L.F.W. v. Mo. State Highway Patrol Criminal Records Repository
| Decision Date | 10 October 2019 |
| Docket Number | 35746 & 35747 CONSOLIDATED,Nos. SD 35745,s. SD 35745 |
| Citation | 585 S.W.3d 846 |
| Parties | L.F.W., Jr., Petitioner-Respondent, v. MISSOURI STATE HIGHWAY PATROL CRIMINAL RECORDS REPOSITORY, et al., Respondents-Appellants. |
| Court | Missouri Court of Appeals |
ATTORNEY FOR APPELLANT – RONALD Q. SMITH, Springfield, MO.
ATTORNEY FOR RESPONDENT – LESLEY A. HALL, Joplin, MO.
The State of Missouri (Criminal Records Repository of the Missouri State Highway Patrol) ("State") appeals the three judgments expunging criminal records of L.F.W., Jr. ("L.W."). The State argues L.W.'s records were ineligible for expungement pursuant to section 610.140 because: (1) his arrest involved a violation of state law regulating the operation of a motor vehicle and L.W. had been issued a commercial driver's license ("CDL"); and (2) his petitions for expungement were filed prematurely.1 We agree, and reverse.
On March 28, 2016, L.W. was operating a commercial motor vehicle when he was issued three citations by the Missouri State Highway Patrol.2 The first citation ("Case 1") listed the offense as "[f]ailed to register nonresident commercial motor vehicle – reciprocal agreement: NO temporary" in violation of section 301.277. L.W. was arrested and fingerprinted in connection with the Case 1 citation.3 The second citation ("Case 2") listed the offense as "operating commercial motor vehicle without [a] seatbelt" in violation of section 307.400. The third citation ("Case 3") listed the offense as "[o]perat[ing] as an [i]nter-state motor fuel user without being licensed as such" in violation of section 142.830. On all three citations, in the space where L.W.'s driver's license number was listed, the box was checked "yes" under the "CDL" heading. Case 1 was later dismissed. The original charges in Cases 2 and 3 were later amended, and L.W. ultimately pled guilty to driving without a seatbelt (Case 2) and a defective equipment infraction (Case 3).4
On February 13, 2018, L.W. filed three amended expungement petitions with attached exhibits, including the original related citation in each case. In the first petition (Case 1), the "dismissed" case, he sought expungement of records related to "failure to register." In the second petition (Case 2), he sought expungement of records related to a plea of guilty to "operating w/o seatbelt." In the third petition (Case 3), he sought expungement of records related to a plea of guilty to "defective equipment."
The trial court held a hearing on May 24, 2018. At the hearing, no witnesses testified but the State's attorney argued that the filing was premature as three years had not passed. The court took the case based on the "verified petitions" and orally granted expungement on all three cases. On June 4, 2018, the court entered its written "Order of Expungement" in each of the three cases granting expungement of L.W.'s criminal records.
On July 3, 2018, the State filed motions on each case to reconsider the court's expungement orders. In these motions, the State alleged L.W. "possessed, or was required to possess a [CDL]" at the time of his arrest or when he committed the offense, therefore L.W. was "not eligible for expungement[.]" The court made no ruling on the motions to reconsider. On November 19, 2018, the court filed three "Judgment[s]" of expungement.5 The State timely appealed, and the three appeals were consolidated by order of this Court.6
In a court-tried case, the standard of review is governed by Murphy v. Carron . W.C.H. v. State , 546 S.W.3d 612, 614 (Mo. App. E.D. 2018) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ); R.G. v. Missouri State Hwy. Patrol , 580 S.W.3d 38, 40 (Mo. App. W.D. 2019). The trial court's judgment will be affirmed "unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." W.C.H. , 546 S.W.3d at 614. The application of statutory requirements is a question of law, not fact, and will be reviewed de novo. Id .
The State raises two points on appeal: 1) that the trial court erred in ordering expungement because L.W. had been issued a CDL and was not eligible to have his records expunged as the offenses involved the regulation of motor vehicles; and 2) that L.W.'s petitions were filed prematurely.7 With respect to Case 1, the State's point regarding the CDL has merit. With respect to Case 2 and Case 3, the State's point regarding the time requirements for filing a petition for expungement has merit.
