                                                                                 MODIFIED
                                                                                 June 25, 2019




                                                     In the
                               Missouri Court of Appeals
                                           Western District
 R.G.,                                                     )
                                                           )
                    Respondent,                            )   WD82176
                                                           )
 v.                                                        )   OPINION FILED: May 28, 2019
                                                           )
 MISSOURI STATE HIGHWAY                                    )
 PATROL,                                                   )
                                                           )
                     Appellant.                            )

                   Appeal from the Circuit Court of Cole County, Missouri
                            The Honorable Patricia S. Joyce, Judge

 Before Division One: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge
                              and Gary D. Witt, Judge


         The Missouri State Highway Patrol ("MSHP") appeals from the circuit court's

judgment granting R.G.'s1 petition for expungement for his 2010 conviction for peace


         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. 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.
disturbance. The MSHP argues that the circuit court erred in granting R.G.'s petition for

expungement for his 2010 conviction because he did not meet the necessary requirements

under section 610.140.5(1)-(2)2. We affirm.

                                            Statement of Facts

      On May 10, 2018, R.G. filed a petition in the Circuit Court of Cole County seeking

the expungement of two convictions in 2010 and 2012, both for the crime of peace

disturbance. On June 6, 2018, the MSHP filed an Answer and Motion to Dismiss.

      A hearing was held on July 16, 2018. At the hearing, R.G. testified that on

October 15, 2010 he pled guilty to the crime of peace disturbance, and was sentenced to

pay a $500.00 fine, which he paid that day. R.G. also testified that he pled guilty to the

crime of peace disturbance on October 22, 2012.

      The circuit court entered its judgment granting R.G.'s petition on August 30, 2018.

The circuit court found that R.G. plead guilty to an amended charge of peace disturbance

on October 15, 2010 and the court imposed a fine of $500.00 which was paid that day. The

circuit court found that R.G. plead guilty to an amended charge of peace disturbance on

October 22, 2012. The court suspended the imposition of R.G.'s sentence and placed him

on two years of probation which he successfully completed. The certified records of each

case were admitted into evidence without objection.

      The circuit court found that following the sentencing on October 22, 2012, R.G. has

had no other findings of guilt on any misdemeanor or felony charges and had no criminal



      2
          All statutory references are to RSMo 2016, as currently updated.

                                                        2
charges pending at the time of the hearing in this case. The circuit court found that it had

been more than three years since R.G. had completed his sentence for the 2010 conviction

and his probation for his 2012 conviction. The circuit court found that the expungement

of R.G.'s arrest and conviction in both cases is consistent with the public welfare and is

warranted by the interests of justice.

       This timely appeal followed. The MSHP is solely appealing the expungement of

the 2010 conviction.

                                    Standard of Review

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

S.W.2d 30, 32 (Mo. banc 1976). "Accordingly, we will affirm the trail court's judgment

unless there is no substantial evidence to support it, it is against the weight of the evidence,

it erroneously declares the law, or it erroneously applies the law." W.C.H. v. State, 546

S.W.3d 612, 614 (Mo. App. E.D. 2018). "The trial court's application of statutory

requirements is a question of law rather than fact; therefore, we review the trial court's

application of statutory requirements de novo." Doe v. St. Louis Cty. Police Dep't, 505

S.W.3d 450, 453 (Mo. App. E.D. 2016).

                                           Analysis

       The MSHP raises one point on appeal. In its sole point MSHP argues that the circuit

court erred in expunging R.G.'s 2010 conviction because section 610.140.5 provides that a

necessary requirement for expungement of a misdemeanor is that R.G. has not been found

guilty of any other disqualifying misdemeanor or felony for at least three years from the

date he completed any authorized disposition and R.G. pled guilty to a subsequent

                                               3
misdemeanor less than three years after completing the disposition of his 2010 conviction.

The MSHP argues that the time frame the circuit court should consider is the three years

following the completion of the sentence for each conviction, rather than focus on the three

years immediately prior to the filing of the petition for expungement.

       The facts in this case are undisputed. The sole issue before this Court is a matter of

statutory interpretation. "The primary rule of statutory interpretation is to effectuate the

General Assembly's intent." W.C.H., 546 S.W.3d at 614 (citing Bateman v. Rinehart, 391

S.W.3d 441, 446 (Mo. banc 2013)). "If the words are clear, the [c]ourt must apply the plain

meaning of the law" and refrain from using canons of statutory construction. State v.

Bazell, 497 S.W.3d 263, 266 (Mo. banc 2016) (superseded by statute). "If the statute is

ambiguous, we attempt to construe it in a manner consistent with the legislative intent,

giving meaning to the words used within the broad context of the legislature's purpose in

enacting the law." Connor v. Monkem, 898 S.W.2d 89, 90 (Mo. banc 1995) (quoting

Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993).

