People v. McCullough

• Decision Date: 24 January 1997
• Docket Number: Docket No. 188860
• Citation: 561 N.W.2d 114,221 Mich.App. 253
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles Lonnell McCULLOUGH, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 114

561 N.W.2d 114

221 Mich.App. 253

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles Lonnell McCULLOUGH, Defendant-Appellee.

Docket No. 188860.

Court of Appeals of Michigan.

Submitted Nov. 20, 1996, at Lansing.

Decided Jan. 24, 1997, at 9:15 a.m.

Released for Publication April 9, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Joyce

F. Todd, Assistant Prosecuting Attorney, for People.

Sommers, Schwartz, Silver & Schwartz, P.C. by Lawrence Warren, Kenneth T. Watkins, and Carl B. Downing, Southfield, for defendant-appellee.

Before McDONALD, P.J., and MURPHY and J.D. PAYANT ^*, JJ.

MURPHY, Judge.

The people appeal as of right the circuit court's order entered pursuant to M.C.L. § 780.621; M.S.A. § 28.1274(101) setting aside defendant's April 23, 1982, guilty plea convictions of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798 and assault with intent to commit sexual penetration, M.C.L. § 750.520g(1); M.S.A. § 28.788(7)(1). We reverse and remand.

M.C.L. § 780.621; M.S.A. § 28.1274(101) states, in relevant part, that "a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction." A person must satisfy this threshold requirement in order to be granted expungement. Defendant argued in the trial court that, although he pleaded guilty of two crimes, these crimes should be considered "not more than 1 offense" for expungement purposes. Although defendant's argument is legitimate in light of previous decisions of this Court, we are compelled to reverse.

In People v. Blachura, 176 Mich.App. 717, 719, 440 N.W.2d 1 (1989), the defendant was convicted of five counts of perjury on the basis of five false statements made during the defendant's two days of testimony before a grand jury. This Court held that the defendant was not entitled to expungement because the "statements, while all relating generally to a corruption investigation involving the Oakland County Drain Commission, were five separate and distinct false statements addressing different aspects of the investigation." Id. The implication of Blachura is that if a defendant's offenses were not "separate and distinct," they may be considered "not more than 1 offense" and the defendant would be entitled to expungement. However, on the basis of the language of the act as a whole, we consider this position to be incorrect.

When construing statutory language, first and foremost, we must give effect to the intent of the Legislature. Reardon v. Dep't of Mental Health, 430 Mich. 398, 407, 424 N.W.2d 248 (1988). If the language of the statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent, and judicial construction is not permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 136, 545 N.W.2d 642 (1996). In such cases, we must simply apply the statute as written. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995). Criminal statutes must be strictly construed, with each word interpreted according to its ordinary usage and common meaning. People v. Gilbert, 414 Mich. 191, 210-213, 324 N.W.2d 834 (1982).

Throughout the act, the Legislature refers to setting aside "the" conviction, and more importantly, M.C.L. § 780.624; M.S.A. § 28.1274(104) states that a person "may have only one conviction set aside under" the act. We consider this language to be clear, unambiguous, and a reflection of the legislative intent to allow only a single conviction to be expunged. Therefore, even if we were to agree with defendant's claim that he is "a person convicted of not more than 1 offense," and hold that he meets the threshold requirement for expungement, the trial court's action would still be improper because two convictions were expunged. Defendant pleaded guilty of two crimes--assault with intent to commit sexual penetration and unarmed robbery. While it can be argued that, because defendant offered his guilty plea only once and received only one sentence, he has only one conviction, on the basis of the act's definition of "conviction" ¹ and the ordinary usage and common meaning of the term, we disagree and consider defendant to have two convictions. Therefore, the trial court abused its discretion by setting aside two convictions. By granting expungement of defendant's record, the trial court implicitly interpreted the language in M.C.L. § 780.624; M.S.A. § 28.1274(104) that "only one conviction" can be set aside as the equivalent of "any number of convictions received while committing any number of crimes which do not amount to more than one offense" can be set aside. Because the language in M.C.L. § 780.624; M.S.A. § 28.1274(104) is clear and unambiguous, the act cannot be interpreted as such, and must be applied as written.

Logically then, the question becomes whether defendant is entitled to have one of his convictions set aside. To answer this question, we must address the meaning of the threshold requirement that a person must have been convicted of not more than one offense. ² In light of the fact that the purpose behind the act is to expunge the entire criminal record of one-time offenders who satisfy the requirements of the act, see Blachura, supra at 720, 440 N.W.2d 1, and the act speaks in terms of setting...