Robert B. v. State

PAUL A. HACKNER, J., Specially Assigned. On March 20, 2009, the Circuit Court for Baltimore City denied Appellant Robert B.’s 1 petition for expungement of a criminal charge on the ground that he was not qualified for an expungement under Md.Code (2001, 2008 RepLVbl., 2009 Cum. Supp.), § 10-105(e)(4) of the Criminal Procedure Article (“CP”). Appellant challenges that order, and presents a single question for review.

As we have restated it, the question before this Court is whether the circuit court committed error in denying Robert B.’s expungement because he was a “defendant in a pending criminal proceeding,” as contemplated by CP § 10-105(e)(4). For the reasons that follow, we hold that the circuit court committed legal error and we will reverse and remand the matter to the circuit court for further proceedings. FACTS AND PROCEEDINGS Appellant was charged with possession with intent to distribute and simple possession of a controlled dangerous substance in the District Court of Maryland for Baltimore City on June 7, 2008. On August 7, 2008, the State entered a nolle prosequi on the possession with intent to distribute charge, leaving only the simple possession count for trial.

On Septem ⁶²⁵ ber 9, 2008, the case was transferred to the Circuit Court for Baltimore City after appellant requested a jury trial. A nolle prosequi was entered on the remaining possession charge on October 6, 2008. Appellant filed a petition for expungement of both charges in accordance with CP § 10-105(a) on February 6, 2009. The petition was accompanied by a general waiver of any liability claim against the Baltimore City Police Department.

At the time he filed the petition, appellant was on probation for a prior armed robbery conviction that resulted from a guilty plea on July 25, 2007, in the Circuit Court for Howard County. Due to appellant’s probationary status, the State objected to the petition for expungement, contending that appellant “has been charged with a crime.” The circuit court denied the petition for expungement, concluding that appellant was “a defendant in a pending criminal proceeding” because of his probationary status, and that he was therefore ineligible to obtain an expungement under CP § 10 — 105(e) (4) (ii) (2). Appellant subsequently noted this appeal. DISCUSSION Subtitle 1 of Criminal Procedure Article Title 10 deals with expungements in Maryland.

First enacted in 1975, this subtitle sets forth the petition process and eligibility requirements to obtain an expungement. A criminal charge concluded by the entry of a nolle prosequi is generally subject to expungement under the statute: § 10-105. Expungement of record after charge is filed (a) A person who has been charged with the commission of a crime[] may file a petition listing relevant facts for expungement of a police record, court record, or other record maintained by the State or a political subdivision of the State if: ⁶²⁶ (4) a nolle prosequi or nolle prosequi with the requirement of drug or alcohol treatment is entered[.] However, that section limits the right to expungement as follows: (e)(4) The person is not entitled to expungement if: (i) the petition is based on the entry of probation before judgment, a nolle prosequi, a stet, including a nolle prosequi with the requirement of drug or alcohol abuse treatment, a conviction for a crime specified in subsection (a)(9) of this section, or the grant of a pardon by the Governor; and (ii) the person: 1. since the full and unconditional pardon, entry, or conviction has been convicted of a crime other than a minor traffic violation; or 2. is a defendant in a pending criminal proceeding. (Emphasis added).

Thus, the statute precludes expungement under two circumstances. First, a person is ineligible under subsection (e)(4)(ii)(l) if he “has been convicted of a crime other than a minor traffic violation” since the entry of a nolle prosequi. 2 Second, a person is ineligible under subsection (e)(4)(ii)(2) if he is “a defendant in a pending criminal proceeding.” The issue before this Court is whether the fact that appellant was on probation makes him “a defendant in a pending criminal proceeding” as contemplated by CP § 10-105(e) (4)(ii)(2). The issue presented is purely a question of law. Therefore, this Court must determine whether the result reached by the trial court was legally correct without giving deference to the legal conclusion of the trial court.

White, et al. v. The Pines Community Improvement Assoc., Inc., et al., 403 Md. 13, 31 , 939 A.2d 165 (2008); YIVO Institute for Jewish Research v. Zaleski, 386 Md. 654, 662-63 , 874 A.2d 411 ⁶²⁷ (2005); Nesbit v. Government Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879 (2004). A. Principles of Statutory Interpretation “ ‘The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.’ ” Stoddard v. State, 395 Md. 653, 661 , 911 A.2d 1245 (2006) (quoting Walzer v. Osborne, 395 Md. 563, 571 , 911 A.2d 427 (2006)). The Court of Appeals has stated that, “[t]o determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning.” State Dept. of Assessments and Taxation v. Maryland-Nat'l Capital Park & Planning Comm’n, 348 Md. 2, 13 , 702 A.2d 690 (1997); Montgomery County v. Buckman, 333 Md. 516 , 636 A.2d 448 (1994). “ ‘Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.’ ” Chow v. State, 393 Md. 431, 443 , 903 A.2d 388 (2006) (quoting Witte v. Azarian, 369 Md. 518 , 801 A.2d 160 (2002)).