       The relevant portion of section 610.140.5 reads:

       If the prosecuting attorney, circuit attorney, or municipal prosecuting
       attorney objects to the petition for expungement, he or she shall do so in
       writing within thirty days after receipt of service. Unless otherwise agreed
       upon by the parties, the court shall hold a hearing within sixty days after any
       written objection is filed, giving reasonable notice of the hearing to the
       petitioner. If no objection has been filed within thirty days after receipt of
       service, the court may set a hearing on the matter and shall give reasonable
       notice of the hearing to each entity named in the petition. At any hearing,
       the court may accept evidence and hear testimony on, and may consider, the
       following criteria for each of the offenses, violations, or infractions listed in
       the petition for expungement:



                                              4
       (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.

Section 610.140.5.

       In the circuit court's findings, it implicitly explains how it applied section 610.140.5

by finding that it had been more than three years since R.G. had completed his sentence

and/or probation in each of the underlying convictions, and since completing his sentence

for the latter offense, his 2012 conviction, R.G. had no other findings of guilt on any

misdemeanor or felony charge for more than three years. The circuit court properly

interpreted and applied the statutory provisions in questions. Looking only at the relevant

language in the statute, a petitioner meets the criteria in subsections 610.140.5(1) & (2) if

"It has been at least…three years if the offense is a misdemeanor… from the date the

petitioner completed any authorized disposition imposed under section 557.011 [and] [t]he

person has not been found guilty of any other misdemeanor or felony…during the [three

year] time period[.]" Section 610.140.5. While it is not clear from the language in the

statute when the time period was to begin, the only interpretation that would be consistent

with the legislative intent would be for the time period to begin at the time the petition was




                                               5
filed and extend backwards for three years for the expungement of this misdemeanor

offense.3

         The purpose of expungement is to provide a second chance to persons who have had

prior criminal offenses but have shown by their more recent conduct that they have

rehabilitated themselves and deserve the second chance provided for in the statute. If the

petitioner can establish that their "habits and conduct demonstrate that the petitioner is not

a threat to the public safety of the state", and that "[t]he expungement is consistent with the

public welfare and the interests of justice warrant the expungement."                                          Section

610.140.5(5)-(6). Further, Section 610.140.1 specifically allows expungement of multiple

offenses charged in the same indictment or information. There would be no rational

explanation for the legislature to determine that expungement is appropriate in one case

where a petitioner had multiple offenses charged in the same indictment and more than

three years later had additional misdemeanor offenses but seek to deny expungement to an

identical petitioner solely because it was less than three years between the first set of

charges and the latter charge. The legislature was focused on the time immediately prior

to the filing of the petition for expungement because that is the period of time that would


          3
            We acknowledge the holding in W.C.H. v. State, 546 S.W.3d 612 (Mo. App. E.D. 2018) which was
construing the 2012 version of section 610.140. In W.C.H., Petitioner was convicted of misdemeanor driving while
intoxicated less than a year after a felony conviction of passing a bad check, and Petitioner sought to have his
conviction of passing a bad check expunged. Id. at 613. The State argued that the trial court erred in granting
Petitioner's request for expungement because he was convicted of driving while intoxicated while he was still on
probation for his conviction of passing a bad check. Id. at 614. The court in W.H.C. held that the time period
specified in section 610.140.5 was to begin not from the time of conviction but the time in which Petitioner finished
his sentence or probation. Id. at 615. W.H.C. was decided in March of 2018. Immediately following that opinion,
the Legislature amended 610.140.5(1) (effective August 28, 2018) to clarify that the relevant time frame begins "At
the time the petition is filed,...". L. 2018, S.B. No. 793. Further supporting our conclusion that the legislative intent
is to look backward from the point in time the petition was filed in determining if the petitioner meets the criteria for
expungement. The S.B.793 amendments to section 610.140.5(1) were effective at the time the trial court entered its
judgment on August 30, 2018.

                                                           6
determine if the petitioner had changed their behavior so as to meet the statutory

qualifications for expungement and deserve the second chance provided by the statute.

       Thus, "the time period specified for the underlying offense in subdivision (1) of

[section 610.140.5]," as applied to R.G.'s case, would be between May 5, 2018, the day

R.G.'s filed his petition for expungement, and May 5, 2015, three years prior to the filing

of his petition for expungement. There was no other finding of guilt on any misdemeanor

or felony charge during that relevant time period.

       The trial court did not err in granting R.G.'s petition for expungement. Point One is

denied.

                                       Conclusion

       The circuit court's judgment is affirmed.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                             7
