Charles Gordon Long, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-9

Charles Gordon Long,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 5, 2003

Affirmed; motion granted

Robert H. Schumacher, Judge

Goodhue County District Court

File No. K4941717

Charles G. Long, Post Office Box 122, Red Wing, MN 55066 (pro se appellant)

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Stephen Betcher, Goodhue County Attorney, Christopher J. Schrader, Assistant County Attorney, 454 West Sixth Street, Red Wing, MN 55066 (for respondent)

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D  O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Charles Gordon Long challenges the denial of his motion to expunge all records of criminal sexual conduct charges brought against him beginning in 1995.  We affirm.

FACTS

            In early December 1994, police in Kenyon, Minnesota, received a citizen's tip that Long was engaged in sexual relationships with underage boys.  Police interviewed one of the boys, D.G.B., who told them that he and Long had engaged in sex acts and that he believed Long had done so with other boys as well.  Based on this information, police charged Long with criminal sexual conduct in the third degree.  The charge was later amended to attempted criminal sexual conduct in the fourth degree.

            On January 13, 1995, Long pleaded guilty.  Long was allowed to withdraw the plea at sentencing, however, because he had not previously been informed of the mandatory five-year term of conditional release that would attach to his sentence. 

            On February 24, 1995, Long appeared before the court without counsel and entered an Alford-type guilty plea to the same charge.  The court accepted the plea and Long was sentenced accordingly.  Two years later, Long petitioned for postconviction relief, alleging among other things, that he had been denied adequate access to counsel.  The petition was granted, Long's guilty plea and sentence were vacated, and the complaint was reinstated.

            It appears that the parties entered into plea negotiations immediately thereafter, and an omnibus hearing was never held.  Long agreed to plead guilty to fifth-degree assault.  In return, the state dismissed the complaint and re-charged the crime as fifth-degree assault.  The court accepted this agreement, and Long pleaded guilty to fifth-degree assault. 

            In June 2002, Long moved to have all records of the sex charge expunged.  Long argued that all matters involving the sex charge had been resolved in his favor and should be expunged pursuant to Minn. Stat. § 609 A. 02, subd. 3 (2002).  The district court denied the motion, reasoning that the fifth-degree assault charge arose from the same factual basis as the sex charge.  There was no finding that Long was not guilty of the sex charge, such as an acquittal or outright dismissal; therefore, the matter had not been resolved in his favor, and expungement was not warranted.  The district court also noted that the public's interest in maintaining a record of the charge outweighed any adverse effect on Long.

            Long moved for a new trial or amended findings on the expungement issue.  He argued that the district court misapplied the law, and alternatively, that the refusal to expunge violated the terms of his plea agreement and he should be permitted to withdraw that plea.  The motion was denied.

D E C I S I O N

            The construction and interpretation of a statute is a question of law, which this court reviews de novo.  State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000).  Minn. Stat. § 609 A. 02, subd. 3 (2002) states that

a petition may be filed * * * to seal all records relating to an arrest, indictment, or information, trial, or verdict * * * if all pending actions or proceedings were resolved in favor of the petitioner.

Whether all proceedings were resolved in the appellant's favor is a question of law this court reviews de novo.  State v. Davisson, 624 N.W.2d 292, 295 (Minn. App. 2001), review denied (Minn. May 15, 2001).  Once the petitioner has met the legal threshold of showing that all matters were resolved in his favor,

the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record. 

Minn. Stat. § 609 A. 03, subd. 5(b) (2002). 

            Long argues that there was never a finding of probable cause with respect to the sex-crime charge.  He argues that because that complaint was ultimately dismissed without a finding of probable cause, the matter was resolved in his favor.  We disagree.  It is clear that a criminal defendant may plead guilty to an offense without an omnibus hearing or other formal determination of probable cause.  See, e.g. Doughman v. State, 351 N.W.2d 671, 673 (Minn. App. 1984) (defendant waived his right to omnibus hearing and pleaded guilty), review denied (Minn. Oct. 16, 1984).  The fact that an omnibus hearing was never held does not necessarily mean that Long's record must be expunged.

            Long next argues that his withdrawn and vacated guilty pleas cannot be substituted for a finding of probable cause.  In general, Long is correct that vacated or withdrawn guilty pleas should not be used against a defendant in a later proceeding.  Minn. R. Crim. P. 15.06; Minn. R. Evid. 410.  But caselaw suggests that in expungement cases, the court may under some circumstances consider a vacated or withdrawn guilty plea.  Numerous cases show that dismissal or vacation of charges after the defendant completes the terms of a deferred sentence does not constitute a resolution in the defendant's favor.  See City of St. Paul v. Froysland, 310 Minn. 268, 275-76, 246 N.W.2d 435, 439 (1976); State v. M.B.M., 518 N.W.2d 880, 883 (Minn. App. 1994).  In any event, we need not "substitute" Long's withdrawn and vacated pleas for a finding of probable cause because Long pleaded guilty to a charge arising from the 1994 incident.

            Long likens his case to that of State v. C.A., 304 N.W.2d 353 (Minn. 1981).  There, the state dropped charges against the defendant after the supreme court set aside his conviction and remanded for a new trial pursuant to a stipulation between the defendant and the state.  Id. at 355.  The supreme court determined that that matter had been resolved in the defendant's favor.  Id.  But C.A. is distinguishable.  Here, rather than dropping all charges against Long after his conviction was vacated, the state entered into plea negotiations with him.  As part of the plea agreement, the state re-charged Long with fifth-degree assault.  There was no new investigation, and it is clear that the state did intend to re-prosecute Long.  Thus, "all * * * proceedings" were not resolved in Long's favor.  Long disputes whether the factual basis for the vacated pleas and his ultimate fifth-degree-assault plea was the same.  But it is clear that the original allegation that Long engaged in illicit conduct with D.G.B. on November 5 or 6, 1994 did indeed form the basis for all the pleas.

The dismissal of the original criminal sexual conduct complaint was a product of the plea agreement, not the state's determination that the charge was not worth pursuing.  Because Long pleaded guilty to fifth-degree assault, a formal finding of probable cause was unnecessary.  This is not a resolution in Long's favor.  Because Long did not meet this legal threshold, the district court was under no statutory obligation to grant Long's expungement motion.

            Further, the district court did not abuse its discretion by finding that the public's interest in maintaining records outweighed the disadvantages to Long.  See Ambaye, 616 N.W.2d at 261 (holding district court has inherent power to expunge if benefits to petitioner outweigh public interest).  The district court explicitly stated that there had been no infringement on Long's constitutional rights and that he had been able to take advantage of a very favorable plea agreement.  The court also found that Long's interest in easing his employment search was outweighed by the public right to access records of the arrest and court file.  The records in question show that Long was implicated in illicit sexual activity involving at least one underage boy.   We conclude that the interests of public safety in maintaining these records outweigh any disadvantage to Long. 

            Long moved this court to strike a document included in respondent's appendix.  The state inserted the document as the fifth-degree assault complaint that formed the factual basis for Long's plea.  Long disputes that this is a true and correct copy of that complaint.  Because the document is outside the Goodhue County file received by this court and because the state has not shown that it is in fact a true and correct copy of the complaint, we grant Long's motion to strike.

Affirmed; motion granted.