State v. Nelson

SHARER, Judge. This appeal arises, somewhat inexplicably, from the grant of a petition for expungement. Phillip Martin Nelson, appellee, petitioned the Circuit Court for Charles County to have a nol ⁵⁶⁰ prossed criminal charge expunged, in order to facilitate his enlistment into military service. 1 His petition came to hearing five days after it was filed and two days after the State’s Attorney for Charles County was served, but before the State had answered. The court granted the petition.

Two days later, the State filed an answer objecting to the petition. The State also filed a motion to vacate the order granting the petition, which the court denied. From that denial, the State appeals, and raises two questions for our review, which we have rephrased slightly for purposes of clarity: I. Did the trial court err in granting the petition for expungement prior to the expiration of the time period provided in Maryland Code Ann., Crim. Proc. § 10-105(d)(2)?

II

Did the trial court err in ordering expungement of a charge that was part of a unit of charges as to which appellee was not entitled to expungement? This is a case of first impression. Based upon our review of the statutory criteria authorizing expungement, we conclude that the trial court was without authority to order expungement. Therefore, we shall reverse.

FACTUAL and PROCEDURAL HISTORY On July 19, 2001, Nelson was arrested for possession of stolen property, namely, vehicle license plates that were stolen from a car dealer. In a search incident to the arrest, Nelson was found to possess nine individually wrapped baggies of marijuana, each containing approximately .8 grams of marijuana. Nelson was charged, in the Circuit Court for Charles County, in a three-count information with possession with intent to distribute, possession of marijuana, and theft under $500.00. On December 7, 2001, Nelson entered a guilty plea ⁵⁶¹ to the possession count, and an Alford 2 plea to the theft count.

The State entered a nol pros to the possession with intent to distribute count. On the same day, the court sentenced Nelson to 180 days incarceration on the possession count and a concurrent 180 days on the theft count. On October 18, 2002, Nelson filed with the court a Petition for Expungement of Records and a General Waiver and Release. On October 21, 2002, the State’s Attorney’s office was served with a copy of the petition.

The petition quickly came to hearing on October 28, 2002. No one from the State’s Attorney’s Office attended. At the hearing, the following occurred: THE COURT: This is—we don’t have anybody here from the State. THE CLERK: Do you want me to call?

THE COURT: No. They were notified. They chose not to be here. That is their decision. The court then granted Nelson’s request to expunge Count 1, the possession with intent to distribute charge that had previously been nol prossed.

On the following day, October 24, 2002, the State’s Attorney’s office filed an Objection to the Petition for Expungement, which stated that Nelson was not entitled to the ex-pungement of the possession with intent to distribute charge. The State argued that the charge was part of a unit of offenses and, because Nelson was not entitled to expungement as to the charges to which he was convicted, he was not entitled to expungement of the other charge in the unit. Nelson’s entitlement to the remedy of expungement is determined by Md.Code Ann., Crim. Proc. § 10-105(a)(200.1 & Supp.2002), which provides Expungement of record after charge is filed. ⁵⁶² (a) Petition for expungement.—A person who has been charged with the commission of a crime, including a violation of the Transportation Article for which a term of imprisonment may be imposed, 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: (1) the person is acquitted; (2) the charge is otherwise dismissed; (3) a probation before judgment is entered, unless the person is charged with a violation of § 21-902 of the Transportation Article or Title 2, Subtitle 5 or § 3-211 of the Criminal Law Article; (4) a nolle prosequi is entered; (5) the court indefinitely postpones trial of a criminal charge by marking the criminal charge “stet” on the docket; (6) the case is compromised under § 3-207 of the Criminal Law Article; (7) the charge was transferred to the juvenile court under § 4-202 of this article; or (8) the person: (i) is convicted of only one criminal act, and that act is not a crime of violence; and (ii) is granted a full and unconditional pardon by the Governor.

