author: RANDALL, Judge CRIPPEN, Judge KALITOWSKI, Judge

text:
    STATE of Minnesota, Appellant, v. Scott Paul LATTIMER, Respondent.
    No. CO-00-1394.
    Court of Appeals of Minnesota.
    Feb. 27, 2001.
    Review Denied May 15, 2001.
    Mike Hatch, Attorney General, St. Paul, MN; and Janelle P. Kendall, Mille Lacs County Attorney, Scott A. Buhler, Assistant Mille Lacs County Attorney, Milaca, MN, for appellant.
    Gregory K. Larson, Mark A. Mitchell, Larson Law Office, Little Falls, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge, RANDALL, Judge, and CRIPPEN, Judge.
   OPINION

RANDALL, Judge

After a prosecutorial charge of criminal vehicular operation resulting in great bodily harm produced a guilty plea, the district court deferred acceptance of the plea until the time of sentencing when the results of a presentence investigation report and mediation between the victim and defendant would be available. At sentencing, the prosecution did not object to the terms of probation, but requested a stay of imposition of sentence, rather than a stay of adjudication of sentence. Defense counsel argued for a stay of adjudication. The district court granted the stay of adjudication upon the conditions that appellant: serve 120 days in jail, pay a fine, pay restitution to the victim and the victim’s family, obtain a chemical dependency evaluation and follow through with all recommendations (if the evaluation determines there is an issue with alcohol or other chemicals, attend a support group once a week), abstain from the use and possession of alcohol and mood-altering chemicals, submit to random urinalysis and/or breathalyzer tests, attend a MADD Impact Victim Panel, attend physical handicap educational programming, and abide by all rules and regulations established in conjunction with his probationary status. Appellant State of Minnesota challenges the district court’s imposition of a stay of adjudication.

FACTS

On April 30, 1998, respondent Scott Paul Lattimer crashed the vehicle he was driving. Respondent and two passengers were thrown from the vehicle. Although an eyewitness reported respondent requested 911 not be called, the authorities were notified. All three were taken to the local hospital. Respondent and one passenger were not seriously injured, but the second passenger, the victim, was in critical condition. He sustained massive injuries, and his chance of survival was in doubt. The victim did survive and is now a quadriplegic.

At the hospital, an officer questioned respondent. Respondent told the officer he had only three beers, but a .17 blood alcohol level is undisputed. On March 15, 2000, respondent pled guilty to the charge of criminal vehicular operation resulting in great bodily harm. The prosecutor requested a stay of imposition of sentence. The district court deferred formal acceptance of the plea until the time of sentencing when the results of the presentence investigation (PSI) and mediation between respondent, the victim and the victim’s family would be available.

Among other conditions, the mediation agreement directed respondent to take classes on assisting persons who are quadriplegic and outfit his pontoon to accommodate the victim. Respondent complied in all respects. Neither the PSI report nor the participants of the mediation believed that respondent should do any jail time or lose his license. The victim lives in a different city than respondent, and loss of respondent’s license would mean respondent could not drive to visit the victim, take the victim on hunting and fishing trips, or assist the victim’s mother in caring for the victim. This assistance is critical as demonstrated by the fact that in the time between the plea and the sentencing, the record shows that respondent had become the victim’s “only connection” to the community outside his home.

At the sentencing hearing, the prosecutor renewed a request for a stay of imposition of sentence, and respondent requested a stay of adjudication. The district court stayed adjudication and imposed the following terms of probation on defendant. Appellant would be required to: serve 120 days in jail, pay a fine, pay restitution to the victim and the victim’s family, obtain a chemical dependency evaluation and follow through with all recommendations (if the evaluation determines there is an issue with alcohol or other chemicals, attend a support group once a week), abstain from the use and possession of alcohol and mood-altering chemicals, submit to random urinalysis and/or breathalyzer tests, attend a MADD Impact Victim Panel, attend physical handicap educational programming, and abide by all rules and regulations established in conjunction with his probationary status. The controlling factor for the court was the negative effect a felony adjudication of guilt would have on the victim. The victim would not have respondent to be his personal driver and friend. The court determined that a felony adjudication would further victimize the victim and therefore, justice would not be served. This appeal followed.

ISSUES

I. Did the district court interfere with the prosecution’s discretion in charging by staying adjudication?

II. Did the district court abuse its discretion in sentencing by deferring adjudication of conviction?

ANALYSIS

I. Interference with Prosecutorial Discretion in Charging

Stays of adjudication are within a district court’s “inherent judicial power.” State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996). Stays are the “final disposition of a criminal case.” Id. at 254 (emphasis added).

Following Krotzer, the supreme court wrote to the issues of stays in Foss, holding that the stays must “be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of its charging function.” State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996). Yet, it noted that the district court “may stay an adjudication of guilt over the prosecutor’s objection ivithout violating the separation of powers doctrine.” Id. at 540 (emphasis added). The tension between these two statements in Foss has been exasperated by its progeny in an attempt to bridge the great divide between logic and myth.

Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.

The myth is that an executed sentence, a stay of execution, and a stay of imposition are each a sentence, but a stay of adjudication is not. Rather, the stay of adjudication is some “third kind of animal” from pretrial hearings like suppression hearings or bail hearings. This is a myth because Krotzer makes it clear that with a stay of adjudication, the district court has the power to impose terms and conditions of probation that can include incarceration in a local jail of up to 12 months. Thus, we know that a formal stay of adjudication coupled with terms of probation-is not a “diversion” or a “de novo,” because neither of those two informal dispositions allows a judge, district or appellate, to incarcerate a citizen for up to 12 months in a county jail. With a stay of adjudication, the district courts have the power to incarcerate a person in a county jail for up to 12 months, the same time allowed under stay of execution of sentence or stay of imposition of sentence.

Because Krotzer is crystal clear that incarceration is allowed upon a stay of adjudication, the stay of adjudication is a sentence. If it is not a sentence, then I am not sure that even judicial immunity would protect us from lawsuits for false imprisonment. It is outside the scope of any judge’s authority to take a plea of guilty or accept one from a jury, find that all essential elements of the crime have been proven beyond a reasonable doubt, and incarcerate a citizen in jail unless it is part of a sentence.

In some of the Krotzer progeny, there has been an attempt to limit stays of adjudication to those cases where there is a “clear abuse of prosecutorial discretion” in the charging function. Again, this is a myth. When stays of adjudication are used, and they are used throughout the State of Minnesota, at least to some degree, the prosecution never comes into court and makes a formal record stating:

Your honor, on behalf of the state, I concede that there has been an abuse of prosecutorial discretion on this charge. Therefore, I now consent to a stay of adjudication.

That record is nonexistent. Similarly, on all stays of adjudication that are entered into in this state, the district court judge never makes a formal record stating:

On this record, I find that there has been a prosecutorial abuse of discretion in overcharging. I agree that I did not take care of that before trial or during trial. I agree that I let the improper counts go to the jury, or if this is a plea of guilty, I accepted a plea to an overcharged offense and now that I have made this record, I will make it up to the defendant on sentencing by giving a stay of adjudication.

We do not have that record here. We never have and never will.

On those occasions, when a district judge makes a conscious decision that a prosecutor has overcharged a case, the overcharge, the prosecutorial abuse of discretion, is handled well before sentencing. There could be a partial or total dismissal of the count or counts at the probable cause hearing. There might be a partial or full dismissal prior to trial upon motion by defense counsel. There could be a partial or full dismissal at the conclusion of the state’s case in chief, upon motion by defense counsel, or by the court on its own motion. There might be a’ partial or full dismissal of the charges at the conclusion of all the evidence and before the case is submitted to the jury, again, upon motion by defense counsel, or by the court on its own motion. In addition to that, you can have a district court following a verdict, upon a renewed motion by defense counsel, or on its own motion, dismiss part or all of the charges. The point is, the district court judge never sits idly by through the entire criminal justice process from start to finish viewing prosecutorial abuse of discretion, doing nothing until the sentencing, and then makes a formal record wherein the judge states that now that he and the system have allowed this prosecu-torial abuse of discretion in charging to play itself out, “he will make it up with a lenient sentence!” Neither the prosecutor nor the judge should be subjected to that kind of hypocrisy. Literally, Foss and some of its progeny could lead one to make the argument that that is the standard.

There is a canon of construction stating that the legislature never intends an absurd result. Minn.Stat. § 645.17 (2000) (stating that the courts, when ascertaining the intent of the legislature, must assume that the legislature did not intend an absurd or unreasonable result). That canon of construction must apply equally to the judiciary. If the legislature “can never intend an absurd result,” then the judiciary cannot allow itself to intend an absurd result if we are to comport with the dictates of the federal constitution and the State of Minnesota Constitution mandating due process in the criminal justice system for all people.

