                          In the Missouri Court of Appeals
                                  Eastern District
                                                   DIVISION ONE

R. H.,                                                       )         No. ED107362
                                                             )
           Appellant,                                        )         Appeal from the Circuit Court
                                                             )         of City of St. Louis
vs.                                                          )
                                                             )
MISSOURI STATE HIGHWAY PATROL                                )
CRIMINAL RECORDS REPOSITORY,                                 )         Honorable Joan L. Moriarty
et al.,                                                      )
                                                             )
           Respondents.                                      )         Filed: July 9, 2019


                                                       OPINION

           R. H.1 (“Appellant”) appeals from the judgment of the trial court granting in part and

denying in part his Petition for Expungement. Appellant asserts three points on appeal, arguing:

(1) the trial court erred in concluding expungement of his second-degree burglary conviction was

excluded under Section 610.140.22 because second-degree burglary is not one of the ineligible

offenses listed in the statute; (2) the trial court erred in concluding expungement of his second-


1
  We refer to this party by initials to protect the identity of the party. “It would defeat the spirit of the expungement
statute to refer to a party by name in a public opinion which includes details of the offenses contained within the
record, such that any order of expungement would be defeated by the public record made in the published opinion
from the appeal.” See R.G. v. Mo. State Highway Patrol, No. WD82176, 2019 WL 2256855, at *1 n.1 (Mo. App.
W.D. May 28, 2019). “To do otherwise would encourage a party which opposed the expungement to appeal the
decision in order to create a readily available public record of the now expunged offenses and would discourage a
party seeking expungement from appealing the denial of that request due to the readily available public record
created by the appeal.” Id.
2
    All statutory references are to RSMo (2016).
degree burglary conviction was excluded under Section 610.140.5 because the court applied the

incorrect discharge date for the offense; and (3) the trial court erred in expunging his marijuana

and trespassing arrests under Section 610.140.2 instead of closing or sealing the records pursuant

to Sections 610.120, 610.105, and 557.011.2(3), as Appellant requested.

        Respondents include the Missouri State Highway Patrol Criminal Records Repository

(the “State”) and the St. Louis City Police Department (the “City”) (collectively

“Respondents”).3 The State agrees with Appellant’s first two arguments and concedes the trial

court erred in failing to expunge Appellant’s second-degree burglary conviction. The City also

agrees with Appellant’s first argument and concedes the trial court erred in finding second-

degree burglary is an excluded offense under Section 610.140.2. However, the City disagrees

with Appellant’s second argument and argues the judgment should nonetheless be affirmed

because the second-degree burglary conviction was not eligible for expungement under Section

610.140.5.

        We reverse the judgment and remand the case to the trial court for further proceedings.

                                    Factual and Procedural Background

        On October 2, 1968, Appellant was arrested for first-degree assault, but there is no record

he was formally charged for this offense (“first-degree assault arrest”). On July 31, 1970,

Appellant was arrested and charged with second-degree burglary. On October 19, 1970, the court

found Appellant guilty of this charge, sentenced Appellant to two years in prison, suspended

execution of the sentence, and placed Appellant on two years of probation (“second-degree

burglary conviction”). Appellant’s probation was extended and was successfully completed on




3
  Appellant named numerous other Respondents in his Petition, however only the State and the City filed a
responsive brief in this appeal.

                                                        2
December 18, 1973. Sometime in 1972, while Appellant was on probation for his second-degree

burglary conviction, he was arrested and charged with a felony drug offense (“felony drug

charge”). On January 19, 1973, the court found Appellant guilty of this offense and sentenced

him to three years of probation, which Appellant successfully completed on May 2, 1975.4 On

February 21, 1975, Appellant was arrested for a marijuana offense, but there is no record he was

formally charged for this offense (“marijuana arrest”). On July 7, 2004, Appellant was arrested

for misdemeanor trespassing, but there is no record he was formally charged for this offense

(“trespassing arrest”).

         On April 15, 2018, Appellant filed a Petition for Expungement (“Petition”) pursuant to

Section 610.140, requesting the expungement of records relating to four offenses: the first-degree

assault arrest; the second-degree burglary conviction; the marijuana arrest; and the trespassing

arrest. In the Petition, Appellant made sworn statements indicating compliance with each of the

six statutory criteria for expungement under Section 610.140.2, including that he “ha[s] not been

found guilty of any other misdemeanor or felony, not including violations of the traffic

regulations provided under chapters 304 and 307, RSMo, during the time period specified for the

underlying offense, violation, or infraction in section 610.140.5.1, RSMo[.]”

