In re Vincent S.
| Citation | 255 Md.App. 163,278 A.3d 770 |
| Parties | IN RE Expungement Petition of VINCENT S. |
| Decision Date | 05 July 2022 |
| Court | Court of Special Appeals of Maryland |
Submitted by: David J. Preller, Jr. (Preller & Preller, on the brief), Towson, MD, for Appellant
Submitted by: Benjamin A. Harris (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee
Panel: Kehoe, Leahy, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.
Kehoe, J. Maryland's statutes pertaining to expungement are codified as Title 10, Subtitle 1 of the Criminal Procedure Article. Crim. Proc. § 10-105(c)(9) authorizes courts to grant petitions for expungement "at any time on a showing of good cause." The issue in this appeal is whether the exercise of this authority is limited to the relatively narrow class of records that can be expunged pursuant to § 10-105 or whether it extends to the much broader universe of records that can be expunged pursuant to Crim. Proc. § 10-110. Vincent S. urges us to give a broad reading to § 10-105(c)(9). It is the State's view that we should construe subsection (c)(9) narrowly. We agree with the State.
Mr. S. filed two petitions for expungement of convictions and related court and police records in the Circuit Court for Baltimore County pursuant to Crim. Proc. § 10-110. After a hearing, the circuit court denied both requests. Mr. S. has appealed both judgments.1 He presents five questions for our review, which we have consolidated and rephrased as follows:
Did the circuit court err when it denied Mr. S.’s expungement petitions?2
We will affirm the judgments of the circuit court.
On September 25, 2001, Mr. S. pled guilty to two counts of first-degree burglary. The court imposed a five-year suspended sentence with two years of supervised probation and ordered Mr. S. to pay restitution in the amount of $1,600. He failed to pay the restitution in full. On June 26, 2003, he pled guilty to violating a condition of probation and was sentenced to "time served." There is a notation on the clerk's worksheet to the effect that the case was closed unsatisfactorily and that the matter was referred to the State Central Collection Unit for collection of the balance of the unpaid restitution. It appears that Mr. S. made no further efforts to pay the restitution until the CCU garnished his wages in 2016. Mr. S. ultimately paid the court-ordered restitution, as evidenced by an order of satisfaction filed by the State on May 8, 2018 acknowledging that "this case has been paid, settled, and satisfied."
On June 4, 2002, Mr. S. was convicted of felony theft of property with a value of $500 or more.3 The court sentenced him to five years of incarceration, all but three consecutive weekends suspended, together with three years of supervised probation. The court also ordered him to pay restitution in the amount of $1,300. In 2005, Mr. S. appeared before the District Court and admitted to violating the terms of his probation. Consequently, the court imposed two years of the previously suspended sentence, less 126 days credited for time served.
On November 3, 2003, Mr. S. pled guilty to one count of misdemeanor possession of drug paraphernalia, and the District Court sentenced him to pay a fine of $50.
Finally, on March 1, 2005, the District Court convicted Mr. S. of acting as a home improvement contractor without a license in violation of Md. Code, Bus. Reg. § 8-601(a). The court sentenced him to 30 days of incarceration and ordered him to pay $3,200 in restitution.
On March 10, 2020, Mr. S. filed two petitions requesting that the circuit court employ the authority granted to it by Md. Code, Crim. Proc. § 10-110 to enter orders expunging "all police and court records" relating to his first-degree burglary and felony theft convictions. In each petition, he averred that:
On April 13 and 16, 2020, the State filed answers to the petitions. Pertinent to the issues raised on appeal, the State asserted that:
(1) Mr. S.’s first-degree burglary and felony theft were "not yet eligible for expungement" because of Mr. S.’s subsequent criminal convictions; and
(2) Mr. S. was not eligible for expungement of any of his convictions because he had been convicted of acting as a contractor without a license in violation of Bus. Reg. § 8-601. The State pointed out that this offense is not among the crimes eligible for expungement enumerated in Crim. Proc. § 10-105 or Crim. Proc. § 10-110. The State maintained that Mr. S. had not established that he had satisfied the sentences imposed for his first-degree burglary convictions 15 years prior to filing his expungement petition as required by Crim. Proc. § 10-110(a).4
On May 26, 2021, the circuit court held a hearing on both petitions. The arguments presented to the court are substantively the same as presented to us and we will summarize them shortly. At the close of the hearing, the court deferred ruling from the bench to provide Mr. S.’s counsel with an opportunity to file a post-hearing memorandum of law. After reviewing the memorandum, the court issued orders denying each petition.