I am not sure how and why the myth of “prosecutorial abuse in charging” came to be the keystone. Krotzer, the seminal case, is clear. There was no abuse of discretion by the prosecutor in the charge. The charge was perfectly appropriate given the defendant’s conduct. There was no separation of powers problem in Krotzer. In Krotzer, the prosecutor investigated and filed charges, obtained a guilty plea, and recommended a sentence to the court. Krotzer, 548 N.W.2d at 254. The supreme court dismissed the state’s claim that the judiciary was interfering with prosecutorial discretion in charging by stating:

However, the prosecutor’s power to file charges and prosecute an individual was not infringed upon here. As Krot-zer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor’s carefully defined role. The final disposition of a criminal case is ultimately a matter for the presiding judge. As we stated in Olson, once the legislature has defined the range of punishments for a particular offense, it cannot ‘condition the imposition of the sentence by the court upon the prior approval of the prosecutor.’

Krotzer, 548 N.W.2d at 254 (citations omitted) (emphasis added).

The sentence in Krotzer came down to what is an everyday occurrence in courts throughout this state, arguments by the defendant for one sentence, and arguments by the prosecutor for another. The prosecutor in Krotzer there was not malicious. He argued for a particular kind of moderate sentence. Defense counsel argued for a sentence even more moderate. The probation office and the victim’s family voiced support for the recommendation of defense counsel. After hearing all arguments, the district judge imposed the moderate sentence argued for by defense counsel. Krotzer was a sentencing issue, not a charging issue. Attempts to turn Krotzer into anything other than what it was means you build a string of cases that are a pyramid of cards standing on loose sand and it will eventually, as it must, collapse under its own weight of nonlogic.

What happened in Krotzer is precisely what occurred in the present case. The prosecutor conducted an investigation, and .charged respondent with criminal vehicular operation resulting in great bodily harm, a perfectly appropriate charge. The prosecutor obtained a guilty plea and recommended a stay of imposition of sentence to the district court. That recommendation was proper for the prosecutor to make. That recommendation for a sentence, if accepted by the district court here (although it is not our issue), likely would have withstood any sentencing appeal by the defendant claiming that there should have been a further downward departure from stay of imposition down to stay of adjudication. The charges in Krotzer and the present case were appropriate for the conduct. In the present case, like Krotzer, the district court had various sentencing options available to it, and chose one.

Disputes over sentencing between prosecution and defense are common. District courts listen to them and pick the sentencing option they feel best fits the facts of the crime. Sentencing is within the court’s prerogative. See State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999) (holding the decision to depart from the sentencing guidelines is within the district court’s discretion and will not be disturbed absent clear abuse of that discretion); State v. Sanders, 598 N.W.2d 650, 656 (Minn.1999) (holding supreme court “will not interfere with a trial court’s discretion in sentencing unless the sentence is disproportionate to the offense”) (citation omitted); State v. Olson, 325 N.W.2d 13, 18 (Minn.1982) (holding district court judges, not the prosecution, pronounce sentences). In this case, as in State v. Hoememann,

we have a sentencing dispute, no more, no less, over whether the -district court will stay imposition of sentence with certain conditions of probation, impose a straight misdemeanor sentence, or stay adjudication of guilt, but couple the stay with certain normal conditions of probation.

No. C9-98-274, 1998 WL 463820 *5 (Minn. App. Aug.11, 1998) (Randall, J. dissenting). Prosecutors charge, defense attorneys defend, and upon convictions or pleas of guilty, judges sentence. Each has its own defined sphere.

Stays of adjudication have enjoyed a long history of use in our court system, and are still commonly used today despite the lack of clarity in recent appellate decisions. The county attorney, at oral argument in the present case, agreed candidly that she agrees to stays of adjudication whenever she so desires. She agreed that she is aware that stays of adjudication both before and after Krotzer, and up to the present, are being used, at least to some degree, some more than others, in different counties.

The state here contends that the prosecutor has to agree to this type of sentence. If that becomes the rule, then there is a serious violation of the separation of powers. When the state claims direct veto power and direct control over sentencing, it is a substantial infringement on the sole power of the courts to impose sentences. See State v. Pero, 590 N.W.2d 319, 326 (Minn.1999) (stating “[sjentencing is within the province of the judiciary, not the executive branch”); Olson, 325 N.W.2d at 18 (stating once the legislature has defined the range of punishments for a particular offense, it cannot “condition the imposition of the sentence by the court upon the prior approval of the prosecutor”); People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405, 409-10 (1974) (stating prosecutor may not “veto” district court judge’s decision to divert defendant into pretrial treatment program because “disposition is a function of the judicial power no matter what the outcome”).

If the prosecution is allowed direct veto power over a stay of adjudication in sentencing, the logical question is why stop there, and can you stop there? If the prosecution then wants veto power over stay of imposition of sentence whenever the sentencing judge is debating between stay of imposition and stay of execution, do we give them that power? Put another way, to be fair, as the constitution mandates fairness to citizens as well as the state, do we allow defense counsel, whenever the judge is considering stay of execution or stay of imposition, to veto stay of execution and mandate that the court stay imposition of sentence? Prosecutors would not like that nor should they. District court judges would not like that nor should they. It would be an egregious intrusion into the power of the courts to sentence. Yet, that is precisely the issue, and the only issue in this case. Here, the prosecution concedes that its discretion in charging the offense was not interfered with in any way, shape, or form whatsoever. It charged exactly the crime that it thought the facts fit, and the defendant pled guilty to that crime. With praiseworthy candor, the prosecution concedes that it has no objection to the terms' of probation that the court imposed and is specifically not arguing .for an execution of sentence and incarceration in prison. The county attorney simply argues that it should be stay of imposition of sentence rather than stay of adjudication of sentence. This case involves only a sentencing issue, not an issue of the prosecution abusing its discretion in charging.

In sum, there was no interference with the prosecutor’s discretion in charging; rather, the district court chose an available sentencing option, staying adjudication.

II. Appellate Review of Sentencing: Abuse of Discretion

A reviewing court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. May 20, 1998). In this case, the district court worked long and hard to fashion an appropriate sentence that took into account all of the factors that go into good sentencing. The court looked at the offense, the conduct of the defendant following the offense, the recommendations of the victim and the victim’s family, and the presentence investigation report.

As stated previously appellant was placed on probation with conditions that he: serve 120 days in jail, pay a fíne, pay restitution to the victim and the victim’s family, obtain a chemical dependency evaluation and follow through with all recommendations (if the evaluation determines there is an issue with alcohol or other chemicals, attend a support group once a week), abstain from the use and possession of alcohol and mood-altering chemicals, submit to random urinalysis and/or breathalyzer tests, attend a MADD Impact Victim Panel, attend physical handicap educational programming, and abide by all rules and regulations established in conjunction with his probationary status. These conditions were imposed at sentencing on May 23, 2000, however, appellant had already accomplished many of them. Appellant, the victim and the victim’s family had participated in mediation and on March 15, 2000, developed a list, which contained many of the same requirements.

Appellant outfitted his pontoon so that he can take the victim fishing. He and the victim plan trips together. He maintains regular and consistent contact with the victim. Indeed, affidavits submitted by the victim and the victim’s mother affirm the district court’s finding of the strong bond that developed between the two men, and the appellant’s total assumption of responsibility for his actions. With a formal adjudication of guilt, respondent would lose his driver’s license. The court noted that if respondent cannot drive, the victim would lose his connection to the community, and the victim’s mother would lose her support. The court concluded that the bond of friendship, support, and regular connections to the community and the ouR doors could not be replaced with government services.

Under our limited scope of appellate review on sentencing, we cannot say that there was any interference in this case with the prosecutor’s ability to charge the crime. Further, there was no abuse of discretion by the district court in imposing the sentence that it did.

DECISION

The district court did not interfere with the prosecutor’s ability to charge a crime. The district court did not abuse its discretion in imposing the sentence that it did.

Affirmed.

CRIPPEN, Judge

(concurring specially)

I concur in the opinion of Judge Randall but with these additional statements on the case.

1. Governing law

The majority agrees on the proposition at the root of this decision, that State v. Foss, 556 N.W.2d 540 (Minn.1996) must not be unreasonably read and applied.

At least in those cases where the defendant has been found guilty of a criminal act, the trial court has lawful authority to stay the ultimate adjudication of guilt in special circumstances demonstrating that this action is in the “furtherance of justice.” State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996).