         On May 30, 2018, the State filed its Answer,5 asserting that it did not have any records

regarding the marijuana or trespassing arrests and opposing expungement of the first-degree

assault arrest and second-degree burglary conviction. The State argued first-degree assault is not



4
  The record is unclear whether the court imposed a sentence and suspended its execution or suspended imposition
of a sentence. Appellant asserts the court suspended the imposition of his sentence and placed him on three years of
probation, which he successfully completed on May 2, 1975. The State asserts Appellant’s records reflect he was
sentenced to three years in prison. However, the record does not contain the relevant records or any other evidence
regarding Appellant’s sentence or the actual disposition of this case.
5
  The City did not file a separate Answer and joined in the State’s Answer, as well as each of the State’s other
filings.

                                                          3
an eligible offense under Section 610.140.2, and Appellant did not meet the statutory

requirements for expungement of the second-degree burglary conviction under Section 610.140.5

because “[Appellant] was charged with and found guilty of a felony within [seven] years from

the date he completed the authorized disposition for the burglary offense.” The State asserted

Appellant was found guilty of the felony drug charge on January 19, 1973 and that this date

appeared to fall within the seven-year period after Appellant completed his two-year probation

sentence for second-degree burglary, which began on October 19, 1970.

         On July 8, 2018, Appellant filed his Reply to the State’s Answer, in which he requested

an oral hearing on the record. Appellant argued the second-degree burglary charge was

expungeable because it was not one of the ineligible offenses listed in Section 610.140.2, and

Appellant was not convicted of any felony or misdemeanor during the relevant statutory period

set forth under Section 610.140.5.6 Appellant asserted he was never convicted on the felony drug

charge because the court suspended imposition of sentence and placed him on three years of

probation, which he successfully completed on May 2, 1975. Appellant also conceded his first-

degree assault arrest was not eligible for expungement, and requested that the records be closed

or sealed pursuant to Sections 610.105 and 557.011.2(3). Finally, Appellant clarified that he was

not requesting expungement of the marijuana and trespassing charges, but rather that these

records be “automatically closed” pursuant to Sections 610.105 and 557.011.2(3) “due to the fact

that they were never processed either as nolle prosequi cases [sic], acquittals, refusals or

dismissals.”




6
 Appellant stated the statutory period was twenty years, apparently citing an older version of the statute prior to the
2016 amendment which shortened the statutory period from twenty years to seven years. See Section 610.140.5
RSMo (Cum. Supp. 2013).

                                                           4
       On July 10, 2018, the court held a hearing. Appellant was present and again requested the

hearing be conducted on the record. However, no court reporter was present and no record was

made of the proceedings. On July 11, 2018, Appellant filed an Addendum and Amended

Petition, in which he reasserted the arguments in his Reply and expressed that the second-degree

burglary charge was Appellant’s “most important expungement request.” Appellant also asserted

that the State’s Answer included the “wrong date of conviction for the felony burglary in the

second degree [conviction].”

       On July 24, 2018, the State filed its Response to Appellant’s Addendum and Amended

Petition, in which it withdrew its opposition to expungement of the second-degree burglary

conviction. The State explained that it found original court records for this conviction showing

Appellant successfully completed his probation and was discharged by the court on December

18, 1973. Based on this “new information contained in the original records,” the State conceded

the second-degree burglary offense was expungeable under Section 610.140.5 because

Appellant’s felony drug conviction “occurred prior to, and thus outside of, the time frame [sic]

specified in Section 610.140.5(1) and (2).”

       On October 19, 2018, the trial court entered an Order and Judgment granting Appellant’s

Petition in part, and denying it in part. The court granted Appellant’s request to expunge his

marijuana and trespassing arrests, finding Appellant met all statutory criteria for expungement of

the these offenses. The court denied Appellant’s request to expunge the first-degree assault arrest

and second-degree burglary conviction, finding “Sections 610.140.2 and 610.140.5 RSMo




                                                 5
exclude the assault charge, burglary conviction, and felony drug conviction7 in [Appellant]’s

expungement requests.” This appeal follows.

                                              Points on Appeal

        Appellant asserts three points on appeal. In Point I, Appellant argues the trial court erred

in finding his second-degree burglary conviction was not eligible for expungement under Section

610.140.2 because the statute does not list second-degree burglary as an offense ineligible for

expungement. In Point II, Appellant argues the trial court erred in finding his second-degree

burglary conviction was not eligible for expungement under Section 610.140.5 because the court

“failed to apply the proper authorized discharge date for Appellant’s underlying offense of

second-degree burglary. . . and Appellant has not been convicted of a felony or misdemeanor

after his underlying discharge date of December 18, 1973.” In Point III, Appellant argues the

trial court erred in granting his expungement requests for the marijuana and trespassing arrests

“because in doing so it invoked the issue presented in §610.140(12) concerning the lifetime

expungement limits Appellant is entitled [sic] . . . [and the court] appears to have ignored

Appellant’s request to ‘close or seal’ his criminal records for the [marijuana], trespassing, and

assault offenses.”

