In re Trey H.

• Docket Number: 0550-2021
• Decision Date: 01 February 2022
• Parties: IN RE EXPUNGEMENT PETITION OF TREY H.
• Court: Court of Special Appeals of Maryland

1

IN RE EXPUNGEMENT PETITION OF TREY H.

No. 0550-2021

Court of Special Appeals of Maryland

February 1, 2022

Circuit Court for Prince George's County Case No CJ074071

Fader C.J., Berger, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Fader C.J.

This appeal concerns the interpretation and application of two grounds for expungement. One generally permits expungement of criminal records related to a charge for which "a probation before judgment is entered," provided, as relevant here, (1) that the petition is filed no earlier than three years after probation was granted and (2) that, within three years of the entry of the probation before judgment, the petitioner was not "convicted of a crime other than a minor traffic violation" or a crime that "is no longer a crime." Md. Code Ann., Crim. Proc. § 10-105(a)(3), (c)(2), (e)(1)(4) (2018 Repl.; 2019 Supp.). The second generally permits expungement of criminal records where "the person was convicted of possession of marijuana under § 5-601 of the Criminal Law Article," provided, as relevant here, that the petition is not "filed within 4 years after the conviction or satisfactory completion of the sentence, including probation, that was imposed for the conviction, whichever is later." Crim. Proc. § 10-105(a)(12), (c)(8).

The appellant, Trey H., petitioned the Circuit Court for Prince George's County to expunge records related to a 2007 marijuana possession charge for which he received a disposition of probation before judgment. The circuit court treated the relevant expungement provision as that applicable generally to probations before judgment and determined that Mr. H. was not eligible for expungement because he had been convicted of two other offenses within three years after entry of the probation before judgment. For that reason, we agree that Mr. H. is not eligible for expungement under the provision generally applicable to probation before judgment dispositions. However, we conclude that Mr. H. is eligible for expungement under the provision generally applicable to marijuana possession convictions. Accordingly, we will reverse and remand the case with instructions to grant Mr. H.'s expungement petition.^[1]

BACKGROUND

In November 2007, Mr. H. received a citation for possession of marijuana in violation of § 5-601 of the Criminal Law Article and consumption of alcohol in a public place in violation of then-Article 2B, § 19-202 (recodified as § 6-321 of the Alcoholic Beverages Article by 2016 Md. Laws, ch. 41 § 1). Mr. H. pleaded guilty to possession of marijuana and received probation before judgment, pursuant to which he was ordered to serve six months of unsupervised probation.

Within the three years following entry of probation before judgment, Mr. H. pleaded guilty to two other offenses. In May 2008, Mr. H. pleaded guilty to one count of possession of marijuana in violation of § 5-601 of the Criminal Law Article. That conviction has since been expunged, although apparently not until after the circuit court proceedings in this case. In March 2009, Mr. H. pleaded guilty to one count of possession of paraphernalia in violation of § 5-619 of the Criminal Law Article. As of the date of this opinion, that conviction has not been expunged.

In 2019, Mr. H. filed a petition in the Circuit Court for Prince George's County in which he sought expungement of his probation before judgment disposition on the 2007 marijuana possession charge. The circuit court denied the petition because of Mr. H.'s 2008 and 2009 convictions.

In March 2020, Mr. H. filed another expungement petition. The State again objected on the grounds of Mr. H.'s two subsequent convictions, which it argued precluded expungement of a probation before judgment disposition. In a reply to the State's opposition, Mr. H. argued that even if he did not meet the criteria for expungement of a standard probation before judgment disposition, he met the criteria for expungement of a marijuana possession conviction. In May 2021, the court denied Mr. H.'s petition based on his two subsequent convictions.

Mr. H. noted this timely appeal.

DISCUSSION

Under the expungement provisions at issue in this appeal, an individual who is eligible for expungement of a criminal record is entitled to expungement of that record. See Reid v. State, 239 Md.App. 1, 13 (2018). Indeed "[t]he statute seems to lodge no discretion in the court, but to mandate either granting or denying the relief, based upon statutorily defined entitlement, or the lack of it." Ward v. State, 37 Md.App. 34, 36 (1977). "It follows that, on appeal, a person's eligibility for expungement is a question of law that is subject to de novo review." In re Expungement Petition of Dione W., 243 Md.App. 1, 3 (2019).