Krotzer recognized the special circumstances confronted in that case and found it significant that the trial court strongly disagreed with the prosecution’s view on the disposition of the case. Id. at 254. The court said little more to suggest the appropriate level of deference the reviewing court should give to the trial court’s determination on the justice of the case. Foss ratifies the notion, evident in Krotzer, that the reviewing court will upset a judgment reflecting “mere disagreement” of the trial court and the prosecutor. Foss, 556 N.W.2d at 541. The stay of adjudication should not be a routine practice but a remedy employed “sparingly.” Id.

To these general but meaningful concepts, Foss suggested another: the stay of adjudication should be employed only for injustices resulting from the prosecutor’s clear abuse of discretion “in the exercise of the charging function.” Id. In the aftermath of Foss, this statement has been read persistently as a reference to prosecutorial discretion in assessing whether the state had sufficient evidence to prove that an offense had occurred. But the weight of evidence supporting a charge is largely beside the point when considering the cause for staying an adjudication, as it no doubt was in Krotzer and the subsequent cases that address the same issue. ' What was at issue in those cases was whether the trial court had cause to strongly question whether the prosecution erred in its insistence that a conviction be recorded, perhaps when it brought the charges — as might be the case when a compelling, existing alternative was disregarded — but more commonly when the case advanced to the point where an adjudication and disposition might occur.

The authority of Krotzer, never subsequently corrected, extends to cases where the prosecutor abuses its executive discretion by rigidly objecting to a disposition without adjudication of the offense, where the trial court is empowered to act differently if the .special circumstances of the case permit the court’s strong conviction that this is in the furtherance of justice. We should not employ a distorted reading of Foss to create instead an unbridled discretion of prosecutors. I concur with the conclusion of Judge Randall that an executive veto power seriously infringes on the judicial role of pursuing justice under the rule of law.

2. Standard of review

Neither Krotzer nor Foss, nor their progeny, make evident the appropriate standard of review for the appellate courts: the deference that should extend to the trial court in cases of this kind. The majority agrees that these are sentencing decisions, a classification that bears on the standard of review and on jurisdictional topics that have been addressed in earlier minority opinions. Perhaps this suggests, as Judge Randall concludes, a “limited” standard of review. Perhaps, when applied alongside the search for circumstances that are special that permit the trial court’s strong disagreement with the prosecutor and on practices that are not just routine, a more probing appellate review should be employed. An explicit identification of the standard of review is not necessary for purposes of this case, as it was not in Krotzer. The circumstances of this matter are unique and support the trial court’s strong conviction that an adjudication should not occur if respondent abides by stated conditions. The trial court has given what the law does not always guarantee, a just solution to a tragic problem. We would do otherwise if we did not affirm the trial court’s decision.

KALITOWSKI, Judge

(dissenting)

I respectfully dissent. The law regarding stays of adjudication is clear. District courts should only rarely interpose on prosecutorial discretion. State v. Foss, 556 N.W.2d 540, 541 (Minn.1996) (holding stays of adjudication should “be relied upon sparingly ” only when the prosecutor has clearly abused his or her discretion in charging and special circumstances exist). The legislature has also expressed its preference regarding stays. See Minn.Stat. § 609.095(b) (2000) (requiring a court to adjudicate a defendant’s guilt after he pleads guilty or is found guilty).

There is no contention that the prosecutor abused her discretion in charging respondent. Moreover, the facts here do not meet the “special circumstances” referenced in Krotzer. See State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996) (finding the situation “warranted unusual judicial measures” supported by “special circumstance”). A conviction in Krotzer would have resulted in a permanent label of sexual predator. Id. at 253. Here, the charge and consequential loss of a driver’s license is not out of line with respondent’s conduct, which was a felony. Cf. State v. Prabhudail, 602 N.W.2d 413, 415 (Minn.App.1999) (finding even misdemeanor conduct resulting in deportation does not meet “special circumstances” requirement), review denied (Minn. Jan. 18, 2000).

I would reverse the district court.

      . Stay of imposition of sentence means that if a defendant successfully completes the terms of probation and is discharged, even though the original plea was to a felony, the defendant in the State of Minnesota only has a misdemeanor record. Minn.Stat. § 609.13(2) (2000). This is a sentencing option sought after by defendants, because if there is stay of execution of sentence, while they avoid incarceration in a state penitentiary, and will serve their time, if any, only in a local jail or a county work farm they do acquire a felony record. Stay of adjudication of sentence has some similarity to stay of imposition of sentence because with stay of adjudication of sentence, you do not formally have a criminal record unless that stay is revoked because you violated the terms of your probation.

      . A "stay of adjudication" may occur before the determination of guilt, at least in circumstances where Lhe defendant waives the right to an early adjudication of the case. The matter is conditionally laid on the table for a later dismissal in the interests of justice. The peculiar characteristics of this form of stay, to my knowledge, have not been addressed by Krotzer and its progeny.


source: Caselaw Access Project

author: PORITSKY, Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Charles Allen DAVISSON, Appellant.
    No. C9-00-1524.
    Court of Appeals of Minnesota.
    March 6, 2001.
    Review Denied May 15, 2001.

      Mike Hatch, Attorney General, St. Paul, and Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant City Attorney, Minneapolis, for respondent.
    Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, for appellant.
    Considered and decided by HARTEN, Presiding Judge, HANSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge

Charles Alen Davisson’s appeal requires that we address the right of an individual under Minn.Stat. § 609A.02, subd. 3 (2000) to seal all records relating to criminal proceedings against - him. The statute provides that certain criminal proceedings not resulting in a conviction may be expunged “if all pending actions or proceedings were resolved in favor of the petitioner.” The trial court denied Davisson’s motion to expunge the record. Appellant now asserts that he is entitled to expungement because, although the court found him guilty of the offense for which he was charged, the court stayed adjudication subject to various probationary conditions, and eventually discharged him from probation and dismissed the charge with prejudice. We affirm.

FACTS

In 1995, the state charged appellant Charles Alen Davisson with one count of harassment/stalking as a gross misdemeanor in violation of Minn.Stat. § 609.749, subd. 2(3) (1994) and one count of misdemeanor interference with privacy in violation of Minn.Stat. § 609.746, subd. l(a)(l)-(3) (1994). From June 1995 to the date of his arrest, Davisson had been stalking Kalleen King, a news anchorwoman for KSTP.

The state dropped the charge of interference with privacy and in September 1996, based on a stipulated record, the trial court found Davisson guilty of gross-misdemeanor stalking. With the consent of both parties, the trial court stayed adjudication and placed Davisson on unsupervised probation for two years, provided that he abide by the following conditions:

• Complete a psychological evaluation and follow any recommendations for treatment or therapy;
• Have absolutely no contact with King in person or through third parties;
• Commit no same or similar offenses; and
• Follow all outstanding court orders for protection and restraining orders.

Davisson appealed the trial court’s Order of Judgment and Sentence, which this court affirmed on June 3,1997.

In January 1998, the trial judge wrote Davisson’s attorney requesting the results of Davisson’s psychological evaluation and recommendations, if any. In February 1998, the attorney informed the court that Davisson had met with a psychologist on February 12, 1998, and that the psychologist requested three weeks “to gather information and to schedule additional testing or examinations, if necessary” before issuing her final report. Davisson’s attorney further stated that the report would be issued after that time, but well before the end of Davisson’s probationary period on September 19, 1998. On February 25, 1998, the state requested a hearing to determine whether Davisson had violated his probation, contending that his tardiness in obtaining an assessment was a probation violation.

In March 1998, the trial court held a hearing on the issue and found that Davisson had violated the conditions of his probation “by not completing a psychological evaluation and following the recommendations of said evaluation.” The court revoked the stay of adjudication and imposed, but stayed, execution of the sentence pending compliance with the terms and conditions of probation. Davisson appealed the trial court’s order, which this court reversed, concluding that the trial court had abused its discretion by revoking appellant’s stay of adjudication where the court failed to give a specific deadline “for the performance of the probationary condition of undergoing a psychological evaluation.” Subsequently, in October 1998, the trial court discharged Davisson from probation and dismissed the charge against him with prejudice.

In January 2000, Davisson petitioned the court to expunge all records relating to his arrest and the complaint and charges against him pursuant to Minn.Stat. § 609A.02, subd. 3. A hearing was held in March 2000, before the Chief District Court Judge, who stated that the motion was improperly assigned to him. He referred the case to the judge who tried the case. Based on a review of the written submissions and without seeking oral argument, in July 2000 the trial court denied Davisson’s motion for expungement.

