February 2020

FIREARMS

EXPUNGEMENT BY INHERENT AUTHORITY ITSELF DOES NOT SATISFY FEDERAL “EXPUNGEMENT” REQUIREMENT FOR REINSTATEMENT OF RIGHT TO CARRY FIREARMS:

In 2007, the district court granted Respondent’s request to expunge his 1996 domestic assault conviction under the court’s inherent expungement authority. From 2008 until 2018, Respondent was granted a permit to carry a firearm, but his application was denied due to his 1996 conviction. The district court denied Respondent’s petition for writ of mandamus, concluding the sealing of Respondent’s 1996 conviction did not remove or eliminate the conviction as defined under federal law. The Court of Appeals reversed, finding the 2007 expungement order met the plain meaning of “expunged” in the federal law, 18 U.S.C. § 921(a)(33)(B)(ii), and the Sheriff appealed.

A sheriff may not issue a permit to carry a firearm to a person prohibited from possessing a firearm under Minn. Stat. § 624.713 or “any federal law.” Minn. Stat. § 624.713, subd. 1(10)(viii) specifically prohibits “a person who… is disqualified from possessing a firearm under [18 U.S.C. § 922(g)(9)]” from possessing a firearm. 18 U.S.C. § 922(g)(9) prohibits any person convicted of a misdemeanor crime of domestic violence from possessing firearms. However, under 18 U.S.C. § 921(a)(33)(B)(ii), a person is not considered convicted if the conviction was expunged or set aside. Because Minnesota law incorporates federal law, the federal meaning of expungement must be applied to determine whether a conviction of a misdemeanor crime of domestic violence was expunged so as to reinstate firearm rights in Minnesota.

The federal statute does not define “expungement,” but legal dictionaries define it as “[t]o remove from a record, list, or book; to erase or destroy.” The 2007 expungement order here was issued pursuant to the district court’s inherent expungement authority and sealed only the judicial records relating to Respondent’s 1996 conviction. The conviction was not removed, erased, or destroyed form the executive branch records relevant to considering his application to possess a firearm, such as the records held in the National Instant Background Check System and the Minnesota Crime Information System. Thus, Respondent’s right to carry a firearm in Minnesota cannot be reinstated.

The Supreme Court does note, however, that since Respondent’s 2007 expungement, statutory expungement has been specifically provided for by the legislature, including statutory expungement of misdemeanor crimes of violence. The Court declines to express an opinion as to whether statutory expungement satisfies 18 U.S.C. § 921(a)(33)(B)(ii)’s expungement requirement. Bergman v. Caulk, 938 N.W.2d 248 (Minn. Feb. 5, 2020).

AMENDMENT REMOVING THEFT OF MOTOR VEHICLE FROM LIST OF CRIMES OF VIOLENCE DOES NOT APPLY RETROACTIVELY TO LIFT APPELLANT’S LIFETIME BAN ON POSSESSING A FIREARM

Appellant was adjudicated delinquent for felony theft of a motor vehicle in 1998, when that offense was considered a crime of violence under Minn. Stat. § 624.712, subd. 5, making Appellant ineligible to possess a firearm for ten years. In 2003, the legislature created a lifetime ban on possessing a firearm once a person is deemed ineligible, which applied retroactively and applied to Appellant. The definition of “crime of violence” was changed in 2014 to remove theft of a motor vehicle, but the amendment was not retroactive. Appellant was issued a permit to carry in March 2017, but the permit was voided in July 2018 after the sheriff’s office discovered Appellant’s juvenile delinquency adjudication. The district court denied Appellant’s petition for a writ of mandamus to order the sheriff to issue him a permit to carry, and Appellant appealed, arguing the 2014 amendment rendered him eligible to possess a firearm.

The Court of Appeals finds the language of the 2014 amendment is clear and unambiguous in its application to only crimes committed on or after the amendment’s effective date, August 1, 2014. Appellant’s theft of a motor vehicle offense occurred before this date, and is, therefore, still considered a crime of violence. Tapia v. Leslie, No. A19-0627, 2020 WL 770063 (Minn. Ct. App. Feb. 18, 2020).

