WHAT CAN THE JUDGE CONSIDER WHEN DECIDING ON MY EXPUNGEMENT CASE?
State v. Gamble, 891 P.2d 472 (Kan. Ct. App. 1995).
This case explored the issue of what a judge could consider when deciding an expungement case. In exploring this issue, the court referenced Kansas law which outlined three elements a judge should consider when determining whether to grant or deny an expungement. Id. at 474. A defendant must satisfy all three elements to be granted an expungement. Id. These elements included: (1) The petitioner (defendant) had not be convicted of a felony in the past two years and no proceeding involving any such crime was presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warranted the expungement; and (3) the expungement was consistent with the public welfare. Id.
In this case, the defendant pled guilty to burglary, a class D felony, and was sentenced to a term of two to seven years. Id. at 473. The district court placed him on probation (period of supervision ordered by court instead of serving time in prison) for three years. Id. In 1984, the defendant completed the probation. Id. On January 19, 1994, the defendant filed a petition to expunge the burglary conviction. Id. The petition alleged that the defendant had not been convicted of a felony in the past seven years and that no proceeding involving any such crime was presently pending or being instituted against him. Id. After a hearing by the district court, the defendant disclosed that he had been convicted in Missouri in 1986 for receiving stolen property and was still on parole for that conviction. Id. At the conclusion of the hearing, the district court denied the defendant’s petition to expunge the burglary conviction. Id.
In making their decision, the district court referenced Kansas law which required the court to order expungement if the court found: (1) The petitioner (defendant) had not be convicted of a felony in the past two years and no proceeding involving any such crime was presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warranted the expungement; and (3) the expungement was consistent with the public welfare. Id. at 474. Based on this law, the district court concluded the defendant’s continuing parole status in Missouri was a “pending proceeding.” Id. Additionally, the court referenced the defendant’s substantial criminal record as being against public welfare and another reason to deny his expungement request. Id. In response, the defendant argued that the district court erred in denying his expungement and appealed the case to the Court of Appeals of Kansas. Id.
On appeal, the court first noted that the general rule in deciding whether to grant or deny an expungement was up to the court. Id. After reviewing the district court’s decision, the court concluded that the district court erred in concluding that parole was a “pending proceeding.” Id. According to the court, both “pending” and “proceeding” represented matters that occurred in court until the court made their final decision. Id. at 475. Furthermore, in criminal cases, a final decision required a conviction and sentence or suspension of sentence. Id. Since the defendant was convicted and sentenced to parole (which satisfied a final judgment), the district court could not reason that parole was a pending proceeding. Id.
Although the district court erred in stating that parole was a pending proceeding, the court determined that the error was harmless. Id. According to the court, an error was harmless when it did not negatively affect the substantial rights of a defendant and substantial justice resulted despite the error. Id. In this case, the court determined the district court was correct in denying the defendant expungement based on his criminal history. Id. The defendant had been convicted of at least five felonies and several misdemeanors and the court concluded that allowing the defendant to be expunged would have been against public welfare. Id.