The trial court based its refusal to expunge on the following factors: (a) all pending actions or proceedings against Davisson were not resolved in his favor where he was found guilty of a serious offense; (b) the state had “clearly shown” that the interests of public safety far exceeded the disadvantages to Davisson; and (c) public safety “clearly dictate[d] that someone who would engage in such behavior and go untreated may re-offend” where Davisson had stalked another woman and, in violation of an order for protection, continued to harass her.

ISSUES

I. In a case where the trial court finds a defendant guilty of an offense, stays adjudication with conditions of probation and, upon a successful completion of the probationary period, discharges defendant from probation and dismisses the charge with prejudice, were the proceedings resolved “in favor of’ defendant within the meaning of Minn.Stat. § 609A.02, subd. 3?

II. Did the trial court abuse its discretion in finding that the state established by clear and convincing evidence that the interests of public safety outweighed the disadvantages of denying expungement to appellant?

ANALYSIS

Trial courts have both statutory and inherent powers to grant expungement relief. State v. Ambaye, 616 N.W.2d 256, 257-58 (Minn.2000) (explaining that Minnesota courts have the inherent power to expunge criminal records where there may be a serious infringement of petitioner’s constitutional rights or where the benefit of expungement is equal to or greater than the disadvantages to the public). Davisson’s petition for expungement is grounded solely on the court’s statutory power to expunge pursuant to Minn.Stat. § 609A.02. Under the statute, the trial court will consider a petition for expungement “if all pending actions or proceedings were resolved in favor of the petitioner.” Minn.Stat. § 609A.02, subd. 3.

I.

Whether all proceedings were resolved in petitioner’s favor is a question of law this court reviews de novo. State v. Ronquist, 600 N.W.2d 444, 447 (Minn.1999) (providing that statutory construction is a question of law). Davisson contends that because a stay of adjudication does not result in a conviction, the proceeding was resolved in his favor. See State v. Roloff, 562 N.W.2d 29, 31 (Minn.App.1997) (stating that in determining criminal history for sentencing under the guidelines, a stay of adjudication is not equivalent to a conviction). We conclude that a stay of adjudication does not yield a resolution in favor of the defendant.

The theme that can be distilled from case law is that if a defendant is either found to have committed the offense or pleads guilty to the charge, the proceeding has not been resolved in defendant’s favor. In Ambaye, the defendant had been found not guilty by reason of insanity, but the Minnesota Supreme Court noted:

[A] person found not guilty by reason of insanity * * * has been found to have committed the act of which he ivas accused. A verdict reflecting such a fact is not one “in favor of’ [petitioner],

616 N.W.2d at 261 (emphasis added). Similarly, Davisson was found to have committed the act of which he was accused.

In City of St. Paul v. Froysland, the defendant received a stay of imposition. Ultimately her plea was stricken, her conviction was vacated, and the charge was dismissed. 310 Minn. 268, 269, 246 N.W.2d 435, 436 (1976). But in interpreting similar “in favor of’ language found in Minn.Stat. § 299C.11 (1974), the court held that the proceeding was not a determination in her favor. Id. at 275-76, 246 N.W.2d at 439 (agreeing with the lower court that “the statute was not intended to protect those whose conviction was entered upon a plea of guilty”). Later, in State v. Krotzer, the court pointed out that a stay of adjudication with an imposition of a probationary period is short of outright dismissal. 548 N.W.2d 252, 255 (Minn. 1996). Thus, in the present case, the mere fact that Davisson was not convicted and the charge was dismissed at the end of his probationary period does not make the proceeding one in his favor.

In State v. this court held that dismissal of a complaint after pleading guilty was “in the nature of a pardon, not a declaration of innocence” and therefore not a determination in favor of accused. 518 N.W.2d 880, 883 (Minn.App.1994) (quotation and citations omitted).

If, on the other hand, there was no valid finding of guilt — either by plea or verdict — the courts have stated that such proceedings were resolved in favor of the defendant. In State v. C. A, the court concluded that a case was resolved in favor of the petitioner because the state had dropped the charges after the supreme court set aside defendant’s conviction and ordered a new trial. 304 N.W.2d 353, 357 n. 3 (Minn.1981).

In State v. L.K., this court determined that because the defendant did not plead or admit guilt and the charge against him was not prosecuted, innocence was presumed and the lower court’s dismissal of the charge amounted to “a determination in his favor.” 359 N.W.2d 305, 307-08 (Minn.App.1984).

In the present case, the trial court did not proceed on a plea of guilty, but proceeded on its finding beyond a reasonable doubt that Davisson committed the offense of which he was charged. A finding of guilty is equivalent to a plea of guilty. See, e.g., Minn.Stat. § 609.02, subd. 5 (2000) (defining “conviction” as a plea of guilty, a verdict of guilty by a jury, or a finding of guilty by the court that it has accepted and recorded); State v. Thompson, 198 Ariz. 142, 7 P.3d 151, 153 (Ariz.Ct.App.2000) (“An accepted guilty plea is equivalent to a finding of guilt by a jury or judge.” (citation omitted)). In determining whether a proceeding is resolved in favor of a defendant, the focus is. not on whether there was a guilty plea as opposed to a guilty verdict, but whether there was a valid finding that the defendant committed the charged offense. Ambaye, 616 N.W.2d at 261.

II.

Even if all proceedings were resolved in Davisson’s favor, his request for expungement has been overcome by clear and convincing evidence that the public’s interest in not expunging his record outweighs the disadvantages to him. See Minn-Stat. § 609A.03, subd. 5(b) (2000) (providing that criminal records will be sealed unless the state “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”). This court reviews the lower court’s decision on whether to expunge a record under an abuse of discretion standard. 518 N.W.2d at 883.

The Minnesota Supreme Court has stated that the benefits of expungement to the petitioner must be weighed against the seriousness of the offense. Ambaye, 616 N.W.2d at 261. In this case, Davisson argues that refusal to expunge his record will jeopardize his career as an NBA coach as well as his ability to rent apartments. The trial court found that these reasons were outweighed by the interests of public safety in maintaining a record of Davis-son’s stalking activities. We conclude that the trial court’s finding was within its discretion.

Davisson contends that there is no evidence he is a danger to public safety. We disagree and uphold the trial court’s ruling in this respect. Appellant has committed a serious offense against a person and has exhibited similar behavior in the past by stalking another woman he barely knew, and violating a court order requiring him to stay away from her. Moreover, in the present case, although appellant was required to seek treatment only if recommended after his psychological assessment, it nonetheless remains that he is an untreated offender' — a specific fact the trial court noted in its conclusions. The trial court found that these circumstances outweighed the reasons advanced by Davisson for expungement, and the matter was clearly within the court’s discretion.

III.

Finally, Davisson complains that the denial of his petition to expunge is a direct result of the trial judge’s prejudice toward him. The only instances appellant points to in this regard are (1) the trial judge’s earlier ruling in this case that was reversed, and (2) the judge’s refusal to grant him a hearing on the instant petition. These instances do not provide any support for his complaint. Davisson’s claim of bias is wholly unsubstantiated and undeserved.

DECISION

In denying expungement, the trial court properly determined that the proceedings had not been resolved in Davisson’s favor within the meaning of Minn.Stat. § 609A.02, subd. 3, where the court found appellant guilty beyond a reasonable doubt, but stayed adjudication subject to conditions of probation. The state provided clear and convincing evidence that the interests of the public and public safety in denying expungement outweighed the disadvantages to Davisson.

Affirmed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . State v. Davisson, No. C6-96-2141, 1997 WL 292159 (Minn.App. June 3, 1997), review denied (Minn. Aug. 5, 1997).

      . State v. Davisson, No. C3-98-1064, 1998 WL 747135, at *2 (Minn.App. Oct. 27, 1998).

      . Minn.Stat. § 299C. 11(a) (2000) governs criminal-identification data furnished by local law-enforcement agencies to the state bureau of criminal apprehension. Section 299C. 11(b) governs the circumstances under which no chapter 609A petition is required and the records are actually returned to the arrested person on demand. Minn.Stat. § 299C.11(b) (2000). Under section 609A, criminal records may not be. destroyed or returned to the petitioner, but are sealed and may not be disclosed or opened without court order. Minn.Stat. § 609A.01 (2000).


author: DANIEL F. FOLEY, Judge

text:
    Maureen ZAHLER, Appellant, Mitchell Zahler, Petitioner, v. MINNESOTA DEPARTMENT OF HUMAN SERVICES, Respondent.
    No. CX-00-1354.
    Court of Appeals of Minnesota.
    April 3, 2001.

