               This opinion is subject to revision before final
                      publication in the Pacific Reporter

                               2020 UT 42


                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

                            STATE OF UTAH,
                               Appellee,
                                     v.
                         CHAD JAMES MALO,
                            Appellant.

                            No. 20180970
                         Heard May 19, 2020
                          Filed July 6, 2020

        On Certification from the Utah Court of Appeals

                  Seventh District, Monticello
                The Honorable Don M. Torgerson
                        No. 151700061

                               Attorneys:
   Sean D. Reyes, Att’y Gen., Nathan H. Jack, Asst. Solic. Gen.,
    Salt Lake City, Kendall G. Laws, Monticello, for appellee
            Vincent T. Stevens, Ogden, for appellant


  JUSTICE HIMONAS authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE PEARCE, and JUSTICE PETERSEN joined.

   JUSTICE HIMONAS, opinion of the Court:
                         INTRODUCTION
   ¶1 Gone are the days when courts poeticized the
expungement of criminal records as “unpardonable sin[s]” that
“should fly on the wings of a rare bird.” State v. Chambers, 533
P.2d 876, 879 (Utah 1975) (Henriod, C.J., dissenting). Today’s
decisions offer a real world take, often describing the “obvious
                          STATE v. MALO
                       Opinion of the Court
practical    humanitarian     objectives”     of     expungement.
Commonwealth v. Giulian, 141 A.3d 1262, 1270 (Pa. 2016). It is
against the backdrop of this shift in norms that appellant, Chad
Malo, asks us to reverse the district court’s decision denying his
expungement petition.
    ¶2 Clinically put, this case presents the following question:
Did the district court abuse its discretion in determining that Malo
failed to prove by clear and convincing evidence that expunging
his criminal record in this matter was in the public interest? Per
Malo, the district court erred in four regards: (1) relying on the
order binding him over to face trial, (2) relying on expunged
cases, (3) considering the objection of the State, and (4) giving
insufficient weight to Malo’s presumption of innocence.
    ¶3 Because we can make out no error in either how the
district court handled this matter or its decision, much less
reversible error, we affirm.
                        BACKGROUND
   ¶4 This case doesn’t turn on the facts. We recite only those
particulars needed for context.
    ¶5 The State charged Malo with one count of unlawful
sexual conduct with a 16- or 17-year-old, a third-degree felony. See
UTAH CODE § 76-5-401.2. The felony charge was based on the
allegations that (1) Malo had sex with Britany and (2) at the time
he was in his early forties and she was just seventeen.1
   ¶6 The matter proceeded to a preliminary hearing. At the
hearing, Britany testified that days after turning seventeen she
went on a houseboat trip to Lake Powell with her family and
others, including Malo. She further testified that during the trip
Malo unsuccessfully tried to “go up [her] shirt and down [her]
pants” and that, at a point later in the trip, “he pushed [her] up
against [a] wall” on the houseboat and “proceeded to pull down
[her] pants and have sex with [her].”
    ¶7 The district court issued a written decision binding Malo
over as charged. Malo is spot on when he says that the district
court commented in its decision that Britany’s account contained
some “inconsistencies [that] undermine her credibility.” But he’s
off in suggesting that the court threw shade at Britany or the

__________________________________________________________
   1Britany is a fictional name that we adopt to protect the
minor’s privacy.