As to the theft and possession charges, Nelson was not acquitted, (§ (a)(1)); the charges were not dismissed (§ (a)(2)); a probation before judgment was not entered (§ (a)(3)); a nolle prosequi was not entered (§ (a)(4)); the court did not enter a stet (§ (a)(5)); the case was not compromised under § 3-207 of the Criminal Law Article (§ (a)(6)); the charges were not transferred to the juvenile court (§ (a)(7)); and Nelson was not convicted of just one criminal act (§ (a)(8)). By exclusion, therefore, since Nelson was not eligible for expungement pursuant to one of the enumerated sub-sections, it is clear that he was not entitled to expunge ⁵⁶³ ment. He was convicted, upon his guilty plea, of two criminal acts, both arising out of the same transaction, as defined in Md.Code Ann., Crim. Proc. §§ 10-107(a) and (b).

Because the order for expungement was entered before the State filed an answer, the State, on the same day, October 24, filed a Motion to Vacate Order of Expungement, reiterating the objection outlined above, and further arguing that the State was entitled to a hearing, pursuant to § 10-105 of the Criminal Procedure Article. By handwritten notation dated November 6, 2002, the trial court denied the State’s Motion to Vacate Order of Expungement. The State noted this timely appeal. 3 DISCUSSION I. Did the trial court err in granting the petition for expungement prior to the expiration of the time period provided in Maryland Code Ann., Crim. Proc. § 10—105(d)(2)?

As we have set out, supra, the State argues first that the circuit court erred in holding a hearing on the petition prior to the expiration of the time that Maryland law provides for the State to answer, and object to, a petition for expungement. Section 10-105 of the Criminal Procedure Article provides in subsection (a) that a petition for expungement may be filed by a “person who has been charged with the commission of a crime” in certain proscribed circumstances, including when “a nolle prosequi is entered” on the charge. Md.Code Ann., Crim. Proc. § 10-105(a) (2001 & Supp.2002).

Subsections (d) and (e) provide, in pertinent part: ⁵⁶⁴ (d) Period for objection by State’s Attorney.—(1) The court shall have a copy of a petition for expungement served on the State’s Attorney. (2) Unless the State’s Attorney files an objection to the petition for expungement within 30 days after the petition is served, the court shall pass an order requiring the expungement of all police records and court records about the charge. (e) Hearing on expungement.—(1) If the State’s Attorney files a timely objection to the petition, the court shall hold a hearing. (2) If the court at the hearing finds that the person is entitled to expungement, the court shall order the expungement of all police records and court records about the charge.

(3) If the court finds that the person is not entitled to expungement, the court shall deny the petition. Md.Code Ann., Crim. Proc. §§ 10-105(d) & (e) (2001 & Supp. 2002). Md. Rule 4-505(b)(2002) provides: (b) Answer to petition.

Within 30 days after service of a petition for expungement, the State’s Attorney shall file an answer, and serve a copy on the petitioner or the attorney of record. Md. Rule 4-507(b)(2002) provides: (b) On petition. In the case of a petition for expungement, a hearing shall be held only if the State’s Attorney or law enforcement agency objects to the petition by way of timely answer. Here, the State argues that the circuit court erred when it conducted the expungement hearing prior to the lapse of the time provided in § 10-105(d)(2) for the State to file an objection.

The petition came to hearing five days after it was filed with the court, and three days after it was served upon the State’s Attorney’s office. Although undisputably served with the petition, the State was not represented at the hearing. The form of notice to the State of the hearing is not set out in ⁵⁶⁵ the record. As to the adequacy of notice to the State, the record reveals only the following: THE COURT: This is—we don’t have anybody here from the State.

THE CLERK: Do you want me to call? THE COURT: No. They were notified. They chose not to be here. That is their decision.

While there is nothing more in the record to indicate how, when, or by whom the State was notified, we accept that the State’s Attorney’s office was given notice of the hearing. Likewise, the record reveals no justification for the