      Gregory D. Dittrich, Woodbury, MN, and Gregory R. Troy, McLeod & Troy, St. Paul, MN, (for appellant).
    Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, St. Paul, MN, and Douglas H. Johnson, Washington County Attorney, Nancy Nelson, Assistant County Attorney, Washington County Government Center, Stillwater, MN, (for respondent).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

Appellant challenges the decision by the Commissioner of the Department of Human Services, which upheld the determination made by the Washington County Community Services Department that appellant maltreated her son. Appellant argues that the county did not comply with the statutory investigation procedures outlined in Minn.Stat. § 626.556, subds. 10(a), (h), (i), (j), lOf (2000), so the maltreatment determination should be reversed. Because we conclude that the commissioner’s decision was supported by substantial evidence, we affirm.

FACTS

Appellant Maureen Zahler is the biological parent of C.M.Z. and N.M.Z., and petitioner Mitchell Zahler is their adoptive parent. On November 30, 1997, 16-year-old C.M.Z. placed a 911 call reporting that he and appellant were involved in an altercation. When a Washington County deputy sheriff arrived at the home, he observed that appellant was very upset and was yelling at the boys. Appellant informed the deputy that C.M.Z. had punched a hole in a wall and she wanted the boys out of the house. While appellant was reporting this to the deputy, he observed her strike C.M.Z. on the shoulder. The deputy could not recall if the strike was made with an open or closed hand. After separating the two, the deputy spoke with C.M.Z. who reported that he and appellant had argued and that she hit him in the chest. When the deputy asked C.M.Z. if he had any marks, C.M.Z. lifted his shirt, and the deputy saw a red mark in the center of C.M.Z.’s chest.

Appellant consented to having her sons placed with their biological father’s parents, the Wilsons. On December 18, 1997, the Wilsons met with Francine Bass, a social worker with Washington County Community Services Department (the county), and reported possible incidents of maltreatment of the boys. The next day the Wilsons returned to the county with the boys to speak with the social worker, however, she only spoke with the Wilsons and C.M.Z. C.M.Z. reported several incidents of alleged maltreatment by appellant and petitioner and submitted a written statement describing them. On the same day, both boys met with a Washington County Sheriffs Department investigator; only C.M.Z. was interviewed. Neither C.M.Z.’s interview with the social worker nor the investigator was recorded. The investigator placed a 72-hour hold on the boys, and the social worker determined that appellant and petitioner had maltreated the boys. The social worker attempted to set up an interview with appellant, but appellant’s attorney cancelled the appointment.

On December 23, 1997, a Child in Need of Protection or Services (CHIPS) petition hearing was held, and the court directed that the boys remain with the Wilsons. The court ordered appellant, petitioner, and the boys to seek family counseling, and the petition was eventually dismissed.

Written notice of the county’s maltreatment determination was addressed to petitioner only. After petitioner received notice, the parties requested that the county reconsider; the initial determination was upheld. The parties filed a notice of appeal to respondent Minnesota Department of Human Services (the department). Following hearings on July 15 and August 18, 1998, the commissioner’s referee recommended affirming the county’s determination that the boys had been maltreated by appellant and petitioner. On April 9, 1999, the commissioner accepted the referee’s recommendation. On May 14, 1999, the commissioner corrected several factual findings, but denied the parties’ request for reconsideration.

On June 11, 1999, the parties filed a notice of appeal to the district court challenging the commissioner’s decision. After a hearing, the district court filed its order, finding that there was not enough evidence to conclude that appellant and petitioner had maltreated N.M.Z. The court further found that there was not enough evidence to conclude that petitioner had maltreated C.M.Z. But, the court did find that there was evidence to support a determination that appellant maltreated C.M.Z. Appellant now seeks review of that determination.

ISSUES

I. What is the correct scope of review of maltreatment determinations reviewed under Minn.Stat. § 256.045 (2000)?

II. Did the commissioner err by upholding the county’s determination that appellant maltreated her son pursuant to Minn.Stat. § 626.556 (2000)?

ANALYSIS

I.

Because neither party correctly identified the proper scope or standard of review of the commissioner’s orders regarding maltreatment determinations, we take this opportunity to clarify this court’s role in the process.

Review of the commissioner’s orders relating to maltreatment determinations is governed by Minn.Stat. § 256.045 (2000). After considering the referee’s recommendation, the commissioner issues a final order. Id, subd. 3b. A party dissatisfied by the commissioner’s decision may appeal to the district court. Id., subd. 7. On review, the district court “shall take no new or additional evidence unless it determines that such evidence is necessary for a more equitable disposition of the appeal.” Id, subd. 8. A party dissatisfied with the district court’s order “may appeal the order as in other civil cases.” Id, subd. 9.

The department asserts that maltreatment proceedings are not contested cases and thus are not governed by the scope of review set forth in Minn. Stat. § 14.69 (2000) (the Administrative Procedure Act). In making this assertion, respondent relies on Minn.Stat. § 256.045, subd. 4(b), which states that hearings before the commissioner’s referee “shall not be” contested cases. Although Minnesota case law has not specifically addressed this provision of the statute, case law consistently provides that when judicial review is authorized by Minn.Stat. § 256.045, the scope of review is governed by Minn.Stat. § 14.69. Estate of Atkinson v. Minnesota Dep’t. of Human Servs., 564 N.W.2d 209, 213 (Minn.1997); Johnson v. Minnesota Dep’t. of Human Servs., 565 N.W.2d 453, 457 (Minn.App.1997); ef. Brunner v. State, Dep’t. of Pub. Welfare, 285 N.W.2d 74, 75 (Minn.1979) (recognizing that scope of review for review of orders authorized by Minn.Stat. § 256.045 is governed by Administrative Procedure Act). Because judicial review in this case was authorized by Minn.Stat. § 256.045, we conclude that the scope of review is governed by Minn. Stat. § 14.69.

Minnesota case law also provides that when judicial review is authorized under Minn.Stat. § 256.045, the district court is engaged in appellate review even though Minn.Stat. § 256.045, subd. 8, allows the district court to consider new and additional evidence when “necessary for a more equitable disposition of the appeal.” See Johnson, 565 N.W.2d at 457 (stating “district courts engaged in appellate review of MA eligibility decisions”) (quoting In re Kindt, 542 N.W.2d 391, 398 (Minn.App.1996)). Accordingly, this court reviews the ■commissioner’s order independently, giving no deference to the district court’s review. Atkinson, 564 N.W.2d at 213; Johnson, 565 N.W.2d at 457; Kindt, 542 N.W.2d at 398.

Therefore, this court’s role is to review the commissioner’s decision to determine if the decision was:

(a)In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Made upon unlawful procedure; or
(d) Affected by other error of law; or
(e) Unsupported by substantial evidence in view of the entire record as submitted; or
(f) Arbitrary or capricious.

Minn.Stat. § 14.69.

II.

Appellant contends that the county did not follow the statutory investigative procedures pursuant to Minn.Stat. § 626.556 (2000), so the determination that she maltreated C.M.Z. should be reversed. Appellant asserts that the county failed to (1) maintain adequate records under Minn. Stat. § 626.556, subd. 10(a); (2) provide her the opportunity to make a statement before making its determination under Minn.Stat. § 626.556, subd. 10(h); (3) conduct a face-to-face interview with appellant under Minn.Stat. § 626.556, subd. 10(i); (4) record interviews with witnesses and collateral sources under Minn.Stat. § 626.556, subd. 10(j); and (5) give her proper notice of its maltreatment determination under Minn.Stat. § 626.556, subd. lOf. Because C.M.Z. is now 18, it seems that appellant is essentially seeking to reverse this determination so that her “good name” can be restored.

. The commissioner’s factual findings are reviewed under the substantial evidence test, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Department of Human Sews. v. Muriel Humphrey Residences, 436 N.W.2d 110, 114 (Minn.App.1989), review denied (Minn. Apr. 26,1989) (quotation omitted).

Appropriate Records

Relying on Minn.Stat. § 626.556, subd. 10(a), appellant asserts that the social worker, on behalf of the county, failed to maintain appropriate records of her interviews with C.M.Z. and the Wilsons, her communication with the investigator, and her attempts to contact appellant for an interview.

The evidence does not support appellant’s assertion. The record indicates that the social worker completed (1) the intake social service referral form generated the day the Wilsons first met with her, which documented their initial report regarding the November 30,1997, incident along with prior allegations of abuse; (2) the social services referral, which documented the nature and description of the report that included C.M.Z’s version of the November 30 incident; and (3) a personal narrative of the events surrounding the maltreatment determination, including contacts with the investigator and appellant. Although the dates given by the social worker on the narrative are not accurate, they were corrected during her hearing testimony.

The social worker used these documents in making her maltreatment determination, and the documents contain relevant information regarding the reports of alleged abuse, the family’s history, and her attempts to speak with appellant. It is clear that the records were appropriately maintained.