Mr. H.'s Probation Before Judgment Record Is Eligible for Expungement Under Criminal Procedure § 10-105(a)(12).

A. The Relevant Statutory Scheme

In recent decades, the General Assembly has expanded the types of criminal records individuals are entitled to have expunged. See, e.g., 2017 Md. Laws, ch. 801 (authorizing expungement of marijuana possession charges under § 10-105(a)(12) of the Criminal Procedure Article); 2015 Md. Laws, ch. 374 (authorizing expungement of records where the basis for the conviction is no lunger a crime under § 10-105(a)(11) of the Criminal Procedure Article); 2015 Md. Laws, ch. 314 (amending provisions of the expungement statute related to probation before judgment); see also 2020 Md. Laws, ch. 21 (prohibiting Judiciary Case Search from including reference to certain marijuana possession charges).

Subtitle 1 of Title 10 of the Criminal Procedure Article provides rights of expungement based on both type of charge and disposition of charge. Section 10-110 of the Criminal Procedure Article permits a person to seek expungement of 27 different categories of misdemeanor offenses and three different categories of felony offenses. Crim. Proc. § 10-110(a). Such petitions may not be filed earlier than ten, or in some instances, 15 years after the person "satisfies the sentence or sentences imposed . . . including parole, probation, or mandatory supervision." Id. § 10-110(c). Such petitions may not be granted if the person has been convicted of a new crime, unless that conviction is also eligible for expungement, and the court must find that "the person is not a risk to public safety" and "that an expungement would be in the interest of justice." Id. § 10-110(f). Section 10-110 applies to violations of § 5-601 of the Criminal Law Article, but only to the extent that they do not involve "the use or possession of marijuana."^[2] Id. § 10-110(a)(1)(viii).

The primary provision permitting expungement based on the disposition of charges is Criminal Procedure § 10-105, which provides for expungement of criminal records relating to charges leading to the following dispositions: acquittal, dismissal of charges, probation before judgment, nolle prosequi, stet, transfer to juvenile court, and not criminally responsible of certain offenses. Crim. Proc. § 10-105(a)(1), (2), (3), (4), (5), (6), (7), (10). Section 10-105 also provides for expungement of records where there was a guilty verdict but the offense was non-violent and the defendant received a full pardon, the act on which the conviction was based is no longer a crime, or the conviction was vacated because the defendant was a victim of human trafficking. Id. § 10-105(a)(8), (11), (13).

Only two provisions of § 10-105 permit expungement based exclusively on the specific type of charge. First, § 10-105(a)(9) provides for expungement where the person was convicted of or found not criminally responsible for one of the following offenses:

(i) urination or defecation in a public place;

(ii) panhandling or soliciting money;

(iii) drinking an alcoholic beverage in a public place;

(iv) obstructing the free passage of another in a public place or a public conveyance;

(v) sleeping on or in park structures, such as benches or doorways;

(vi) loitering;

(vii) vagrancy; (viii) riding a transit vehicle without paying the applicable fare or exhibiting proof of payment; or

(ix) except for carrying or possessing an explosive, acid, concealed weapon, or other dangerous article as provided in § 7-705(b)(6) of the Transportation Article, any of the acts specified in § 7-705 of the Transportation Article;

Second, § 10-105(a)(12) provides for expungement where "the person was convicted of possession of marijuana under § 5-601 of the Criminal Law Article."

Here, we are concerned with § 10-105(a)(3), which permits expungement of records where the charges resulted in a disposition of probation before judgment; and § 10-105(a)(12), which permits expungement of possession of marijuana convictions.

A petition for expungement based on § 10-105(a)(3) must be filed by the later of "the date the petitioner was discharged from probation" or "3 years after the probation was granted." Crim. Proc. § 10-105(c)(2). Notably, unless the crime of which the person was convicted is no longer a crime, a person is not eligible for expungement based on the entry of a probation before judgment if "the person within 3 years of the entry of the probation before judgment has been convicted of a crime other than a minor traffic violation or a crime where the act on which the conviction is based is no longer a crime." Id. § 10-105(e)(4)(i).

Criminal records related to charges resulting in a probation before judgment disposition have been eligible for expungement since 1975.^[3] See 1975 Md. Laws, ch. 260 (adding §§ 735 - 741 to Article 27 of the Maryland Code) ("If a person is charged with the commission of a crime and . . . a judgment of probation without finding a verdict is entered . . . he may...