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State’s case in its ruling; indeed, the court went out of its way to
remark on Britany’s resolve: “[T]he fact that she steadfastly
refused to crumble under skeptical, even critical, questioning
from her father and her sister, over a period of several hours,
supports her credibility.”
    ¶8 The case was set for trial. Shortly before trial, however,
Britany was “experiencing serious medical complications making
her availability for the [] jury trial impossible,” causing the State
to file a Motion to Dismiss Without Prejudice. Malo neither
opposed the State’s motion nor asked that the dismissal be with
prejudice. The district court granted the motion and dismissed the
matter without prejudice, leaving open the possibility that the
State could refile the charge against Malo at a later date.
    ¶9 Seven months later, Malo filed his expungement petition.
The State conceded in response that there was “not a high
likelihood” that it would refile criminal charges. Still, it objected,
arguing that expunging Malo’s arrest record “would be contrary
to [the] public interest.”
    ¶10 In support of its objection, the State brought to the district
court’s attention two other cases in which Malo had faced
criminal charges for inappropriate sexual contact with minors.
One was in Kane County, where Malo had been charged with six
counts of aggravated sexual abuse of a child. He was acquitted on
all charges. The other was in Davis County, where he was charged
with two counts of sexual abuse of a child, which was dismissed.
The Kane County and Davis County cases involved the same two
children. Malo had moved for but not yet been granted an
expungement in either case when the State lodged its objection.2
   ¶11 An expungement hearing followed. At no time, either at
the hearing or in his written response to the State’s objection, did
Malo object to the State introducing and relying on the Kane and
Davis County charges to contest his petition.3 Indeed, instead of
objecting to the State’s use of these matters and seeking to shield
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   2  In connection with the State’s opposition, the district court
also received letters from Britany and her father. Because the
letters are designated as “private,” we do not disclose their
contents which both parties have been privy to.
   3  By the time of the hearing, Malo knew that the Kane and
Davis County matters had been expunged and informed the
district court of that fact.

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                          STATE v. MALO
                       Opinion of the Court
them from the district court’s consideration, Malo sought to
utilize these expungements as a sword, arguing at the hearing that
he “has never been found guilty of anything, much less this
crime” and that the judges in the Kane and Davis County matters
“found it appropriate” to expunge them. Apparently, Malo felt
this construct worked well with one of his two arguments at the
hearing, namely his presumption of innocence. Malo’s other
argument at the hearing, generously read, was that because the
State had made clear that it was unlikely to refile charges against
Malo with respect to Britany’s allegations, it was unable to
maintain its objection to the expungement petition.
    ¶12 Following the expungement hearing, the district court
issued a written decision denying Malo’s petition on the basis that
Malo had failed to establish by clear and convincing evidence that
his expungement would not be contrary to the public interests.
The court offered three reasons in support of its conclusion, two
of which are in play here: (1) the trial court’s probable cause
determination at the preliminary hearing following Malo’s arrest;
and (2) the Kane and Davis County prosecutions charging Malo
with sexual misconduct.
   ¶13 Malo timely filed a Notice of Appeal. The matter was
originally docketed in the Court of Appeals; however, shortly
before oral argument, the Court of Appeals certified the case to us
pursuant to Utah Code section 78A-4-103(3) and Rule 43 of the
Utah Rules of Appellate Procedure. We exercise jurisdiction under
Utah Code section 78A-3-102(3)(b).
                      STANDARD OF REVIEW
    ¶14 While not bottomless, it is obvious to us that district
courts possess deep discretion in deciding whether a petitioner
has clearly and convincingly made the case for expungement. The
floor is whether the court abused its discretion. See State v.
Chambers, 533 P.2d 876, 879 (Utah 1975) (“[W]e cannot support the
State’s claim [that expungement was not in the public interest] . . .
because of the discretionary function of the trial court, and
because the trial court’s performance has not been shown to have
exceeded its discretionary boundaries.”). However, we assess the
subordinate issues that underly a district court’s expungement
decision differently. We review the district court’s underlying
factual findings for clear error. See Arnold v. Grigsby, 2018 UT 14,
¶ 9, 417 P.3d 606. And we review its legal determinations for
correctness, deferring to none. Id.