Relevant Information for Making Maltreatment Determination

Appellant argues that the social worker, on behalf of the county, should have assessed the credibility of C.M.Z.’s statement under Minn.Stat. § 256.556, subd. 10(h)(1), and provided her with an opportunity to make a statement under Minn.Stat. § 256.556, subd. 10(h)(2).

The hearing testimony shows that the social worker did evaluate C .M.Z.’s credibility as suggested by Minn.Stat. § 626.556, subd. 10(h)(1). Further, even if the social worker had not made this determination, her inaction would not warrant reversal because she was not required to evaluate C.M.Z.’s credibility. See Minn. Stat. § 626.556, subd. 10(h) (stating that relevant information must be requested when conducting an investigation, which may include assessing child’s credibility).

Although Minn.Stat. § 626.556, subd. 10(h) provides a list of possible sources of relevant information, the list states that the agency “must provide the alleged offender with an opportunity to make a statement.” Minn.Stat. § 626.556, subd. 10(h)(2) (emphasis added). Regardless of any inconsistencies in the statutory language about what the county “may” or “must” do, the hearing testimony demonstrates that the social worker set up an interview with appellant, but appellant’s attorney canceled it. Based on these facts, the county did provide appellant an opportunity to make a statement, but she declined.

Face-to-Face Interview with Alleged Offender

Appellant argues that the county never conducted a face-to-face interview with her, which is required under Minn. Stat. § 626.556, subd. 10(i).

As stated above, the record demonstrates that the social worker did afford appellant the opportunity to meet with her. The social worker set up an appointment with appellant, but appellant’s attorney canceled it. The social worker further testified that appellant’s attorney informed her that all communication involving appellant must be channeled through appellants attorney. This evidence demonstrates that the social worker attempted to conduct a face-to-face interview, but appellant chose to cancel the scheduled interview.

Audio Recordings of Interviews

Appellant asserts that the county failed, to record its interviews with C.M.Z. or the Wilsons pursuant to Minn.Stat. § 626.556, subd. 10(j)(l).

The statute provides that audio recordings are to be made “whenever possible,” but it does not specify a penalty if the county does not make the recordings. Cf Erickson v. Commissioner of the Dep’t. of Human Servs., 494 N.W.2d 58, 62 (Minn. App.1992) (stating appellant has burden of proving existence of statutory ground for reversal of agency’s decision). Further, even though no recordings were made the record otherwise supports the commissioner’s decision to uphold the county’s maltreatment determination.

Notice of the Maltreatment Determination

Appellant argues that, under Minn.Stat. § 626.556, subd. 10(f), the county was required to provide her with notice of its maltreatment determination.

While appellant asserts that the notification letter was only addressed to petitioner, thereby making notice to appellant defective, the social worker testified that the envelope in which the letter was mailed was addressed to both appellant and petitioner. The commissioner recognized where factual issues are contested, “the conclusions reached by the referee will necessarily be supported by one party and disputed by the other.” It is within the referee’s province to determine credibility and such decisions should not be reweighed. Youa True Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn.App.1985).

Further, at the time the notice was sent, petitioner and appellant resided at the same address as husband and wife, appellant was involved in every step of the appeal process, and she was never denied a hearing. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (stating if notice is of nature that reasonably conveys required information and affords time to respond, “the constitutional requirements are satisfied”). Appellant does not allege any prejudice resulting from the purportedly defective notice. Thus, we conclude that the notice, even if defective, does not warrant reversal. Cf. Risher v. Office of Workers Comp. Program, 940 F.2d 327, 331 (8th Cir.1991) (concluding that where appellant suffered no injury from inadequate notice and properly and timely appealed, reversal not warranted despite inadequate notice).

DECISION

Although the county did not record interviews, there is no statutory remedy for this failure, and the county complied with all other statutory investigative procedures challenged by appellant. Thus, there is substantial evidence to support the commissioner’s decision upholding the county’s determination under Minn.Stat. § 626 .556 (2000) that appellant maltreated her son.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Because the district court determined that there was not enough evidence to conclude that petitioner maltreated either child, petitioner does not raise any issues on appeal. Although the department argues that the court's determination was erroneous, no no-lice of review was filed so the issue is not properly before this court. See Smolialc v. Myhr, 361 N.W.2d 153, 157 (Minn.App.1985) (stating failure to file notice of review limits issue on appeal to those in notice of appeal).


author: PETERSON, Judge.

text:
    In the Matter of the Petition of METRO SIDING, INC., a Minnesota corporation; Northland Cabinets, Inc., a Minnesota Corporation; and JLJ Partnership, a Minnesota partnership. In Relation to Certificate of Title No. 101113 issued for land in the County of Dakota and State of Minnesota legally described as follows: Lot One (1), Alimagnet Landing, according to the Recorded plat thereof.
    No. C2-00-1123.
    Court of Appeals of Minnesota.
    April 3, 2001.

      Peter W. Johnson, Wayzata, for respondent.
    Dale C. Nathan, Nathan & Associates, Eagan, for appellant.

      Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and HUSPENI, Judge.

      Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge.

Respondents Metro Siding, Inc.; North-land Cabinets, Inc.; and JLJ Partnership commenced a proceeding subsequent to initial registration of land, seeking an order declaring appellant Murr Plumbing, Inc.’s, mechanic’s lien statement invalid and directing issuance of a new certificate of title in respondents’ names only. Murr Plumbing filed an answer and counterpetition seeking an order declaring respondents’ mechanic’s lien statements invalid and directing issuance of a new certificate of title in Murr Plumbing’s name only. Following a trial on stipulated facts, the trial court determined that Murr Plumbing’s hen was valid. Following a second trial to determine the remaining issues, the trial court declared all the parties’ liens valid and directed issuance of a new certificate of title in the names of appellant and respondents that reflects the percentage interest of the property that each party owns. Murr Plumbing moved for a new trial and amended findings of fact, and the motions were denied. Murr Plumbing appealed from the order issued following the second trial and from the order denying its posttrial motions. Because Murr Plumbing did not have notice that the parties’ ownership interests would be determined in the proceeding subsequent, we reverse.

FACTS

In April 1997, Murr Plumbing filed a mechanic’s lien against property in Dakota County. The original lien statement included an incorrect legal description of the property but a correct street address. In November 1997, Murr Plumbing discovered the error and filed an amended hen statement. Each of the respondents either filed a mechanic’s lien against the property or was assigned a mechanic’s lien that had been filed by someone else.

The property was sold in a mortgage-foreclosure sale. The mortgagor failed to redeem the property within the statutory period and appellant and the respondents each claimed a right to redeem based on their status as mechanic’s lien holders. During the statutory redemption period, each party separately paid the required redemption amount to the Dakota County Sheriff. After making the required payments to the mortgagee, the sheriff held the remaining portion of the redemption payments until the parties provided written instructions indicating the ownership interests of each party that were to be reflected in the certificate of redemption.

The parties began negotiations regarding their ownership interests, but they were not able to reach an agreement about what percentage of the property each party owned. To obtain refunds of the excess payments they had made to the sheriff, the parties entered an agreement that stated the amount that the sheriff was to pay each party and directed the sheriff to issue a certificate of redemption that indicated the parties had undivided interests in the property. The agreement listed the percentage of the property that each party claimed to own and the percentage of the total refund amount that the sheriff was to pay to each party. But the agreement also stated:

2. Any of the parties may commence a suit for declaratory judgment and partition. Each of the parties shall have the right to assert any claim it has against any other party. Nothing in this Agreement shall limit or foreclose the rights of any party hereto to assert a claim against any other party and/or to challenge the rights of any party to redeem.
3. The parties agree that the respective shares set forth in the instruction letter to the Sheriff of Dakota County, and the respective shares reflected in the Certificate of Redemption, issued by the Sheriff of Dakota County, shall not be binding or prejudicial to the rights preserved hereunder. Further, it is agreed that no court shall give any weight or consideration to the respective shares set forth in said documents in making its determination of rights held by the parties hereto.

Respondents commenced a proceeding subsequent to initial registration of land, seeking an order declaring Murr Plumbing’s mechanic’s lien statement invalid and unenforceable and directing issuance of a new certificate of title in respondents’ names only. Murr Plumbing filed an answer and counterpetition seeking an order declaring respondents’ mechanic’s lien statements invalid and directing issuance of a new certificate of title in Murr Plumbing’s name only. Neither respondents’ petition nor appellants’ answer and counterpetition sought a determination of the percentage of the property that each party owned.