Whether a petitioner is statutorily entitled to the expungement of a prior arrest or conviction is a question of
law, which we review de novo. See In re Expungement of Dione W ., 243 Md. App. 1, 3, 219 A.3d 63 (2019). As a general rule, "[t]he [expungement] 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." State v. Nelson , 156 Md. App. 558, 568, 847 A.2d 1184 (2004) (cleaned up). For this reason, "a court has no discretion to deny the remedy of expungement if a person has demonstrated his or her statutory entitlement to it." Id.
As we have previously noted, the Maryland statutes pertaining to expungement are set out in Title 10, Subtitle 1 of the Criminal Procedure Article. The two pieces of this complicated statutory scheme that are relevant to the parties’ contentions are Crim. Proc. §§ 10-105 and -110.
In very broad strokes, § 10-105(a) authorizes courts to grant expungement petitions when: (1) the petitioner was acquitted, the charges were nolle prossed, stetted, dismissed pursuant to Crim. Law § 3-207,5 or transferred to the juvenile court; (2) the petitioner was convicted "of only one criminal act, and that act is not a crime of violence" and subsequently receives "a full and unconditional pardon by the Governor"; (3) the petitioner was convicted or found to be not criminally responsible for a number of minor, non-violent offenses, e.g ., panhandling; or (4) the petitioner was convicted of possession of marijuana pursuant to Crim. Law § 5-601.
The statute also sets time limitations for filing expungement petitions. Crim. Proc. § 10-105(c)(1) provides that a petition for expungement based upon an acquittal, a nolle prosequi, or a dismissal for most of the offenses listed in the statute may not
be filed within three years of the date of disposition, unless the petitioner files a waiver and release of all tort claims arising from the charge; § 10-105(c)(4) states that an expungement petition based upon a gubernatorial pardon must be filed within ten years of the date that the pardon was signed by the Governor; and § 10-105(c)(8) provides that a petition for a conviction of possession of marijuana may not be filed within four years of the date of conviction. Finally, § 10-105(c)(9) states that "[a] court may grant a petition for expungement at any time on a showing of good cause."
Section 10-105(c)(9) is the centerpiece of Mr. S.’s appellate contentions.
Crim. Proc. § 10-110 authorizes courts to grant expungement petitions for a variety of more serious offenses, including felony theft, § 10-110(a)(2)(i), and first-degree burglary, § 10-110(a)(2)(iii). Pertinent to the contentions raised by the parties, § 10-110(c)(3) provides that a petition for expungement of a felony conviction "may not be filed earlier than 15 years after the person satisfies the sentence or sentences imposed for all convictions for which expungement is requested, including parole, probation, or mandatory supervision[.]" Additionally, § 10-110(d)(1) states:
If the person is convicted of a new crime during the applicable time period set forth in subsection (c) of this section, the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.
As we have noted, in 2005, Mr. S. was convicted of acting as a home improvement contractor without a license in violation of Bus. Reg. § 8-601(a). This offense is not included in the list of offenses eligible for expungement in either Crim. Proc. § 10-105 or § 10-110.
To this Court, Mr. S. first asserts that he has satisfied the statutory criteria for expungement of the 2001 burglary convictions and the 2002 felony theft conviction. This is clearly not correct. As the State points out in its briefs, Mr. S. finished paying the restitution ordered by the court for the
burglary conviction in 2018. Fifteen years has not expired since 2018. And, as to both the burglary and the theft convictions, Mr. S. was subsequently convicted of violating Bus. Reg. § 8-601(a). Because this conviction is not eligible for expungement, his theft and burglary convictions are also "not eligible for expungement." Crim. Proc. § 10-110(d)(1).
Mr. S.’s second argument is based on Crim. Proc. § 10-105(c)(9), which...
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