Ward v. State

Powers, J., delivered the opinion of the Court. Code, Art. 27, § 737, enacted by Acts of 1975, ch. 260, gives a person charged with the commission of a crime the right, under specified circumstances, to file a petition 1 requesting expungement of both the police records and the court records pertaining to the charge. The circumstances, listed in § 737 (a), are that the petition may be filed if the person charged (1) Is acquitted, or (2) The charge is otherwise dismissed or quashed, or (3) A judgment of probation without finding a verdict is entered, or (4) A nolle prosequi is entered, or (5) The proceeding is placed on the stet docket. Subsection (c) requires a waiting period of three years after the judgment or order before the petition may be filed, except that there is no waiting period if the person is ³⁶ acquitted (1), or if the charge is otherwise dismissed or quashed (2).

Under subsection (d), unless the State’s Attorney files an objection, the court shall enter an order requiring the expungement. If the State’s Attorney objects, subsection (e), the court shall conduct a hearing. If the person is entitled to expungement, the court shall order it, and if not, it shall deny the petition. The statute seems to lodge no discretion in the court, but to mandate either granting or denying the relief, based upon statutorily defined entitlement, or the lack of it.

Subsection (e) goes on to provide that if there was probation without finding a verdict (3), or a nolle prosequi (4), or placement on the stet docket (5), the person is not entitled to expungement if he has since been convicted of any crime (most vehicle and traffic laws or regulations excepted), or if he is then a defendant in a pending criminal proceeding. Appellant, Gary Lynn Ward, was charged in five counts of an indictment returned in Montgomery County on 5 April 1973, with murder in the second degree, manslaughter, child abuse, assault and battery, and assault. On 21 June 1973 the State entered a nolle prosequi as to all charges. On 16 August 1976, after having waited more than three years, Ward filed a petition for expungement of the records.

The State’s Attorney filed an objection, stating that on 4 November 1974 Ward was convicted of larceny under $100. At a hearing in chambers on 22 October 1976 Judge Joseph M. Mathias denied Ward’s petition to expunge the records, because of the criminal conviction. Ward’s counsel, with leave of court, filed in the case a memorandum of the constitutional questions raised at the hearing. Ward took this appeal from the order denying the petition.

Before 1 July 1975 there was no general statutory authorization for expungement of arrest records, or records of criminal courts. A specific authorization in connection with certain drug abuse cases is found in Code, Art. 27, § 292. In Doe v. Comdr., Wheaton Police Dep't, 273 Md. 262 , ³⁷ 329 A. 2d 35 (1974), the Court of Appeals held that a court of equity had subject matter jurisdiction to entertain a petition seeking expungement of arrest records in connection with a criminal charge which was terminated by entry of a nolle prosequi. The opinion relied substantially upon the inherent power of equity to provide a remedy when necessary to preserve basic legal rights, where no other remedy exists.

It said that the right of privacy is protected by the Constitution, and observed that there was then no available statutory remedy in Maryland. In this appeal Ward both relies upon the statute, Art. 27, § 737, as the basis of his right to expungement, and at the same time asserts that the statute unconstitutionally denies him equal protection and due process. He asserts no right under inherent equity jurisdiction, and, of course, his petition attempts to invoke only the statutory power of the criminal court. The questions raised, as appellant presents them, are: 1.

Does the classification of a Nolle Prosequi contained in Article 27, Section 737 (e) of the Annotated Code of Maryland violate the Equal Protection Clause of the 14th Amendment of the United States Constitution as applied to the Appellant? 2. Is the classification of a Nolle Prosequi as opposed to an Acquittal contained in Article 27, Section 737 (e) of the Annotated Code of Maryland a discriminatory classification under the Equal Protection Clause of the United States Constitution and therefore unconstitutional? 3. Is the Appellant denied due process of law when the State enters a Nolle Prosequi as opposed to trying the case, thus denying the Appellant the possibility of obtaining an acquittal so as to be entitled to expungement immediately as opposed to the three year waiting period ³⁸ required under Article 27, Section 737 (c) of the Annotated Code of Maryland when a Nolle Prosequi is entered by the State? Questions 1 and 2 seem to state the same issue in somewhat different words.

In more simple words, the argument is that it is unfair and unreasonable to give the right of expungement to an acquitted defendant immediately, but to require a three year wait by one whose case ended in a nolle prosequi. Question 3, in which appellant invokes the due