See also Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886 (2004). “When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature’s intent.” Marriott Employees Fed. Credit Union v. MVA, 346 Md. 437 , 697 A.2d 455 (1997). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Stoddard, 395 Md. at 661 , 911 A.2d 1245 . See also Walzer, 395 Md. at 571 , 911 A.2d 427 (quoting Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994)). Additionally, “[w]e neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engaged in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Taylor v. NationsBank, N.A., 365 Md. 166 , 776 A.2d 645 (2001). See also Chow, 393 Md. at 443 , 903 A.2d 388 . “ ‘If there is no ambiguity in th[e] language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends....’” ⁶²⁸ Stoddard, 395 Md. at 662 , 911 A.2d 1245 (quoting Chow, 393 Md. at 443-44 , 903 A.2d 388 ). “If the language of the statute is ambiguous, however, then ‘courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of [the] enactment [under consideration].’” Stoddard, 395 Md. at 662 , 911 A.2d 1245 (quoting Fraternal Order of Police v. Mehrling, 343 Md. 155, 174 , 680 A.2d 1052 , (1996) (quoting Tucker v. Fireman’s Fund Ins.

Co., 308 Md. 69, 75 , 517 A.2d 730 (1986))). The Court of Appeals has explained that there is ambiguity in a statute “when there exist ‘two or more reasonable alternative interpretations of the statute.’ ” Stoddard, 395 Md. at 662 , 911 A.2d 1245 (quoting Chow, 393 Md. at 444 , 903 A.2d 388 ). In construing a statute, “[w]e avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Blake v. State, 395 Md. 213, 224 , 909 A.2d 1020 (2006) (citing Gwin v. MVA, 385 Md. 440, 462 , 869 A.2d 822 (2005)); see also Frost v. State, 336 Md. 125, 137 , 647 A.2d 106 (1994). Additionally, “the meaning of the plainest language is controlled by the context in which it appears.” State v. Pagano, 341 Md. 129, 133 , 669 A.2d 1339 (1996).

Because the language is a part of the context in which it is found, “related statutes or a statutory scheme that fairly bears on the fundamental issue of legislative purpose or goal must also be considered.” Gordon Family Partnership v. Gar On Jer, 348 Md. 129, 138 , 702 A.2d 753 (1997) (citing Popham v. State Farm Mutual Insurance Company, 333 Md. 136, 148 , 634 A.2d 28 (1993)). “Thus, not only are we required to interpret the statute as a whole, but, if appropriate, in the context of the entire statutory scheme of which it is a part.” Id. B. Probation is not a “pending ” criminal proceeding The expungement provisions of Subtitle 1 of Title 10 of the Criminal Procedure Article do not define the term “pending” as it is used in § 10-105(e)(4)(ii)(2). Nevertheless, there is no reason to think, nor do the parties suggest, that the term ⁶²⁹ “pending” is ambiguous on its face. When interpreting an unambiguous statutory term, that term is defined by its common understanding.

Chow, 393 Md. at 443 , 903 A.2d 388 ; Stoddard, 395 Md. at 661 , 911 A.2d 1245 . The Court of Appeals has said that, “[w]hen the term in a statute is a legal term, absent any legislative intent to the contrary, the term is presumed to be used in its legal sense.” Montgomery County v. Wildwood Medical Center, L.L.C., 176 Md.App. 731, 741 , 934 A.2d 484 (2007) (citing Dean v. Finder, 312 Md. 154, 161 , 538 A.2d 1184 (1988)). We believe the term “pending,” as it is commonly understood and used in its basic legal sense, means the period of time beginning with the inception of an action and ending at the entry of a final judgment. For instance, Black’s Law Dictionary defines the term “pending” to mean “[rjemaining undecided; awaiting decision <a pending case>.” Black’s Law Dictionary 1169 (8th ed. 2004).

As will be explained below, this definition is supported by case law, which establishes that every criminal action begins when charges are initiated and ends when a judgment is entered. In the context of a criminal case, the judgment consists of the sentence imposed by the court. A criminal case begins upon a “formal charge, preliminary hearing, indictment, information, or arraignment.” Webster v. State, 299 Md. 581 , 474 A.2d 1305 (1984) (citing Jackson v. State, 17 Md.App. 167, 171-72 , 300 A.2d 430 (1973); cert. denied, 268 Md. 749 (1973)). “The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice.

For it is only then that the adverse positions of government and defendant have solidified.” Jackson, 17 Md. App. at 171 , 300 A.2d 430 (1973) (quoting Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 , (1972)). A criminal proceeding is completed when a “sentence is imposed on a verdict of guilty. That is when judgment is entered.” Chmurny v. State, 392 Md. 159 , 896 A.2d 354 (2006). See also Tweedy v. State, 380 Md. 475 , 845 A.2d 1215 (2004); Greco v. State, 347 Md. 423, 433 , 701 A.2d 419 ⁶³⁰ (1997); Whack v. State, 338 Md. 665 , 659 A.2d 1347 (1995); Myers v. State, 303 Md. 639, 645 , 496 A.2d 312 (1985).