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                              ANALYSIS
    ¶15 To succeed before the district court on his expungement
petition, Malo had to prove by clear and convincing evidence that:
(1) his “petition and . . . certificate of eligibility [were] sufficient;”
(2) all “statutory requirements ha[d] been met;” (3) the
prosecution had neither refiled charges nor intended to refile
charges; and (4) the expungement was “not contrary to the
interests of the public.” UTAH CODE § 77-40-107(8)(2018).4 The
prosecution spotted him the first three elements, leaving only the
question of whether he could establish that the expungement of
his criminal record in this matter was not contrary to the public
interest. The district court determined that Malo failed to meet his
burden on the public interest prong based primarily on the
probable cause determination at Malo’s preliminary hearing and
the charges in the Kane and Davis County matters.
    ¶16 Malo asks us to reverse the district court for four reasons.
First, the district court improperly relied on the order binding him
over to face trial. Second, the court improperly relied on the
expunged cases. Third, the court should not have considered the
State’s objection. And fourth, the court gave insufficient weight to
the presumption that Malo is innocent of the alleged conduct.
Malo is wrong as a matter of law with respect to the first and third
arguments. He failed to preserve the second argument for appeal.
And as to the fourth, he has failed to carry his burden of
establishing that the district court abused its discretion.
Accordingly, we affirm the district court’s decision denying
Malo’s petition to expunge from his criminal record his arrest on
the charge at issue—unlawful sexual conduct with a 16- or 17-
year-old.
   ¶17 Malo leads off with the argument that the district court
erred in taking into consideration the decision to bind him over

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   4  Because Malo filed his expungement petition on June 21,
2018, and the district court denied the petition on October 30,
2018, the parties refer to the relevant provisions of the Utah
Expungement Act, Utah Code section 77-40-101, et seq., (the
Expungement Act), in place during that time. We follow suit. We
note that the legislature amended the statute several times in 2019
and 2020 to include a possibility for automatic expungement in
several types of cases, and to allow for other exceptions, all
irrelevant to Malo’s case.

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                           STATE v. MALO
                       Opinion of the Court
for trial. In other words, Malo contends that it is inappropriate per
se for a district court adjudicating an expungement petition to rely
on an order binding a matter over for trial: “Because such a low
threshold is placed on the [p]reliminary [h]earing . . . , it was
improper for the court to rely on the fact that the matter was
bound over for trial in denying Mr. Malo’s expungement.”
     ¶18 We assume that by “low threshold” Malo means our
well-established evidentiary and probable cause standards for
preliminary hearings. If so, it is true that at a preliminary hearing
a magistrate is duty-bound to bind over a defendant if, in
“draw[ing] all reasonable inferences in the prosecution’s favor,”
State v. Schmidt, 2015 UT 65, ¶ 18, 356 P.3d 1204 (citation omitted),
she finds “sufficient evidence to support a reasonable belief that
an offense has been committed and that the defendant committed
it,” id. ¶ 20 (citation omitted) (internal quotation marks omitted),
i.e., probable cause, Id. (citations omitted) (internal quotation
marks omitted). It is also true that a magistrate is limited when it
comes to making credibility determinations in the course of a
preliminary hearing. See State v. Virgin, 2006 UT 29, ¶¶ 17–25, 137
P.3d 787, holding modified on other grounds in State v. Levin, 2006 UT
50, ¶ 31, 144 P.3d 1096.
    ¶19 Yet, nothing about or even within earshot of these
standards tells us that a district court judge, in ruling on an
expungement petition, cannot or should not take into account the
reality that a defendant was bound over—or not—for trial.
Likewise, nothing tells us that a district court cannot or should not
consider the evidence put forth at the preliminary hearing.5 Malo
certainly hasn’t referred us to any legal authorities. On this score,
his briefs are legally blank: no citation to the United States
Constitution, the Utah Constitution, federal or state statutes or
rules, case law, legal treatises, or law review articles. And in the
absence of any such authorities, we are unwilling to bind the
hands of a district court judge charged with determining whether
an expungement is in the public interest. Therefore, we decline to
credit Malo’s first argument. The district court had the authority
to consider—and acted well within its discretion in taking into
account—the decision to bind over Malo, as well as any evidence
adduced at his preliminary hearing.

__________________________________________________________
   5We also take care to note that it is certainly possible that in an
expungement case to come, it is the defendant asking the district
court to grasp and rely on such evidence.

