even so, the offenses that A.D.B. was convicted of are not eligible for expungement under the statutory felony provision. Minn. Stat. § 609A.02, subd. 3(b) (2020) (enumerating specific felonies that may be expunged); see id., subd. 3(b)(20) (qualifying certain theft crimes for expungement when the theft concerned, at most, $5,000). A.D.B. is therefore not entitled to statutory expungement.
10. Second, we decline to evaluate whether the district court abused its discretion by denying the request for judicial inherent-authority expungement because A.D.B. did not produce an adequate record to enable appellate review. The appellate record includes "[t]he documents filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. Although the appellate record contains the documents and exhibits filed in the district court, the appellate record does not contain a transcript of the proceedings held in June 2021.
11. A.D.B. has the duty to order any transcripts "deemed necessary for inclusion in the record." Minn. R. Civ. App. P. 110.02, subd. 1(a); see Noltimier v. Noltimier, 157 N.W.2d 530, 531 (Minn. 1968) (stating "appellant [has] the burden to provide an adequate record" in order to "enable [the appellate court] to review questions he desires to raise on appeal"); Truesdale v. Friedman, 127 N.W.2d 277, 279 (Minn. 1964) ("[T]he party seeking review has the duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors and all matters necessary for consideration of the questions presented.").
12. A.D.B. elected to not provide us with the transcript of the district court hearing on his expungement petition. Without a transcript, we are unable to evaluate whether the district court made findings at the June 2021 expungement hearing in addition to those findings set forth in its written order or whether the order contains clearly erroneous factual findings. See Gail v. State, 732 N.W.2d 243, 247 (Minn. 2007) ("Without a transcript, we cannot analyze the merits of [appellant's] claim."). As such, in order to review the district court's expungement order, it is imperative that we have the full record-including a transcript of the expungement hearing.
13. Because we do not have a transcript of the June 2021 expungement hearing, we cannot review the merits of the district court's analysis. See id.
IT IS HEREBY ORDERED:
1. The district court's order denying A.D.B.'s expungement petition is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
Dated: 3/14/22
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.