                                             Standard of Review

        As this was a court-tried case, appellate review is governed by Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. banc 1976). B.K. v. Mo. State Highway Patrol, 561 S.W.3d 876, 879 (Mo.

App. W.D. 2018). We will affirm the trial court’s decision unless there is no substantial evidence

to support it, it is against the weight of the evidence, it erroneously declares the law, or it




7
 Although the court found Appellant’s felony drug conviction was not expungeable, Appellant had not included this
offense in his Petition and never requested this offense be expunged.

                                                       6
erroneously applies the law. Id. We must view the evidence and all reasonable inferences

therefrom in the light most favorable to the judgment, disregarding all contrary evidence and

inferences. Id. The trial court’s application of statutory requirements is a question of law, which

we review de novo. Doe v. St. Louis Cty. Police Dep’t, 505 S.W.3d 450, 453 (Mo. App. E.D

2016).

I.       The Trial Court Erred in Concluding Section 610.140.2 Excludes Expungement of
         Appellant’s Second-Degree Burglary Conviction (Point I)

         In Point I, Appellant argues the trial court erred in concluding the second-degree burglary

conviction is not eligible for expungement under Section 610.140.2, and we agree. Section

610.140.2 sets forth a list of ten categories of offenses, violations, and infractions that are “not

eligible for expungement under this section[.]” See Perkins v. Bridgeton Police Dep't, 549

S.W.3d 504, 506-07 (Mo. App. E.D. 2018) (Section 610.140.2 lists offenses “for which

expungement shall not be available”). The language in Section 610.140.2 is clear and

unambiguous, therefore we must give words and phrases in the statute their plain and ordinary

meanings. St. Louis Cty. Police Dep’t, 505 S.W.3d at 454. Respondents correctly concede that

second-degree burglary does not fall within any of the listed categories of ineligible offenses

under the plain meaning of the statute. Accordingly, we find the trial court erred in concluding

the offense was ineligible for expungement under Section 610.140.2. Point I is granted.

II.      The Trial Court Erred in Finding Section 610.140.5 Excludes Expungement of
         Appellant’s Second-Degree Burglary Conviction (Point II)

         In Point II, Appellant argues the trial court erred in finding his second-degree burglary

conviction is not eligible for expungement under Section 610.140.5, and we agree.

         In order to be entitled to expungement of the second-degree burglary conviction,

Appellant was required to satisfy the six statutory criteria for expungement set forth in Section

610.140.5:

                                                   7
       (1) It has been at least seven years if the offense is a felony, or at least three years
       if the offense is a misdemeanor, municipal offense, or infraction, from the date the
       petitioner completed any authorized disposition imposed under section 557.011 for
       each offense, violation, or infraction listed in the petition;
       (2) The person has not been found guilty of any other misdemeanor or felony, not
       including violations of the traffic regulations provided under chapters 304 and 307,
       during the time period specified for the underlying offense, violation, or infraction
       in subdivision (1) of this subsection;
       (3) The person has satisfied all obligations relating to any such disposition,
       including the payment of any fines or restitution;
       (4) The person does not have charges pending;
       (5) The petitioner's habits and conduct demonstrate that the petitioner is not a threat
       to the public safety of the state; and
       (6) The expungement is consistent with the public welfare and the interests of
       justice warrant the expungement.

Section 610.140.2(1)–(6).

       Here, Appellant’s Petition contained sworn statements asserting he satisfied each of the

six statutory criteria contained in Section 610.140.5(1)–(6), and there is no dispute that Appellant

satisfied criteria (1) and (3) through (6). The only question is whether Appellant satisfied Section

610.140.5(2) by establishing that he was not found guilty of any misdemeanor or felony during

the seven-year period following the completion of his two-year probation sentence for second-

degree burglary. See W.C.H. v. State, 546 S.W.3d 612, 615 (Mo. App. E.D. 2018) (the time

period specified in Section 610.140.5 begins on the date the “[petitioner] completed any sentence

of imprisonment or any period of probation or parole, not the date of the petitioner's conviction

for the offense he or she is seeking to expunge”). Regarding criterion (2), Appellant attested, “I

have not been found guilty of any other misdemeanor or felony, not including violations of the

traffic regulations provided under chapters 304 and 307, RSMo, during the time period specified

for the underlying offense, violation, or infraction in section 610.140.5.1[.]”

