O.J.M. v. U.S.

• Decision Date: 07 March 1989
• Docket Number: No. 86-490.,86-490.
• Citation: 554 A.2d 1149
• Parties: O.J.M., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

554 A.2d 1149

O.J.M., Appellant, v. UNITED STATES, Appellee.

No. 86-490.

District of Columbia Court of Appeals.

Submitted December 7, 1987.

Decided March 7, 1989.

Peter H. Meyers, Washington, D.C., appointed by this court, was on appellant's motion to dismiss appeal and to expunge court records.

Joseph E. diGenova, U.S. Atty., Chevy Chase, Md., at the time the response was filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on appellee's response to appellant's motion.

Before FERREN, BELSON, and TERRY, Associate Judges.

TERRY, Associate Judge:

Appellant was charged with possession of marijuana, in violation of D.C.Code § 33-541(d) (1988). After her motion to suppress the marijuana was denied, she was tried before the court on stipulated facts and found guilty. The court thereupon placed her on six months' probation without judgment under D.C.Code § 33-541(e)(1) (1988). She noted this appeal,¹ seeking to challenge the denial of her motion to suppress. While the appeal was pending, appellant completed her probation, and the charge against her was dismissed. Except for the records related to this appeal, all official records of her arrest and the proceedings against her have been sealed pursuant to D.C.Code § 33-541(e)(1), Appellant now moves to dismiss her appeal voluntarily. She also moves to expunge all of this court's records of the appeal and to render her anonymous in its decision on these motions by recaptioning this case with her initials only. We grant the motion to dismiss. With respect to the motion to expunge, we direct that the records of this appeal be sealed and thereafter treated as non-public records, in the same manner as the records in juvenile cases. We grant the motion to render appellant anonymous by referring to her only by initials.

A 1981 statute authorized sentencing judges in the District of Columbia, for the first time, to impose probation without judgment in certain types of drug cases.² That authorization is now found in D.C. Code § 33-541(e)(1) (1988), which provides:

If any person who has not previously been convicted of violating any provision of this chapter, or any other law of the United States or any state relating to narcotic drugs or depressant or stimulant substances, is found guilty of a violation of [section 33-541(d)] and has not previously been discharged and had the proceedings dismissed pursuant to this subsection, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him or her on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him or her from probation before the expiration of the maximum period prescribed for such person's probation. If during the period of probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him or her. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a non-public record thereof shall be retained solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime (including the penalties prescribed under § 33-548 for second or subsequent convictions) or for any other purpose.

When a defendant is discharged and criminal proceedings are dismissed under section 33-541(e)(1), that defendant

may apply to the court for an order to expunge from all official records (other than the non-public records to be retained under paragraph (1) of this subsection) all recordation relating to his or her arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this subsection. If the court determines, after hearing, that such person was dismissed and the proceedings against him or her discharged, it shall enter such order.

D.C.Code § 33-541(e)(2) (1988). The question before us here — one of first impression — is how to apply this statute to the records of an appeal when the appellant has been discharged and the proceedings dismissed in the trial court while the appeal was pending.

We find the answer in our own rule governing appeals in juvenile cases and similar proceedings. Rule 12(c) of the General Rules of this court states:

An appeal from the Family Division of the Superior Court relating to (1) juvenile, (2) adoption, (3) parentage, or (4) neglect proceedings shall be reflected on the public docket by the initials of the parties and case number of the Superior Court. In these cases the clerk shall seal the records and all documents subsequently received from the Superior Court or counsel for the parties and shall not permit review or inspection thereof by any person other than counsel of record for the parties except on order or direction of a judge of this court.

Experience has shown that this rule works. It permits the court to function smoothly and effectively in the designated types of cases, and at the same time it preserves the anonymity of the parties and bars access to the records in such cases (which would disclose their identity) except by court order.

We are persuaded to follow the procedures of Rule 12(c) in this case, and others like it, by the fact that the Superior Court has established similar procedures for dealing with cases arising under section 33-541(e)(1). According to a Memorandum of Understanding adopted by the Superior Court and various other agencies,³ when an order of discharge and dismissal under section 33-541(e)(1) is entered in any case, the court papers in that case are collected and placed in a sequestered, non-public file, accessible only to a limited class of persons under carefully controlled circumstances. Computerized dockets available to the public are revised to eliminate any means of identifying the defendant, and the case is thereafter identified only by number and the notation "Non-Public Record." Only in the non-public records retained by the court, under statutory authorization, is the defendant identified at all.

Although section 33-541(e)(2) does not expressly cover appellate court records, the government makes no contention that our records are not within its ambit. The statutory language is certainly broad enough to encompass the documents that are commonly included in an appellate record — copies of trial court pleadings, transcripts, verdict forms, probation orders, and so on — and we hold, as a matter of statutory construction, that such materials are subject to the provisions of section 33-541(e)(2), regardless of whether they are found in trial court files or appellate court files. See e.g., Doe v. Manson, 183 Conn. 183, 187, 438 A.2d 859, 862 (1981); State v. CA., 304 N.W.2d 353, 361-362 (Minn. 1981).⁴ However, since the statute permits retention of non-public records by the court for its own purposes, and since we already have in place a method of making records non-public in other types of cases, we shall adopt that method for cases arising under section 33-541(e)(2).⁵

It is therefore ORDERED that:

1. The docket in the instant appeal shall be amended forthwith by changing the name of the appellant to her initials, so that she shall henceforth be identified only as "O.J.M., Appellant" in all court records, documents, and computer entries accessible to the public, including this opinion.

2. The Clerk shall forthwith seal the record and file in this case, and thereafter shall restrict access to the record and file in the manner prescribed in Rule 12(c) of the General Rules of this Court.

3. This appeal shall be, and hereby is, dismissed.

APPENDIX

MEMORANDUM OF UNDERSTANDING RESPECTING PROCEDURES FOR IMPLEMENTATION OF 33 D.C. CODE § 541(e)

Statement of Purpose

This memorandum of understanding constitutes agreement by representatives of various components of the criminal justice system in the District of Columbia as to procedures which should apply for implementation of 33 D.C.Code § 541(e). The procedures set forth herein have been developed to facilitate prompt and orderly compliance with Orders issued by the Superior Court of the District of Columbia pursuant to Section 541(e). These procedures attempt to comply with all present statutory requirements. It is the collective view of the signatories hereto that an attempt to develop necessary procedures for implementation of § 541(e) by this vehicle is preferable to development of procedures by litigation or formal amendment of the Superior Court of the District of Columbia Criminal Rules.

I. Retention of Non-Public Records Pursuant to 33 D.C.Code § 541(e)(1)

(A) Clerk of the Superior Court of the District of Columbia

(1) Upon discharge and dismissal of proceedings against a person without adjudication of guilt pursuant to 33 D.C.Code § 541(e)(1), the Clerk of the Superior Court of the District of Columbia shall place the Order of the Court together with all other Court papers and Court records pertaining to said criminal case in a secured non-public area. The files shall be organized to be retrievable by Court case number. The Clerk shall also create a separate non-public index of said files by name of the defendant and by PDID number. These indexes shall also be non-public.

(2) The Clerk of the Court shall also remove and delete from any computer system accessible to the public, the name of the person and any and all information pertaining to the criminal case. The criminal case number,...