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                        Opinion of the Court

    ¶20 Malo’s next argument—that the district court improperly
relied on the expunged cases—fares even worse. Malo never
objected, either orally or in writing, to the district court
considering the expunged cases. If anything, he sought to make
use of the fact that the judges overseeing the Kane and Davis
County matters had seen fit to expunge those charges. See supra
¶ 11.6 And “[w]hen a party fails to raise and argue an issue in the
trial court, it has failed to preserve the issue, and . . . [we] will not
typically reach that issue absent a valid exception to
preservation,” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443,7
which Malo has not argued for.8

__________________________________________________________
   6 Malo is careful to avoid claiming he preserved the argument;
rather, he asserts, accurately, that “[t]he Court was advised that
the prior cases had been expunged.”
   7  We are well within our prerogative to raise a preservation
issue on our own initiative when it provides an alternative basis
for affirmance, even if the State failed to brief the preservation
argument. See, e.g., Limb v. Federated Milk Producers Ass’n, 461 P.2d
290, 293 n.2 (Utah 1969) (“The appellate court will affirm the
judgment, order, or decree appealed from if it is sustainable on
any legal ground or theory apparent on the record, even though
such ground or theory differs from that stated by the trial court to
be the basis of its ruling or action, and this is true even though
such ground or theory is not urged or argued on appeal by
appellee, was not raised in the lower court, and was not
considered or passed on by the lower court.”); see also Taylorsville
v. Mitchell, 2020 UT 26, ¶ 13, --- P.3d --- (noting that a similar
posture “leaves us with substantial discretion as to how to
proceed.”). But while it is within our “wide discretion” to
“decide[] whether to entertain . . . matters that are first raised on
appeal,” Patterson v. Patterson, 2011 UT 68, ¶ 13, 266 P.3d 828, we
do note that the State’s failure to make the argument is not an
advisable practice, and its effect was that Malo could not address
the argument in his reply. In another case, such failure could
mean we would decide to address the matter on appeal despite
the lack of preservation. See, e.g., Mitchell, 2020 UT 26, ¶ 15; State v.
Boyles, 2015 UT App 185, ¶ 18 n.7, 356 P.3d 687.
   8  As we stated in the Background, the State brought to the
district court’s attention two other cases, involving two other
minors. See supra ¶ 10. But in its order, the district court stated
                                                    (continued . . .)
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                          STATE v. MALO
                       Opinion of the Court
    ¶21 Malo’s penultimate argument is that the district court
erred in considering the State’s objection to his petition. For
support, Malo points us to the following language in the
Expungement Act: “A prosecutor who opposes an expungement
of a case dismissed without prejudice or without condition shall
have a good faith basis for the intention to refile the case.” UTAH
CODE § 77-40-107(9)(b)(2018). Further, he argues, the district court
“was aware of the requirements of” the Expungement Act and
even acknowledged that the State had made no intention of
refiling the matter. Ergo, according to Malo, the district court
stepped out of bounds when it relied on the State’s objection. But
Malo misreads the Act’s strictures.
    ¶22 When it comes to questions of statutory interpretation,
“[o]ur goal . . . is to evince the true intent and purpose of the
Legislature. It is axiomatic that the best evidence of legislative
intent is the plain language of the statute itself.” Bryner v. Cardon
Outreach, LLC, 2018 UT 52, ¶ 9, 428 P.3d 1096 (citation omitted)
(internal quotation marks omitted). Therefore, “[t]he first step of
statutory interpretation is to look to the plain language, and
‘[w]here statutory language is plain and unambiguous, this Court
will not look beyond the same to divine legislative intent. Rather
we are guided by the rule that a statute should generally be
construed according to its plain language.” Id. (second alteration
in the original) (quoting Garrard v. Gateway Fin. Servs., Inc., 2009
UT 22, ¶ 11, 207 P.3d 1227). In doing so, we read the statute as a
whole, interpreting “its provisions in harmony with other statutes
in the same chapter and related chapters.” Id. ¶ 10 (citation
omitted) (internal quotation marks omitted).
   ¶23 The plain language of the Expungement Act does not
support Malo’s interpretation. Subsection 107(3) of the
Expungement Act unconditionally provides that “[t]he
prosecuting attorney and the victim, if applicable, may respond to
the [expungement] petition by filing a recommendation or
objection with the court within 35 days after receipt of the
petition.”9 UTAH CODE § 77-40-107(3)(2018). Upon receipt of an


Malo was prosecuted “for sexual misconduct with three other
minor children.” Malo did not argue against that finding, and
even if it was erroneous, it matters not when looking at the district
court’s reasoning as a whole.
   9 Malo did not challenge the State’s objection as untimely,
either below or on appeal.

