State v. McMahon, 87385

• Decision Date: 12 May 1998
• Docket Number: No. 4,No. 87385,87385,4
• Citation: 1998 OK CIV APP 103,959 P.2d 607
• Parties: 1998 OK CIV APP 103 STATE of Oklahoma, Appellee, v. Peter J. McMAHON, Jr., Appellant. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 607

959 P.2d 607

1998 OK CIV APP 103

STATE of Oklahoma, Appellee, v. Peter J. McMAHON, Jr., Appellant.

No. 87385.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma Division No. 4.

May 12, 1998.

Certiorari Denied July 8, 1998.

John E. Dorman, Senior Assistant City Attorney, Tulsa, for Appellees Police Department and City of Tulsa.

Rob Gallant, Assistant District Attorney, Tulsa, for Appellees District Attorney and Sheriff.

Janet Halliburton, Cheif Legal Counsel, Michelle Lindo, Legal Intern Oklahoma

State Bureau of Investigation Oklahoma City, for Appellee OSBI.

Peter J. McMahon, Jr., Florence, for Appellant pro se.

REIF, Judge.

Peter Joseph McMahon, Jr., appeals the denial of his application for the expungement of certain court and arrest records. The application listed multiple case numbers and alleged that he "was acquitted, or the charges were dismissed within one year after the arrest." Expungement is authorized in such circumstances by 22 O.S.1991 §§ 18 and 19.

A hearing was set and notice was given to the district attorney of Tulsa County, the Tulsa Police Department (the arresting agency), and the Oklahoma State Bureau of Investigation. These agencies all opposed expungement on the ground that Mr. McMahon was a "career criminal" with multiple felony convictions. Mr. McMahon asked for a continuance of the hearing in order to file a response. The trial court denied the motion for continuance and held the hearing as previously set. Mr. McMahon did not attend the hearing due to his incarceration in a federal penitentiary.

At the hearing, the trial court inquired about the cases listed by Mr. McMahon and verified their dismissal. However, the trial court concluded that the public interest favored maintaining these records as public. On appeal, Mr. McMahon contends that the trial court committed reversible error by (1) not granting the continuance; (2) proceeding ex parte; (3) deciding a matter in which the judge had a bias; and, (4) ruling without taking evidence. We reject these assignments of error and affirm.

The procedure prescribed for obtaining or opposing expungement is almost summary in nature and the issues are very narrow in scope. The procedure includes (1) the filing of a motion or petition; (2) notice to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other interested person or agency; and, (3) hearing of the petition and objections from the agencies notified. 22 O.S.1991 § 19. No response to an objection is provided. The focus of the petition, objections, and hearing is on records kept by authority of law. Those records presumptively serve the public interest. However, the legislature has recognized that, in the circumstances enumerated in section 18, such records pose a potential of "harm to the privacy of the person in interest or dangers of unwarranted adverse consequences." When one of these circumstances is shown to exist, a prima facie showing of harm is made. The burden then shifts to the agencies opposing expungement to show that keeping such records public does not harm privacy interests and would serve the ends of justice. To assess what the ends of justice require, the court is to balance the harm to privacy or other unwarranted adverse consequences to the individual against the public interest in the records. If the court is not convinced that the ends of justice are served by either expungement or keeping the records public, the court can fashion a remedy of limited access.

The record reflects that the trial court followed the statutory procedure and fully examined the court records that were placed in issue by Mr. McMahon's application. The record further reflects that the cases he tendered for review had been dismissed within one year of arrest and a prima facie case for expungement was established. Clearly, the lack of an opportunity to respond to the objections to expungement did not impair Mr. McMahon in meeting the burden cast upon him.

The record also reflects, however, that agencies opposing expungement likewise met their burden to show that keeping the court and arrest records of the dismissed cases public (1) would not harm Mr. McMahon's privacy interests and (2) would serve the ends of justice. It is sufficient to note that relevant records of Mr. McMahon's criminal history were presented by the custodial agencies...