Jackson v. State

JAMES S. GETTY, Judge (retired), Specially Assigned. At the conclusion of a court trial in the Circuit Court for Baltimore City, Kenneth Jackson’s petition for expungement of a nolle prosequi entered by the State on December 12, 1979, was denied. 1 Judge Joseph P. McCurdy, Jr., denied appellant’s petition based upon the fact that he was convicted of another criminal offense, punishable by imprisonment, that occurred after the entry of the nolle prosequi. Appellant contends that the statutory provisions governing expungement of a nolle prosequi, set forth in Md.Code Ann. Art. 27, sec. 737, violated both the Rule of Lenity and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We disagree with appellant’s argument and explain our reasons for affirming the decision of the trial court.

By way of background, we point out that prior to July 1, 1975, the legislature had not provided any statutory procedure for expunging arrest records or criminal court records. Art. 27, sec. 737, adopted by Chapter 260, Laws of 1975, provides for expungement of police and court records under certain statutory conditions of entitlement. The statute allows for no discretion in deciding questions of entitlement to expungement; relief is either granted or denied based upon compliance with the requirements of the statute. ⁶² Art. 27, sec. 737(a), provides that a person charged with the commission of a crime may file a petition requesting expungement of the records pertaining to the charge if: (1) The person is acquitted, (2) The charge is otherwise dismissed or quashed, (3) A judgment of probation before judgment is entered, (4) A nolle prosequi is entered, (5) The proceeding is placed on the stet docket, (6) The case is compromised pursuant to article 27, sec. 766 of this Code, (7) The person is convicted of only one criminal act, which is not a crime of violence, and is subsequently granted a full and unconditional pardon by the Governor, or (8) The case was transferred to juvenile court jurisdiction under Sec. 594A of this article. Article 27, sec. 737, subsections (d), (e), (f), (g) and (h) set forth the earliest date for filing a petition for expungement'.

Generally, a petition may not be filed earlier than three years after the date of disposition of charges. The three year limitation applies to disposition by acquittal, nolle prosequi, dismissal of a charge, probation before judgment, stet, or compromise. In case of an unconditional pardon by the Governor, the petition may not be filed earlier than five years nor later than ten years after the signing of the pardon. Subsection (h), however, allows a court to grant a petition of expungement “at any time” on a showing of good cause by the petitioner.

Article 27, sec. 737(j), relates to a hearing by the court. It provides: If the State’s Attorney files a timely objection to the petition, the court shall conduct a hearing. If the court finds that the person is entitled to expungement, it shall enter an order requiring the expungement of police records and all court records pertaining to the charge. Otherwise, it shall deny the petition.

If the petition is based upon the entry of a judgment of probation before judgment, a nolle prosequi, ⁶³ placement on the stet docket, or a full and unconditional pardon by the Governor, the person is not entitled to expungement if: (1) He has since been convicted of any crime, other than violations of the State vehicle laws or other traffic laws, ordinances or regulations not carrying a possible sentence of imprisonment; or (2) He is then a defendant in a pending criminal proceeding. Discussion Appellant argues that the Rule of Lenity 2 applies herein, because “an ambiguity exists in the language of the statute.” The language appellant refers to as creating an ambiguity appears in Art. 27, sec. 737(j)(l), to-wit: “has since been convicted of any crime other than violations of the state vehicle laws.... ” Appellant finds the statute unclear as to whether the word since refers to the institution of the nolle prosequi, the filing of the petition for expungement, or to some other point in time. Under the Rule of Lenity, appellant opts for the predicate action being the filing of the petition for expungement. As best we can discern from the stipulation of facts, appellant was convicted of a criminal offense involving incarceration after the entry of the nolle prosequi on December 12, 1979, but prior to the initiation of the expungement proceedings.

Thus, under appellant’s construction of the statute, he is eligible for expungement because he has not been convicted of a crime since he filed his petition to expunge the nolle prosequi. Clearly, the legislature did not intend denial of expungement to be predicated only on offenses occurring after the filing of the petition. We explain. The Rule of Lenity is intended to resolve an ambiguity, not create one where none exists.

Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994). The Rule is not applicable ⁶⁴ herein because the statute is not ambiguous. When interpreting statutory language, we give the words of the statute their ordinary and natural meaning absent some indication to the contrary. Atkinson v. State, 331 Md. 199, 215 , 627 A.2d 1019 (1993).

The words “since been convicted” clearly