For purposes of appeal, judgment in a criminal case is final and appealable once a guilty verdict has been returned and a sentence imposed. A guilty verdict alone may not be appealed. Jones v. State, 298 Md. 634, 637 , 471 A.2d 1055 (1984). “Until sentence, and with it a judgment, is entered, the presumption of innocence continues to exist; it is the judgment that rebuts and erases that presumption.” Chmurny, 392 Md. at 168 , 896 A.2d 354 . See also McCoy v. Court of Appeals of Wisconsin Dist. 1, 486 U.S. 429, 436 , 108 S.Ct. 1895 , 100 L.Ed.2d 440 (1988) (“After a judgment of conviction has been entered, however, the defendant is no longer protected by the presumption of innocence.”).

Giving the expression its “natural and ordinary meaning,” we conclude that a criminal proceeding is “pending” for purposes of CP § 10 — 105(e)(4)(ii)(2) beginning with the formal charges, and ending upon entry of a judgment in the form of a sentence. 1. Case Law In Blythe v. State, 161 Md.App. 492, 561 , 870 A.2d 1246 (2005), this Court held that a defendant still serving a sentence was not a defendant in a “pending criminal proceeding in the context of the Maryland Public Information Act (MPIA).” 3 In that case, Blythe made an MPIA request to obtain records from the State Attorney’s Office relating to his murder convictions in 1997. Blythe was still serving his sentence when the request was made. The State’s Attorney denied Blythe’s MPIA request on the ground that because his sentence was not complete, he was a defendant in a “pending criminal case” and that “disclosure would interfere with a valid ⁶³¹ and proper law enforcement proceeding.” This Court rejected that argument, stating: If the County were correct that the mere possibility that a post-conviction petition might be filed compelled the conclusion that the criminal case was still pending, no criminal case would ever be final and the reasoning of the Faulk opinions would have been pointless.

As long as a convicted defendant is still serving a sentence or is on parole or probation, the possibility of filing a post-conviction petition or a writ of federal habeas corpus or a writ of coram nobis is always present. Faulk’s language about there being no harm in temporarily deferring the disclosure “until the termination of a criminal proceeding” would be meaningless. The deferral would be a permanent denial. Id. at 561 , 870 A.2d 1246 . 4 In Whack v. State, 338 Md. 665 , 659 A.2d 1347 (1995), the Court of Appeals considered whether the defendant had been “convicted” of a predicate offense so as to subject him to an ⁶³² enhanced sentence under former Article 27, Section 286(c)(1) which was part of the Controlled Substances Act. 5 At the time the subsequent offense was tried, a petition for writ of certiorari with respect to the prior conviction was still pending in the Court of Appeals.

Nevertheless, the trial court ruled that Whack’s conviction for the predicate offense qualified him for an enhanced sentence. The Court of Appeals agreed and defined the term “convicted” in its “legal and technical sense, to mean following judgment or sentence.” 6 Whack had argued that he should not have been deemed “convicted” until all avenues of appellate review were exhausted. The Court rejected that argument, holding that once a judgment has been entered, it remains conclusive and final until set aside on appeal. “Convictions are a verity until set aside, and the use of prior convictions pending on appeal for punishment enhancement in another case is permissible.” Id., 338 Md. at ⁶³³ 675 , 659 A.2d 1347 (citing State v. Swartz, 140 Ariz. 516 , 683 P.2d 315, 318 (1984)). The possibility that the judgment, or any portion of it, may be set aside in a pending appeal does not affect the finality of the judgment. 7 Since a criminal judgment is conclusive despite the possibility of being set aside on appeal, it stands to reason that Appellant’s conviction is conclusive even though his probation may later be revoked.

An appeal from a criminal conviction addresses the merits of the underlying judgment and can result in the judgment being overturned. By contrast, a violation of probation arises independently from the underlying case. It does not alter the original judgment, even though the court can order execution of a previously suspended jail term. 8 One cannot reconcile a statutory interpretation that a criminal proceeding remains “pending” during probation, but that it ⁶³⁴ is not “pending” during appeal. We may not interpret a statute in a manner that would be “illogical” and “inconsistent with common sense,” a construction of the statute we must avoid.

Blake, 395 Md. at 224 , 909 A.2d 1020 . 2. Statutory Context and Interpretation A reading of the expungement statute as a whole supports the conclusion that a criminal proceeding is not “pending” under CP § 10-105(e)(4)(ii)(2) merely because a defendant is on probation in that proceeding when he applies for expungement of a record of another proceeding that was nol prossed. CP § 10-105(c) describes the time requirements for filing a petition for expungement. 9 Certain provisions of this section specifically mention completion of probation as a condition precedent to obtaining an expungement. For instance, subsection (c)(6) reads: “[A] petition for expungement based on the conviction of a crime under subsection (a)(9) 10 of this section may not be filed within 3 years after the conviction or ⁶³⁵ satisfactory completion of the sentence, including probation, that was imposed for the conviction, whichever is later (emphasis added).” This language expresses the legislature’s intention that for the enumerated offenses, the waiting period for expungement extends beyond conviction and the entry of a judgment.

The use of the word “or” in (c)(6), indicates that a “conviction” means something