State v. S.T.

• Decision Date: 23 December 2016
• Docket Number: NO. 218-2015-CR-01774,218-2015-CR-01774
• Parties: STATE OF NEW HAMPSHIRE v. S.T.
• Court: New Hampshire Superior Court

STATE OF NEW HAMPSHIRE v. S.T.¹

NO. 218-2015-CR-01774

State of New Hampshire Superior Court Rockingham S.S.

December 23, 2016

ORDER GRANTING PETITION TO ANNUL

S.T., the petitioner, was found not guilty of all charges—two counts of aggravated felonious sexual assault (AFSA) and two counts of felonious sexual assault (FSA)—after a three-day jury trial in June 2016. He now seeks to annul the court and arrest records associated with these charges. By order dated September 20, 2016, the Court rejected the State's argument that RSA 651:5, V (2016) "imposes a categorical bar to annulments for anyone whose 'case' involved a violent crime, regardless of whether that case ultimately resulted in a conviction." Order Scheduling Hr'g Pet. Annul 4. After concluding that the petition to annul was "timely" under RSA 651:5, I, the Court scheduled a hearing on the merits of the petition. At this hearing, the State withdrew its objection to the petition.

After considering the merits of the annulment petition in light of the applicable law, the Court hereby GRANTS the petition to annul for the reasons stated below.

Analysis

"RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments." United States v. Howe, 167 N.H. 143, 146 (2014). Paragraph I of the statute provides:

Except as provided in paragraphs V-VIII, the record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner's rehabilitation and will be consistent with the public welfare

. The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.

RSA 651:5, I (holding and emphasis added). In its September 20, 2016 order, the Court concluded that the current petition was "timely brought" pursuant to paragraph II of the statute. See Order Scheduling Hr'g Pet. Annul 3, 28. That paragraph provides:

Any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section.

RSA 651:5, II (emphases added). Because the petitioner requested a hearing on the merits of his timely brought petition, the Court scheduled such a hearing. See RSA 651:5, I; Order Scheduling Hr'g Pet. Annul 28.

At that hearing, the State withdrew its objection to the petition. This objection was withdrawn not because the State agreed that the petition should be granted, but rather because the Court's September 20, 2016 order had rejected the only argument the State had offered in its objection—that RSA 651:5, V imposed a categorical bar to annulment in this case. In effect, the State chose not to supplement its objection by addressing the merits of the petition to annul and instead took no position on the issue.

Although the State has withdrawn its objection to the petition, albeit on procedural grounds, the Court must still assess the merits of the annulment petition. See McGann v. Steenstra, 130 N.H. 411, 412 (1988) ("We construe the language in [former Superior Court] Rule 58 as requiring that a trial judge decide whether or not to grant the motion only after the judge has considered the law and the pleadings before the court."); see also Super Ct. Civ. R. 13 ("Failure to object shall not, in and of itself, be grounds for granting the motion."); accord N.H. R. Crim. Pro. 15(b)(5) (containing identical provision for pretrial motions in Superior Court criminal cases); cf. State v. Baker, 164 N.H. 296, 298-300 (2012) (remanding annulment petition to trial court for consideration of factors identified by Supreme Court, even though State had not objected to petition at trial court level and had not opposed part of petition on appeal).