In December 1998, after motions for summary judgment had been denied, Murr Plumbing moved to continue the trial date to permit additional discovery. The trial court denied the motion and limited the issue for trial to the validity or invalidity of Murr’s lien. The court also ordered that “no further discovery shall be required or permitted.” On January 19, 1999, a trial was held on the sole issue of the validity of Murr Plumbing’s mechanic’s lien, and the court determined that the lien was valid.

A trial to determine the validity of respondents’ liens was scheduled for Monday, March 20, 1999. On March 17, 2000, the Friday before the trial was to begin, Metro Siding submitted a pretrial brief that raised the issue of the parties’ percentage interests in the property. At trial, Murr Plumbing objected to the court considering this issue. The court overruled Murr Plumbing’s objections, stating:

[I]t is my understanding that the issue of percentages have been negotiated by the parties and discussed by the parties, including [Murr Plumbing], for months. We are now in the position of having five attorneys sitting in this courtroom, witnesses sitting in this courtroom, a piece of property that has been bound up in litigation, and I am loath to subject any of the parties to needless future litigation and incurring needless future attorney’s fees.
I want the issues resolved. ⅜ * * It has to come to an end for everyone’s sake. So, I will allow you to submit — if you need some additional time, but I want, to whatever degree we can, to walk out of this courtroom today with all issues submitted for determination so that this case can come to an end and that the lives of individual and corporate parties can move on.

The court allowed the ownership percentages issue to be tried, and issued an order establishing the percentage interest in the property owned by each party. Murr Plumbing moved for amended findings of fact and a new trial. The motion was denied.

ISSUES

1. Did the trial court have authority to determine the parties’ ownership interests in the property in a proceeding subsequent to initial registration?

2. Did the trial court deny Murr Plumbing’s due process rights by trying the issue of the parties’ percentage ownership interests in the property?

3. Is the issue of whether the trial court erred by concluding that Murr Plumbing’s hen was valid properly before this court?

ANALYSIS

1. Proceedings Subsequent to Initial Registration

Murr Plumbing argues that the trial court had no statutory authority to determine the percentage ownership interests of the parties in a proceeding subsequent to initial registration. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); see also Minn.Stat. ch. 645 (2000) (interpretation of statutes).

Minn.Stat. ch. 508 (1996 <& Supp. 1997), also known as the “Torrens Act,” provides for registration of Minnesota real estate. Once a proceeding has been held to register land, the certificate of title is conclusive proof of ownership and cannot be altered except as authorized by the Act. In re Petition of Geis, 576 N.W.2d 747, 749-50 (Minn.App.1998), review denied (Minn. May 28, 1998); Minn.Stat. § 508.36 (1998).

Citing Fidelity & Deposit Co. v. Riopelle (In Re Petition of Fidelity & Deposit Co.), 298 Minn. 417, 216 N.W.2d 674 (1974), Murr Plumbing contends that proceedings subsequent to initial registration may not be used to determine a co-owner’s ownership interest in a property. In Fidelity, a creditor-purchaser under an execution sale filed a petition subsequent to initial registration requesting the court to cancel an existing certificate of title and issue a new certificate of title. Id. at 419, 216 N.W.2d at 676. The trial court refused to cancel the certificate of title and issue a new certificate because the notice of levy was dated before the writ of execution and the notice of sale was not properly posted. Id. at 420, 216 N.W.2d at 676. The creditor-purchaser appealed arguing that the execution sale, which was the basis for issuing a new certificate of title, could not be collaterally attacked in a proceeding subsequent. Id. The respondent argued that any questions about the title of the petitioner could be raised in the proceeding subsequent, including an attack upon the validity of the execution sale. Id., 216 N.W.2d at 676-77.

The supreme court held

that a certificate of sale on execution which is valid on its face cannot be attacked in a proceeding subsequent to initial registration and that defects not disclosed on the face of the certificate must be challenged in a direct action to set aside the sale.

Id. at 422, 216 N.W.2d at 678.

Appellant argues that under Fidelity, the trial court’s scope of inquiry was limited to claims that could be resolved by referring to the face of the documents recorded on the certificate of title. Therefore, because the parties’ ownership interests were not disclosed on the face of the documents, the trial court erred by determining the ownership interests in a proceeding subsequent.

Appellant’s argument fails to recognize that in 1983, nine years after the supreme court decided Fidelity, the legislature amended the Torrens Act to broaden the scope of proceedings subsequent. In 1983, the legislature added the following emphasized language to Minn.Stat. § 508.71, subd. 2 (1982):

A registered owner or other person in interest may, at anp time, apply by petition to the court, upon the ground that (1) registered interests of any description, whether vested, contingent, expectant, or inchoate, have terminated and ceased; (2) new interests have arisen or been created which do not appear upon the certificate; (3) any error or omission was made in entering a certificate or any memorial thereon, or on any duplicate certificate; (4) the name of any person on the certificate has been changed; (5) the registered owner has married, or, if registered as married, that the marriage has been terminated; (6) a corporation which owned registered land and has been dissolved has not conveyed it within three years after its dissolution; or (7), upon any reasonable ground, that any other alteration or adjudication should be made. * * * * After notice has been given as ordered, the court may order the entry of a new certificate, the entry, amendment, or cancellation of a memorial upon a certificate, or grant any other relief upon the terms, requiring security if necessary, as it may consider proper.

1983 Minn. Laws ch. 92, § 21. The language added in 1983 expanded the scope of issues that may be litigated in a proceeding subsequent.

In an article that traces the evolution of proceedings subsequent, Richard W. Ed-blom, a recognized authority on registered property in Minnesota and the former Hennepin County Examiner of Titles, explained the expansion of the scope of proceedings subsequent. Edblom explained that, until the 1983 amendment, “it could be argued that court orders affecting registered land could only be entered when specifically authorized in Chapter 508.” Richard W. Edblom, Torrens 1995-Exam-iner’s Certifications, Directives and Proceedings Subsequent, 13 Real Est. Inst. (Minn. St. B. Ass’n 1995). He then stated:

Nevertheless, the trend for many years has been to use subsequent proceedings to solve an increasingly wide range of problems! In 1983 the wording of Minn.Stat. 508.71, Subd. 2, was revised to provide a statutory basis for broad uses of § 508.71.

Id.

Also, in Nolan v. Stuebner, 429 N.W.2d 918, 922-23 (Minn.App.1988), review denied (Minn. Dec. 16, 1988), this court approved of the use of a proceeding subsequent to amend a certificate of title. In Nolan, the respondents obtained a declaratory judgment to have an easement declared valid. Id. at 919. This court agreed that while a certificate of title is conclusive evidence that there is an easement contained in the certificate, it did not preclude judicial inquiry into the validity of the easement. Id. at 922 (citing Minn. Stat. § 508.71, subd. 2(7) (1986)). This court then stated:

Respondents should have more appropriately brought a proceeding subsequent to registration to determine the placement of the easement, rather than this declaratory judgment action. However, the proceeding before the trial court was substantively the same as a proceeding subsequent where the meaning of a document "is determined by the intent of the parties.

Id. at 922-23. This statement indicates that the trial court’s scope of inquiry in a proceeding subsequent under Minn.Stat. § 508.71, subd. 2(7) (1996), is not limited to claims that can be resolved solely by referring to documents recorded on the certificate of title. We conclude that, with proper notice, the issue of the parties’ ownership interests in the property could be determined in a proceeding subsequent.

2. Due process

A reviewing court is not bound by and need not defer to a trial court’s decision on a purely legal issue. Frost Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). “A party is bound by its pleadings unless other issues are litigated by consent.” Great Am. Ins. Co. v. Golla, 493 N.W.2d 602, 605 (Minn.App.1992). Where the parties have limited themselves to a specific cause of action, they cannot then admit evidence that addresses another cause of action. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn.1981); see also Minn. R.Civ.P. 8.01 (pleadings shall contain a statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought). Murr Plumbing argues that it had no notice that the parties’ ownership interests in the property would be an issue in the proceedings subsequent and, therefore, it was denied due process when the trial court determined the ownership interests. We agree.

In Hough Transit, Ltd. v. Harig, 373 N.W.2d 327, 333 (Minn.App.1985), this court concluded that a determination by the Commissioner of Economic Security that Hough Transit’s president’s wages were subject to unemployment taxes violated due process when the Department of Economic Security had notified the relator before the hearing that the sole issue it was considering was whether the relator’s drivers were employees subject to unemployment. This court stated:

The initial November 19, 1981 determination * * ⅜ did not apprise relator the Department was seeking unemployment taxes for wages paid to the company’s president. It merely stated taxes must be paid for wages paid to “your milk hauler route drivers.” This notice did not sufficiently inform relator that taxes on the president’s wages had been determined.
In order to be constitutionally sufficient, the notice should have communicated the interest at stake.

