WHAT DOES THE TERM PENDING CASE MEAN FOR EXPUNGEMENT PURPOSES?

State v. Gamble, 891 P.2d 472 (Kan. Ct. App. 1995).

This case explored the issue of what the term “pending proceeding” meant in the context of an expungement. In exploring this issue, the court concluded that both “pending” and “proceeding” denoted matters that occurred in court until the court made their final decision. Id. at 475. In essence, an individual could not receive an expungement if the individual had another lawsuit out against him or her and the court had not yet made a final decision on the lawsuit. 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. Therefore, the district court found the defendant did not meet all three elements and denied the expungement request. Id.

After review, the appeals court concluded that the district court’s decision to deny the defendant’s expungement because his parole was a “pending proceeding” was an error. Id. In making this statement, the appeals court defined both “pending” and “proceeding.” Id. at 474-75. According to the court, “pending” was generally understood to mean: begun, but not yet completed; during; before the completion of; and unsettled. Id. at 474. Thus, an action or suit was “pending” from the time the suit was brought to the court until the court made their final decision. Id. Additionally, the court defined “proceeding” as being synonymous with the terms “action” or “suit.” Id. at 475.

In sum, the court identified both “pending” and “proceeding” as denoting matters that occurred in court until the court made their final decision. Furthermore, in criminal cases, the court stated that a final decision required a conviction and sentence or suspension of sentence. Therefore, 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.