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                       Opinion of the Court

objection, the court is obligated to set a hearing and to “notify the
petitioner and the prosecuting attorney of the date set for the
hearing.” Id. § 77-40-107(6)(a)(2018). The prosecuting attorney,
among others, may then “testify at the hearing.” Id.
§ 77-40-107(6)(b)(2018). Thus, the Expungement Act clearly
provides the State, acting through the prosecuting attorney, with
the right to support or object to a petition for expungement, both
orally and in writing.
    ¶24 Subsection 77-40-107(9)(b)(2018) of the Expungement Act,
the language Malo relies on, while not irrelevant to the exercise of
this right, has no play in this matter. Here’s why. Under
subsection 77-40-107(8), one of the conditions of expungement
with respect to cases dismissed without prejudice, like Malo’s, is
that the court “find[] by clear and convincing evidence that . . . the
prosecutor provided written consent and has not filed or does not
intend to refile related charges.” Id. § 77-40-107(8)(c)(2018).
Subsection 77-40-107(9)(b) (which, recall, states that “[a]
prosecutor who opposes an expungement of a case dismissed
without prejudice or without condition shall have a good faith
basis for the intention to refile the case,”) then, read in context,
places a “good faith” limitation on the prosecuting attorney’s
ability to prevent an expungement by simply representing to the
court that they intend to refile charges. Id. § 77-40-107(9)(b)(2018).
But it is undisputed that the State has no intention of refiling the
charges against Malo, causing us to conclude that subsection 9(b)
does not apply in this case.
    ¶25 The final argument Malo makes to us is that the district
court improperly weighed Malo’s presumption of innocence. This
argument essentially reduces to the following: (A) Malo is
presumed innocent of the charge against him; (B) the State has no
intention of refiling the charge; therefore, (C) the district court
cannot find that expungement is contrary to the public interest.
Thus, accepting Malo’s articulation of the presumption of
innocence effectively means the elimination of a petitioner’s
burden to show expungement is not contrary to the public interest
anytime a case is dismissed without prejudice, and where there is
no intention to refile. And he made this exact point clear at oral




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                          STATE v. MALO
                       Opinion of the Court
argument before us. But nothing in the text of the Expungement
Act sustains such a result.10
    ¶26 We are not callous to Malo’s plea. To be sure,
expungements often do serve the public interest. And there is
certainly nothing in today’s statutory scheme or our current
jurisprudence that even remotely suggests that expungements are
“unpardonable sin[s]” limited to journeys “on the wings of a rare
bird.” State v. Chambers, 533 P.2d 876, 879 (Utah 1975) (Henriod,
C.J., dissenting). But this backdrop in no way translates into a
determination by us that the district court improperly credited the
presumption of innocence, thereby abusing its discretion in
concluding that Malo had failed to establish by clear and
convincing evidence that granting his petition was not contrary to
the interests of the public. A mere invocation of the “presumption
of innocence,” given the circumstances in this case, is simply not
enough.
                          CONCLUSION
   ¶27 The district court did not abuse its discretion when it
denied Malo’s expungement petition. We affirm.




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   10 To be completely fair to Malo on this point, he also argues
that he has “suffered significant prejudice despite the fact that the
case was dismissed” and is “forced to proffer an explanation of
the charges anytime a background check is completed on him.”
Malo then recites the district court’s reasoning rejecting this
argument: “The Court considered the prejudice to Mr. Malo and
determined that the individual prejudice is insufficient to
establish that this expungement is not contrary to the interest of
the public.” Nothing about the district court’s response hints at an
abuse of discretion, and we adopt it.

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