Id. (citation omitted).

Murr Plumbing was not apprised until the last business day before trial that the parties’ ownership interests would be an issue in the proceedings subsequent. In their petition, respondents requested the following relief:

1. An order declaring Murr Plumbing’s Mechanic’s Lien Statement invalid and unenforceable against the Subject Property at the time of its attempted redemption;
2. An order declaring Murr Plumbing did not have a redeemable interest in the Subject Property at the time of its attempted redemption;
3. An order directing [respondents] to return to Murr Plumbing the amount Murr Plumbing tendered to the sheriff in its attempt to redeem;
4. An order directing issuance of a Certificate of Title in the names of [respondents] only;
5. For such other and further relief as the Court deems just and equitable.

The parties had been involved in settlement negotiations regarding the percentage of the property each party owned, but these negotiations did not put Murr Plumbing on notice that this issue would be decided in the proceeding subsequent. In fact, had the respondents obtained an order declaring Murr Plumbing’s mechanic’s lien invalid and unenforceable, as they requested, there would have been no need to determine the percentage of the property Murr Plumbing owned. Murr Plumbing could have reasonably considered the proceeding subsequent to be an alternative to resolving the ownership interest issue rather than a forum for resolving the issue.

Furthermore, in their agreement that listed the percentage of the property that each party claimed to own, the parties expressly agreed that any of them could commence a suit for declaratory judgment and partition. Murr Plumbing could have reasonably believed that a suit for declaratory judgment and partition, rather than the proceeding subsequent, would be used to determine the parties’ ownership interests.

The requirements of procedural due process include notice and an opportunity to be heard. Hough Transit, 373 N.W.2d at 333. Murr Plumbing^ did not have sufficient notice that the'' ownership interests would be determined in the proceeding subsequent to prepare for trial of the issue. Therefore, Murr Plumbing’s due process rights were violated.

3. Validity of Murr Plumbing’s mechanic’s lien

Respondents argue that the trial court erred when it determined that Murr Plumbing’s lien was valid. However, an issue decided adversely to respondents is not properly before this court if no notice of review is filed. City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn.App.1996), review denied (Minn. Aug. 6, 1996). Failure to file a notice of review limits the issues on appeal to those in the notice of appeal. See Northern State Bank v. Efteland, 409 N.W.2d 541, 544 (Minn.App.1987) (failure to file notice of review bars consideration of issue). Because the respondents did not file a notice of review raising the issue of the validity of Murr Plumbing’s lien, this issue is not properly before us and we will not consider it.

DECISION

The trial court could properly determine the parties’ ownership interests in the subject property in a proceeding subsequent brought under Minn.Stat. § 508.71, subd. 2(7) (1996), but Murr Plumbing did not have sufficient notice that a determination of the ownership interests would be an issue in the proceeding subsequent brought by respondents. Therefore, Murr Plumbing’s right to due process was denied when the parties’ ownership interest were determined in the proceeding subsequent.

Reversed.


author: KLAPHAKE, Judge

text:
    In re the Marriage of Daniel James KRECH, Petitioner, Appellant, v. Virginia Louise KRECH, Respondent.
    No. C4-00-1530.
    Court of Appeals of Minnesota.
    April 10, 2001.

      Alan J. Lanners, Lanners & Olson, P.A., Plymouth, for appellant.
    Rodney H. Jensen, Kevin J. McGrath, Jensen & McGrath, P.L.L.P., Bloomington, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE and FOLEY, Judges.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KLAPHAKE, Judge

Appellant Daniel James Krech challenges the district court’s authority to reopen the judgment and decree to award custody and child support for his 20-year-old daughter, more than one year after the judgment and decree was entered. Because the district court lacks authority to reopen a judgment and decree under Minn.Stat. § 518.145, subd. 2, to add a new obligation, we reverse.

FACTS

Upon dissolution of their marriage in April 1998, respondent Virginia Krech was awarded physical custody of and child support for the parties’ son, who was a minor at the time that the stipulated judgment and decree was entered. The parties had another child, a daughter, who wyas 19 year's old and had graduated from high school at the time the judgment and decree was entered. The daughter was not provided for in the judgment and decree.

In June 1999, more than one year after the judgment and decree was entered, respondent moved to reopen the judgment and decree to award her custody of and child support for the daughter. On July 27, 1999, the court' partially granted respondent’s motion and ordered appellant to pay child support for the daughter based on her inability to support herself. After appellant’s motion to reconsider was denied, he appealed. This court dismissed the appeal as premature because the order did not determine the custody of the daughter. By order dated July 20, 2000, the district court granted respondent’s motion for custody of the daughter and sanctioned appellant for failing to pay child support as ordered by the court’s July 27, 1999 order. This appeal followed.

ISSUE

Did the district court have authority to reopen the judgment and decree to award custody and child support 14 months after the judgment and decree was entered?

ANALYSIS

The ' district court’s decision whether or not to reopen a judgment and decree will not be disturbed absent an abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn.1996). We review questions of statutory interpretation, however, dejnovo. In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn.1998).

Appellant argues that the district court did hot have authority to reopen the judgment and decree to award respondent custody and child support for the parties’ daughter. Respondent argues that the district court properly reopened the judgment and decree after determining that the 20-year-old daughter was a child at the time of the stipulated judgment and decree, based on her learning disability, which rendered her disabled and unable to support herself. “Child” is defined as

an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.

Minn.Stat. § 518.54, subd. 2 (1998). The district court has authority to require continuing child support even after a child has attained the age of 18 when that child is unable to support herself due to a mental or physical deficiency. McCarthy v. McCarthy, 301 Minn. 270, 274, 222 N.W.2d 381, 334 (1974).

To reopen a judgment and decree, however, the moving party must comply with the requirements of Minn.Stat. § 518.145, subd. 2 (1998). See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn.1997) (“sole relief from the judgment and decree lies in meeting the requirements of Minn.Stat. § 518.145, subd. 2”). “On motion and upon terms as are just, the court may relieve a party from a judgment and decree * * *, and may order a new trial or grant other relief as may be just” under the following situations:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the rules of civil procedure, rule 59.03;
(3) fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;
(4) the judgment and decree or order is void; or
(5) the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.

Minn.Stat. § 518.145, subd. 2. A motion to reopen “must be made within a reasonable time, and for a reason under clause (1), (2), or (3), not more than one year after the judgment and decree, order, or proceeding was entered or taken.” Id.

In this case, respondent’s motion was made more than one year after the judgment and decree was entered; thus, clauses (1), (2), and (3) do not apply. In addition, respondent’s motion does not claim that the judgment and decree is void. Thus, the only basis available for relief was under clause (5).

The specific language of that clause allows reopening and relief from a judgment only when “the judgment has been satisfied, released, or discharged,” when “a pri- or judgment * ⅜ ⅜ or order upon which [the current judgment] is based has been reversed or otherwise vacated,” or when “it is no longer equitable that the judgment * * * should have prospective application.” Minn.Stat. § 518.145, subd. 2(5). The latter instance, which allows reopening under principles of equity, appears broader than the first two instances; when read alone, this instance might allow reopening in a case such as this, where the equities arguably weigh in favor of requiring a parent to continue to care for a child, if necessary, even after that child becomes an adult.

However, under the canon of statutory construction known as ejusdem gener-is, where general language follows an enumeration of specific subjects, the general language is presumed to include only subjects' of a class similar to those enumerated. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (applying principle of ejusdem generis, as codified in Minn.Stat. § 645.08, subd. 3, to require that “[g]eneral words are construed to be restricted in their meaning by preceding particular words”). Application of this canon of construction here leads us to conclude that Minn.Stat. § 518.145, subd. 2(5) was intended to allow reopening only when necessary to relieve a party from an obligation that has been extinguished, or to otherwise reduce or omit a party’s obligations; it was not intended to allow a court to later add a provision not addressed in the original judgment.

We therefore conclude that the district court did not have authority to reopen the judgment and decree to add newly determined obligations of custody and child support. The relief sought was not based on the fact that the judgment had been satisfied, that the judgment was based on a prior judgment that had been reversed or vacated, or that for other reasons the judgment should no longer be prospectively-applied.

Because we conclude that the district court did not have authority to reopen the judgment and decree, the court also lacked the authority to order appellant to pay child support. We also reverse the court’s imposition of sanctions for failure to pay child support.

DECISION

Because respondent failed to meet the statutory requirements of Minn.Stat. § 518.145, subd. 2(5), the district court erred in reopening the judgment and decree.

Reversed.