G.E.D. v. Mo. State Highway Patrol, No. SD 35871

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: WILLIAM W. FRANCIS, JR., J.
• Citation: 591 S.W.3d 922
• Parties: G.E.D., Petitioner-Respondent, v. MISSOURI STATE HIGHWAY PATROL, Defendant-Appellant.
• Decision Date: 08 January 2020
• Docket Number: No. SD 35871

591 S.W.3d 922

G.E.D.,¹ Petitioner-Respondent,
v.
MISSOURI STATE HIGHWAY PATROL, Defendant-Appellant.

No. SD 35871

Missouri Court of Appeals, Southern District, Division One.

Filed: January 8, 2020

Appellant’s Attorney: Eric S. Schmitt, Attorney General, of Jefferson City, MO and Ronald Q. Smith Assistant Attorney General of Springfield, Missouri.

Respondent’s Attorney: William E. Lawrence, of Ozark, Missouri.

WILLIAM W. FRANCIS, JR., J.

The Missouri State Highway Patrol ("the MSHP")² appeals the trial court’s judgment expunging a criminal record of G.E.D. In one point, the MSHP argues that the trial court erred in granting expungement in that G.E.D. pled guilty to a subsequent misdemeanor less than seven years after his felony conviction, rendering him ineligible for expungement pursuant to section 610.140.³ Finding no merit in the

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MSHP’s point, we deny the same and affirm the judgment of the trial court.

Facts and Procedural History

On July 20, 2018, G.E.D. filed a petition in the Circuit Court of Christian County seeking the expungement of his conviction for the class C Felony of possession of a controlled substance, in Christian County Case No. CR029700315. The MSHP filed a motion to dismiss, arguing that expungement was barred, pursuant to section 610.140, in that G.E.D. completed disposition of his felony on November 3, 2003, and was subsequently found guilty of a misdemeanor on March 27, 2007, less than seven years after disposition of the felony sentence for which he was seeking expungement.

A hearing on the motion to dismiss was held on October 31, 2018, and was subsequently denied.

An evidentiary hearing on the petition for expungement was held on November 7, 2018. G.E.D. testified that he was seeking expungement of his felony arrest that occurred on November 12, 1997, and that he completed his sentence on or about November 3, 2003. G.E.D. admitted that he pled guilty to the class B misdemeanor of failure to register a motor vehicle, on or about March 27, 2007, in Greene County, Missouri.

On November 8, 2018, the trial court entered judgment granting the expungement. This appeal followed.

In one point on appeal, MSHP argues that the trial court erred in granting expungement because the trial court lacked discretion to do so pursuant to section 610.140.

Standard of Review

In this court-tried case, the judgment of the circuit court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. The trial court’s application of statutory requirements is a question of law rather than fact and is reviewed de novo.

S.Y. v. Askren , 581 S.W.3d 721, 722 (Mo. App. W.D. 2019).

Analysis

In MSHP’s sole point, it argues that "the trial court erred in granting expungement" in that "the trial court had no discretion" to do so. MSHP argues that section 610.140 should be interpreted to require that "petitioner has not been found guilty of any other disqualifying misdemeanor or felony for at least seven years from the date the petitioner completed any authorized disposition under section 557.011," and that G.E.D. failed to meet that requirement because he "pled guilty to a subsequent misdemeanor less than four years after such a disposition."

The issue before us is whether the good-behavior provision of section 610.140.5(2) is to be measured: (1) forward from the time petitioner completed disposition from the conviction sought to be expunged, or (2) backward from the time petitioner files his petition for expungement.

As relevant here, section 610.140.5 recites:

At any hearing, the court may accept evidence and hear testimony on, and

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consider, the following criteria for each of the offenses, violations, or infractions listed in the petition for expungement:

(1) At the time the petition

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