Section 610.140 states any person "may apply to any court in which such person was charged or found guilty of any offenses, violations, or infractions for an order to expunge records of such arrest, plea, trial, or conviction." § 610.140.1. Not all offenses are eligible for expungement, however, because section 610.140.2 "sets forth a list of ten categories of offenses, violations, and infractions" ineligible for expungement. R.H. v. Missouri State Hwy. Patrol Crim. Records Repository , 578 S.W.3d 398 (Mo. App. E.D. 2019). Section 610.140 states:
§§ 610.140.2 and 610.140.2(10).8
Whether section 610.140.2(10)'s prohibition on expungement for certain categories of offenses applies to L.W.'s petitions is not an issue of fact but an issue of statutory interpretation. For such issues, this Court's job is "to discern the intent of the legislature from the language used." Spradling v. SSM Health Care St. Louis , 313 S.W.3d 683, 686 (Mo. banc 2010). Issues of statutory interpretation are subject to de novo review. Newsome v. Kansas City, Mo. Sch. Dist. , 520 S.W.3d 769, 780 (Mo. banc 2017). Because "the language in section 610.140.2 is clear and unambiguous," the words must be given their "plain and ordinary meanings." R.H. , 578 S.W.3d at 403.
In Case 1, the citation alleged a violation of section 301.277. This statute "regulat[es] the operation of motor vehicles," because section 301.277 requires "that the operator of any vehicle for which reciprocal privileges are claimed must have in his possession a valid and legal registration certificate or other evidence of proper registration issued for such vehicle by the state or other jurisdiction in which it is registered." § 610.140.2(10), § 301.277.2; see generally § 301.271-.279 ().
The evidence before the trial court was that L.W. "had been issued a [CDL]." The Case 1 citation showed the box checked "yes" for "CDL." L.W. held a CDL on the date the citation was issued. The charge on the citation stated "Failed to register nonresident commercial motor vehicle – reciprocal agreement: NO temporary[.]"
L.W.'s ineligibility for an expungement in Case 1 is for an arrest, and not for a conviction, because this case was dismissed. Section 610.140.6, which applies to arrest records, states:
6. A petition to expunge records related to an arrest for an eligible offense, violation, or infraction may be made in accordance with the provisions of this section to a court of competent jurisdiction in the county where the petitioner was arrested no earlier than three years from the date of arrest; provided that, during such time, the petitioner has not been charged and the petitioner has not been found guilty of any misdemeanor or felony offense.
§ 610.140.6 (emphasis added). Because this statute refers to an "eligible" offense, violation, or infraction, it does not permit the expungement of arrest records related to infractions deemed ineligible under section 610.140.2. Since L.W.'s purported violation regulated the operation of a motor vehicle, and since he had been issued a CDL, his arrest record was not eligible for expungement under section 610.140.2(10).9
L.W. attempts to avoid reversal of his Case 1 expungement by arguing that the State failed to preserve its point 1 argument when it failed to raise this issue at the original hearing. The State's motion to reconsider, raising the CDL issue, was filed on July 3, 2018, within thirty days after the trial court's Order of Expungement. However, the Orders of Expungement in all three cases were interlocutory until "Judgment[s]" were entered on November 19, 2018. See Rule 74.01; Henderson , 566 S.W.3d at 599 (). Here the Judgment was not rendered until November and the trial court had the opportunity to revise its decision. See McMahan v. Missouri Dept. of Soc. Servs. , 980 S.W.2d 120, 126-27 (Mo. App. E.D. 1998) (). "An issue must be presented to the trial court to be preserved for appeal." Brown v. Brown , 423 S.W.3d 784, 788 n.5 (Mo. banc 2014). Under Rule 78.07, though a party may not be required to file a post-trial motion, if they have the opportunity to file such a motion but fail to, their argument will not be preserved. See In Interest of I.K.H. , 566 S.W.3d 629, 632 (Mo. App. S.D. 2018). Here, the State preserved its argument on appeal because the State filed its motions to reconsider after the court's Orders of Expungement were entered, but before the final Judgments, and while those "Orders" were still subject to change. The State's argument was preserved.
L.W. does not dispute he had a CDL, but instead argues there was no evidence before the trial court of his driver's license status. L.W. argues the State did not introduce the citations...
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