SENTENCING

DISTRICT COURT ERRED BY IMPOSING A GREATER-THAN-DOUBLE DURATIONAL DEPARTURE BASED ON SINGLE, “NON-SEVERE” AGGRAVATING FACTOR

Appellant was convicted of three counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct for abusing his daughter when she was 10 to 12 years old. His daughter has a chromosomal defect that causes cognitive developmental delays. She reported the sexual and physical abuse, along with her parents’ failure to feed and clean her or the house regularly, to a school counselor. Appellant’s wife, the mother of their daughter, was also present during instances of sexual abuse. The district court sentenced Appellant on two first-degree convictions, imposing greater-than-double durational departures on both, resulting in two 360-month consecutive sentences. The departures were based on the daughter’s vulnerability and the repeated and extended abuse of the daughter, which the court found demonstrated particular cruelty. The Court of Appeals affirmed the district court’s imposition of sentences on the two first-degree convictions, but found the 720-month cumulative sentence excessive. Specifically, it found that the sentence on one count was appropriate, and that a durational departure on the second count was allowed, but the more than double departure was not appropriate in Appellant’s case.

The Supreme Court agrees with the Court of Appeals that the district court’s greater-than-double upward durational departure was proper as to count one, but not count two. Departures are warranted under the sentencing guidelines “only when substantial and compelling circumstances are present in the record,” Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003), that is, when there is evidence demonstrating that “the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2009).

Focusing on only the counts of conviction, and not other conduct relating to Appellant’s other offenses, the court agrees that the record shows Appellant acted with particular cruelty as to count one, based on Appellant’s multiple forms of penetration during the incident underlying count one. However, the court disagrees with the district court that Appellant acted with particular cruelty when committing the offense described in count two, as that incident involved only one form of sexual penetration or contact. Next, the court finds that Appellant’s daughter’s cognitive delays were substantial at the time of Appellant’s abuse and, as such, concludes that the district court did not abuse its discretion in finding that his daughter was particularly vulnerable as it relates to a departure on both counts one and two.

While aggravating factors exist to support a durational departure, the court finds that they do not justify the greater-than-double durational departures imposed by the district court. Generally, double the presumptive guideline sentence is the upper limit for upward durational departures, except in “rare cases in which the facts are so unusually compelling,” State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981), involving “severe aggravating factors.” State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009). As to count one, the court finds that the presence of multiple aggravating factors, both Appellant’s daughter’s particular vulnerability and Appellant’s particular cruelty, when compared to prior similar cases, warrants a greater-than-double durational departure imposed by the district court on that count.

However, the court finds the district court abused its discretion by imposing the greater-than-double durational departure on count two. Although Appellant’s daughter’s vulnerability is an aggravating factor, the court finds that it is not a severe aggravating factor. The court compares the facts underlying count two with other cases, finding that it is much different from those in which a greater-than-double durational departure was affirmed and similar to those in which such departures were reversed. The court reverses Appellant’s sentence on count two, but recommends that, when resentencing, the district court impose a harsh sentence given Appellant’s “horrific” conduct, and highlights that the district court has the discretion to impose a sentence on count two of up to double the upper limit of the presumptive range. State v. Barthman, 938 N.W.2d 257 (Minn. Feb. 5, 2020).

TRAFFIC

MINN. STAT. § 169.19, SUBD. 1(b), DOES NOT REQUIRE DRIVER TURNING LEFT TO TURN INTO INNTERMOST LANE

Appellant was observed turning from a southbound left-turn-only lane into the outermost, right lane of two eastbound lanes of travel. Police stopped Appellant and he was ultimately arrested for DWI and his driver’s license revoked. The district court affirmed the revocation, concluding Minn. Stat. § 169.19, subd. 1(b), required Appellant to turn into the innermost lane, and that Appellant also violated Minn. Stat. § 169.18, subd. 7(a), by slightly crossing the lane line between the two eastbound lanes of travel as he turned into the outermost lane.

The Court of Appeals disagrees with the district court, ultimately concluding that Appellant did not violate either traffic statute, leaving no reasonable articulable suspicion for the stop, and remanding to the district court to rescind Appellant’s driver’s license revocation. First, the Court holds that turning left into the outermost lane of traffic does not violate Minn. Stat. § 169.19, subd. 1(b). The statute states that after entering the intersection to make a left turn, “the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered.” The court finds this portion of the statute unambiguous and silent as to which lane to the right of the roadway a driver must enter. As such, the court finds it not an objectively reasonable mistake of law for the officer here to stop Appellant’s vehicle for turning into the outermost lane.

Next, the Court also finds that the district court erred in finding a reasonable articulable suspicion that Appellant violated Minn. Stat. § 169.18, subd. 7(a), which states that “a vehicle shall be driven as nearly as practicable within a single lane and shall not be moved from the lane until the driver has first ascertained that such movement can be made with safety.” The record shows Appellant drove directly into the outermost lane, meaning he never travelled in more than a single lane, and that no other vehicles were present, indicating any lane change was not done unsafely. Birkland v. Comm’r Pub. Safety, No. A19-0937, 2020 WL 770067 (Minn. Ct. App. Feb. 18, 2020).