W.S. v. Jackson Cnty. Prosecutor, WD 82664

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Gary D. Witt, Judge
• Citation: 593 S.W.3d 94
• Parties: W.S., Appellant, v. JACKSON COUNTY PROSECUTOR, et al., Respondents.
• Docket Number: WD 82664
• Decision Date: 28 January 2020

593 S.W.3d 94

W.S., Appellant,
v.
JACKSON COUNTY PROSECUTOR, et al., Respondents.

WD 82664

Missouri Court of Appeals, Western District.

OPINION FILED: January 28, 2020

F.A. White, Jr., Kansas City, MO, for appellant.

Jamie K. Hunt, and Jennifer M. Addadi, Kansas City, MO, for respondents.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

W.S. ("Appellant")¹ appeals the judgment of the Circuit Court of Jackson County denying, in part, his petition for expungement. W.S. raises one allegation of error contending that the circuit court erred in its application of section 610.140.5.² The judgment is affirmed in part, reversed in part, and the case is remanded with instructions.

Factual and Procedural Background

The facts of this case are not in dispute, and in fact the parties have filed with this Court a Joint Request for Remand to Trial Court, jointly requesting this Court remand the case back to the trial court for further action consistent with R.G. v. Missouri State Highway Patrol , 580 S.W.3d 38 (Mo. App. W.D. 2019) as both parties acknowledge that R.G. "resolves all issues on appeal."

593 S.W.3d 96

On July 12, 2018, W.S. filed a Petition for Expungement in the circuit court ("Petition"). W.S. sought expungement of his 2000 conviction for felony possession of a controlled substance with the intent to distribute in violation of section 195.211³ ("2000 Conviction") and his 2003 conviction for misdemeanor possession of drug paraphernalia in violation of Lee's Summit city ordinance 17-237 ("2003 Conviction"). The Petition named as defendants: the Circuit Court Division 28, City of Lee's Summit Municipal Division, the Missouri State Highway Patrol ("Highway Patrol"), the Prosecuting Attorney of Jackson County, the Jackson County Sheriff's Department, the Kansas City, Missouri Municipal Police Department, and the Lee's Summit Police Department. The Highway Patrol filed an Answer alleging that W.S. was ineligible for expungement. The Board of Police Commissioners of Kansas City, Missouri, also filed a "Response" to the Petition alleging it was unable to located records pertaining to W.S.'s arrest but refrained from consenting to the expungement.

The circuit court held a hearing on March 14, 2019 ("Hearing"). The evidence established that W.S. was convicted of felony possession of a controlled substance with intent to distribute on August 28, 2000. He was sentenced to three years' probation with a suspended imposition of sentence. The court revoked W.S.'s probation on April 26, 2002, and sentenced him to three years' imprisonment, with execution of that sentence suspended and a three year term of probation. W.S. completed the authorized disposition of his 2000 Conviction on April 26, 2005, and an order discharging him from probation was issued on May 31, 2005.

On December 4, 2003, W.S. was convicted of misdemeanor possession of drug paraphernalia by the Lee's Summit Municipal Court. He was convicted and sentenced to ten days in jail with execution of sentence suspended for a two year term of probation. W.S. completed the authorized disposition of his 2003 Conviction on December 4, 2005.

The Highway Patrol produced evidence that, subsequent to the two convictions now sought to be expunged, W.S. had additional convictions. On September 27, 2005, the Cass County Circuit Court convicted W.S. of misdemeanor possession of up to 35 grams of marijuana in violation of section 195.202⁴ ("2005 Conviction") with a suspended imposition of sentence and one-year of unsupervised probation. He completed his probation on September 27, 2006. On April 10, 2007, W.S. was convicted in the Pleasant Hill Municipal Court of a violation of section 28-109 of the Pleasant Hill Missouri Code, however, the court ultimately determined this not to be a misdemeanor pursuant to Missouri's Criminal Code.⁵

In arguing against expungement, the Highway Patrol contended that W.S. was ineligible for expungement because his 2005 Conviction from Cass County occurred less than seven years after the completed authorized disposition of his felony 2000 Conviction and less than three years from the completed disposition of his 2003 Conviction.

The circuit court entered its Judgment of Partial Expungement on March 14, 2019 ("Judgment"). The court found that W.S. was entitled to expungement of his 2003 Conviction because section 610.140.5 only prohibits expungements...