R. H. v. Mo. State Highway Patrol Criminal Records Repository, ED 107362

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Angela T. Quigless, J.
• Citation: 578 S.W.3d 398
• Parties: R. H., Appellant, v. MISSOURI STATE HIGHWAY PATROL CRIMINAL RECORDS REPOSITORY, et al., Respondents.
• Docket Number: No. ED 107362,ED 107362
• Decision Date: 09 July 2019

578 S.W.3d 398

R. H., Appellant,
v.
MISSOURI STATE HIGHWAY PATROL CRIMINAL RECORDS REPOSITORY, et al., Respondents.

No. ED 107362

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: July 9, 2019

Rhonnie Hemphill, 1027 S. Vandeventer Ave, St. Louis, Mo. 63110, for appellant.

Yvette G. Hipskind, Erika E. Zaza, Lopa M. Blumenthal, P.O. Box 861, St. Louis, Mo. 63188, 1520 Market Street, Room 4025, St. Louis, Mo. 63103, 1114 N. Market Street, Room 401, St. Louis, Mo. 63101, for respondent.

OPINION

Angela T. Quigless, J.

578 S.W.3d 400

R. H.¹ ("Appellant") appeals from the judgment of the trial court granting in part and denying in part his Petition for Expungement. Appellant asserts three points on appeal, arguing: (1) the trial court erred in concluding expungement of his second-degree burglary conviction was excluded under Section 610.140.2² because second-degree burglary is not one of the ineligible offenses listed in the statute; (2) the trial court erred in concluding expungement of his second-degree burglary conviction was excluded under Section 610.140.5 because the court applied the incorrect discharge date for the offense; and (3) the trial court erred in expunging his marijuana and trespassing arrests under Section 610.140.2 instead of closing or sealing the records pursuant to Sections 610.120, 610.105, and 557.011.2(3), as Appellant requested.

Respondents include the Missouri State Highway Patrol Criminal Records Repository (the "State") and the St. Louis City Police Department (the "City") (collectively "Respondents").³ The State agrees with Appellant’s first two arguments and concedes the trial court erred in failing to expunge Appellant’s second-degree burglary conviction. The City also agrees with Appellant’s first argument and concedes the trial court erred in finding second-degree burglary is an excluded offense under Section 610.140.2. However, the City disagrees with Appellant’s second argument and argues the judgment should nonetheless be affirmed because the second-degree burglary conviction was not eligible for expungement under Section 610.140.5.

We reverse the judgment and remand the case to the trial court for further proceedings.

Factual and Procedural Background

On October 2, 1968, Appellant was arrested for first-degree assault, but there is no record he was formally charged for this offense ("first-degree assault arrest"). On July 31, 1970, Appellant was arrested and charged with second-degree burglary. On October 19, 1970, the court found Appellant guilty of this charge, sentenced Appellant to two years in prison, suspended execution of the sentence, and placed Appellant on two years of probation ("second-degree burglary conviction"). Appellant’s probation was extended and was successfully completed on December 18, 1973. Sometime in 1972, while Appellant was on

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probation for his second-degree burglary conviction, he was arrested and charged with a felony drug offense ("felony drug charge"). On January 19, 1973, the court found Appellant guilty of this offense and sentenced him to three years of probation, which Appellant successfully completed on May 2, 1975.⁴ On February 21, 1975, Appellant was arrested for a marijuana offense, but there is no record he was formally charged for this offense ("marijuana arrest"). On July 7, 2004, Appellant was arrested for misdemeanor trespassing, but there is no record he was formally charged for this offense ("trespassing arrest").

On April 15, 2018, Appellant filed a Petition for Expungement ("Petition") pursuant to Section 610.140, requesting the expungement of records relating to four offenses: the first-degree assault arrest; the second-degree burglary conviction; the marijuana arrest; and the trespassing arrest. In the Petition, Appellant made sworn statements indicating compliance with each of the six statutory criteria for expungement under Section 610.140.2, including that he "ha[s] not been found guilty of any other misdemeanor or felony, not including violations of the traffic regulations provided under chapters 304 and 307, RSMo, during the time period specified for the underlying offense, violation, or infraction in section 610.140.5.1, RSMo [.]"

On May 30, 2018, the State filed its Answer,⁵ asserting that it did not have any records regarding the marijuana or trespassing arrests and opposing expungement of the first-degree assault arrest and second-degree burglary conviction. The State argued first-degree assault is not an eligible offense under Section 610.140.2, and Appellant did not meet the statutory requirements for expungement of the second-degree burglary conviction under Section 610.140.5 because "[Appellant] was charged with and found guilty of a felony within [seven] years from the date he completed the authorized disposition for the burglary offense." The State asserted Appellant was found guilty of the felony drug charge on January 19, 1973 and that this date appeared to fall within the seven-year period after Appellant completed his two-year probation sentence for second-degree burglary, which began on October 19, 1970.

On July 8, 2018, Appellant filed his Reply to the State’s Answer, in which he requested an oral hearing on the record. Appellant argued the second-degree burglary charge was expungeable because it was not one of the ineligible offenses listed in Section 610.140.2, and Appellant was not convicted of any felony or misdemeanor during the relevant statutory period set forth under Section 610.140.5.⁶ Appellant asserted he was never convicted on the felony drug charge because the court suspended imposition of sentence and placed him on three years of probation, which he successfully completed on May 2, 1975. Appellant also conceded his first-degree

578 S.W.3d 402

assault arrest was not eligible for expungement, and requested that the records be closed or sealed pursuant to Sections 610.105 and 557.011.2(3). Finally, Appellant clarified that he was not requesting expungement of the marijuana and trespassing charges, but rather that these records be "automatically closed" pursuant to Sections 610.105 and 557.011.2(3) "due to the fact that they were never processed either as nolle prosequi cases [sic], acquittals, refusals or dismissals."

On July 10, 2018, the court held a hearing. Appellant was present and again requested the hearing be conducted on the record. However, no court reporter was present and no record was made of the proceedings. On July 11, 2018, Appellant filed an Addendum and Amended Petition, in which he reasserted the arguments in his Reply and expressed that the second-degree burglary charge was Appellant’s "most important expungement request." Appellant also asserted that the State’s Answer included the "wrong date of conviction for the felony burglary in the second degree [conviction]."

On July 24, 2018, the State filed its Response to Appellant’s Addendum and Amended Petition, in which it withdrew its opposition to expungement of the second-degree burglary conviction. The State explained that it found original court records for this conviction showing Appellant successfully completed his probation and was discharged by the court on December 18, 1973. Based on this "new information contained in the original records," the State conceded the second-degree burglary offense was expungeable under Section 610.140.5 because Appellant’s felony drug conviction "occurred prior to, and thus outside of, the time frame [sic] specified in Section...