       Initially, the State argued Appellant failed to satisfy Section 610.140.5(2) because

“[Appellant] was found guilty of a felony within seven years of the authorized disposition for the

burglary offense.” In support of this argument, the State asserted Appellant was convicted of a
                                                  8
felony drug charge on January 19, 1973, and that this date appeared to fall within the seven-year

period after Appellant completed his two-year probation sentence for second-degree burglary,

which began on October 19, 1970. Therefore, the State argued, Appellant failed to satisfy the

requirement in Section 610.140.5(2) that he have no misdemeanor or felony convictions during

the seven-year period following the authorized disposition of the underlying offense.

       Following the hearing, however, the State located the original court records showing

Appellant’s probation had been extended and was successfully completed on December 18,

1973. The State filed a Response to Appellant’s amended petition withdrawing its opposition to

the expungement of the second-degree burglary conviction. The State attached a copy of the

court records to its Response and conceded the records demonstrated Appellant satisfied Section

610.140.5(2) because the felony drug conviction occurred before the probationary period was

completed.

       We find the only evidence in the record before us regarding compliance with Section

610.140.5(2) establishes that Appellant was not found guilty of any other misdemeanor or felony

during the seven-year period after the completion of his probation for the second-degree burglary

conviction. The seven-year period in Section 610.140.5(2) started with the completion of any

authorized disposition of the offense, not the date of Appellant’s conviction. Section

610.140.5(2); See W.C.H., 546 S.W.3d at 615. While there was evidence Appellant was placed

on two years’ probation on October 19, 1970, there was no evidence contradicting Appellant’s

sworn statement that he was not found guilty of any other misdemeanor or felony in the seven

years after he completed his probation. As the State conceded, Appellant was discharged from

probation on December 19, 1973. Therefore, the felony drug plea on January 19, 1973 occurred

outside of the time period specified in Section 610.140.5(2). Accordingly, Appellant carried his



                                                 9
burden of establishing compliance with Section 610.140.5(2), and the trial court’s judgment that

he did not satisfy this criterion was against the weight of the evidence.

       The City now argues we should disregard the court records showing the date Appellant

was discharged from probation when addressing the weight of the evidence because the records

were not presented to the trial court during the hearing. We disagree. The court records at issue

were filed by the State immediately after the hearing and several months prior to the court’s

judgment. Notably, the City joined in all the State’s filings, including the State’s Response, and

did not object to the court records being submitted after the hearing or file a separate response.

The trial court had authority to take judicial notice of its own records, which it appears to have

considered based on facts cited in the judgment. See Underwood v. Kahala, LLC, 554 S.W.3d

485, 496 (Mo. App. S.D. 2018). The City does not contest either the accuracy of the court

records or the fact that they demonstrate Appellant’s compliance with the requirement in Section

610.140.5(2).

       For the foregoing reasons, we find the trial court erred in concluding Section 610.140.5

excluded expungement of Appellant’s second-degree burglary conviction because the evidence

in the record demonstrated Appellant satisfied all the statutory criteria in Section 610.140.5,

including that he was not convicted of a felony or misdemeanor during the seven-year period

after he successfully completed his probation for that offense. Point II is granted.

III.   We Need not Address Whether the Trial Court Erred in Expunging Appellant’s
       Marijuana and Trespassing Arrests (Point III)

       In Point III, Appellant argues the trial court erred in granting his petition to expunge the

marijuana and trespassing arrests because the court ignored Appellant’s request in his amended

petition that the records related to these offenses be closed or sealed pursuant to Sections

610.105 and 557.011.2(3). We need not address this argument because our holdings in Points I


                                                 10
and II are dispositive as we are remanding this case back to the trial court. See Edwards v. City of

Ellisville, 426 S.W.3d 644, 650 (Mo. App. E.D. 2013) (a claim of error may be rendered moot by

an appellate disposition remanding the case to the trial court). Upon remand, the trial court may

consider whether the second-degree burglary conviction and the marijuana and trespassing

arrests are all expungeable, in light of the lifetime expungement limits contained in Section

610.140(12). Appellant will also have an opportunity to raise his argument to the trial court at

that time. See Hayes v. State, 755 S.W.2d 425, 430 (Mo. App. S.D. 1988) (upon remand,

appellant will have an opportunity to consider whether an amendment to the petition is

necessary). Accordingly, Point III is denied as moot.

                                            Conclusion

       The judgment of the trial court is reversed, and the case is remanded to the trial court for

further proceedings not inconsistent with this Opinion.




                                              __________________________________________
                                              Angela T. Quigless, J.


Roy L. Richter, P.J., and
Robert M. Clayton III, J., concur.




                                                11