The New Hampshire Supreme Court has never directly addressed whether this Court must apply the standard set forth in paragraph I to a petition to annul arrest records and court records from a case that falls within paragraph II of the statute. Indeed, in a recent non-precedential final order, the Supreme Court declined to reach the defendant's argument that "RSA 651:5, II does not require a judicial finding that annulment of a non-conviction must be consistent with the public welfare." State of New Hampshire v. Angelo Palmer, No. 2014-0272 (N.H. Jan. 20, 2015) (citation and quotation omitted). That argument has not been raised here, however. Accordingly, the Court assumes, without deciding, that the standard from paragraph I applies to cases resulting in an acquittal. Pursuant to this standard, the Court may grant the petition if it finds that the annulment of the arrest records and court records "will assist in the petitioner's rehabilitation and will be consistent with the public welfare." RSA 651:5, I. While the New Hampshire Supreme Court has identified a number of "potential factors" the trial court may consider in deciding whether to grant a petition to annul under the standard set forth in paragraph I, Baker, 164 N.H. at 300, there is a dearth of authority regarding what factors the trial court should consider in applying that standard to cases that did not result in a conviction. The absence of any guidance on this issue makes this Court's task more challenging, given that many of the factors identified as relevant to public welfare in the conviction context have limited applicability in cases resulting in acquittal. The following excerpt from Baker illustrates this point:

In deciding whether annulment is consistent with the public welfare, the trial court should weigh the factors in favor of annulment, such as evidence of the defendant's exemplary conduct and character since his last conviction, against the public interest in keeping his convictions a matter of public record. Cf. In re Lobasso, 33 A.3d 540, 548 (N.J. Super. Ct. App. Div. 2012) (discussing expunging criminal records under statute requiring State to prove that "need for the availability of records" outweighs "desirability of having a person freed from any disabilities" associated with criminal record (quotations omitted)). Thus, in exercising its discretion, the court may consider such factors as the number and circumstances of the convictions at issue, the defendant's age at the time of each conviction, the time span of the convictions, and the particular manner in which annulment would aid the defendant's rehabilitation—for example, by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those convicted of a crime. By identifying potential factors, we do not intend to limit the court's discretion to consider any relevant factor.

Baker, 164 N.H. at 300 (emphases added).

With a view towards filling the void of authority on this subject, the Court herein suggests factors that may be relevant in applying the standard to non-conviction cases. The Court first examines how annulment may assist in the "rehabilitation" of a petitioner whose case did not result in a conviction, before turning to factors the Court should weigh in deciding whether that annulment would be "consistent with the public welfare."

I. Whether the Annulment Will Assist in the Petitioner's Rehabilitation

The decision in Baker directs the Court to consider "the particular manner in which annulment would aid the defendant's rehabilitation." Id. In general, an annulment aids a person's rehabilitation by "reducing] the collateral consequences of a criminal arrest." Grafton County Attorney's Office v. Canner, 169 N.H. ___, ___, 147 A.3d 410, 412 (2016). These collateral consequences often materialize when the individual seeks employment. See Order Scheduling Hr'g Pet. Annul 13. They are not limited to the employment context, however; they also arise when the individual seeks housing or Otherwise engages in an activity that requires a criminal background check. See id. at 18: see also Com. v. Malone, 366 A.2d 584, 588 (Pa. Super. Ct. 1976) ("Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved." (quotation omitted)); cf. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) ("It is sufficient to say here that an arrest record alone can create serious adverse consequences for those who have been arrested in the past, notwithstanding the ultimate disposition of the case.").

One of the ways in which an annulment can aid an individual's rehabilitation is "by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those" with a criminal record. Baker 164 N.H. at 300. Furthermore, even where an arrest record does not expressly disqualify an individual from a profession, the practical consequence of having such a record is often equivalent to disqualification because of the reluctance of employers to hire someone with a criminal record. See United States v. McKnight, 33 F. Supp. 3d 577, 585-86 (D. Md. 2014). "For manyemployers, the bar on hiring anyone with a criminal record includes applicants whose records consist of only an arrest, not a conviction: a group that constitutes one-third of all felony arrests." Id. at 586 (quoting Paul-Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status and Employment Discrimination in the Information Age, 100 VA. L. REV. 893, 896 (2014)). As such, individuals like the petitioner have a significant "interest in being free from the career-stifling effects of an arrest record." Com. v. Hanna, 964 A.2d 923, 927 (Pa. Super. Ct. 2009).

By removing the stigma associated with past involvement in the criminal justice system, annulment improves the individual's ability to seek gainful...