                                                     In the
                               Missouri Court of Appeals
                                           Western District
 J.A.,                                                     )
                                                           )
                     Appellant,                            )    WD82606
                                                           )
 v.                                                        )    OPINION FILED:
                                                           )    December 17, 2019
 MISSOURI DEPARTMENT OF                                    )
 CORRECTIONS, MISSOURI STATE                               )
 HIGHWAY PATROL AND PETTIS                                 )
 COUNTY PROSECUTOR,                                        )
                                                           )
                   Respondents.                            )

                  Appeal from the Circuit Court of Pettis County, Missouri
                           The Honorable Robert L. Koffman, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
                              and Gary D. Witt, Judge


         J.A. ("Appellant")1 appeals the judgment of the Circuit Court of Pettis County

dismissing his petition for expungement. J.A. raises two points of error contending that




         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." R.G. v. Mo. State Highway Patrol, 580 S.W.3d 38, 39 n. 1 (Mo. App. W.D. 2019).
the circuit court erred in its application of section 610.140.5. 2 The judgment is reversed,

and the case is remanded with instructions.

                                 Factual and Procedural Background

       On July 25, 2018, J.A. filed a Petition for Expungement in the circuit court

("Petition"). J.A. sought expungement of his 1970 conviction for felony possession of a

stimulant drug in violation of section 195.240,3 specifically amphetamine. The Petition

named as defendants multiple Pettis County entities, the Missouri State Highway Patrol

("Highway Patrol"), and the Sedalia Police Department. The Highway Patrol was the only

entity that filed an Answer; it also filed a Motion to Dismiss.

       The circuit court held a hearing on February 1, 2019. J.A. admitted that he was

convicted of felony possession of a stimulant drug on May 6, 1970. He was sentenced to

three years' imprisonment, he served 11 months, and was completely released on May 7,

1973. In 1976, he was convicted of the sale of amphetamines in the United States District

Court for the Eastern District of Missouri. With the exception of one traffic ticket, J.A.

had not been found guilty of any misdemeanor or felony offense in the past 40 years.

       In arguing both against expungement and in support of its Motion to Dismiss, the

Highway Patrol contended that J.A. was ineligible for expungement of his 1970 conviction

because he was found guilty of an additional felony in less than seven years after the

completed authorized disposition of the conviction.




       2
           All statutory references are to RSMo. 2016, as updated through July 25, 2018 unless otherwise indicated.
       3
           RSMo. (1970).

                                                         2
       The circuit court entered its Amended Findings of Fact and Conclusions of Law on

February 26, 2019 ("Judgment").4 The court found that the calculation of the seven-year

period was from the date of completed disposition and found J.A. ineligible for

expungement due to his 1976 conviction. As such, the Judgment dismissed J.A.'s Petition.

       This appeal followed.

                                           Standard of Review

       As a court-tried case, we will affirm the judgment of the circuit court unless there is

no evidence to support it, it is against the weight of the evidence, or it erroneously declares

the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); S.Y. v. Askren, 581

S.W.3d 721, 722 (Mo. App. W.D. 2019). The circuit court's statutory interpretations are a

question of law to be reviewed de novo. S.Y., 581 S.W.3d at 722.

                                                 Discussion

       The facts of this case are not in dispute. J.A. was convicted of a felony in 1970 and

was not completely released from his disposition until May 7, 1973. Within three years of

that final disposition, he was found guilty of an additional felony offense in federal court.

The circuit court determined the proper interpretation of subsections 610.140.5(1) and (2)

was that, to be entitled to expungement of a felony, a petitioner must show that he or she

did not commit another felony or misdemeanor for at least seven years from the date of

completion of final disposition of the felony sought to be expunged. In his first point on

appeal, J.A. argues that the circuit court erred in its interpretation. J.A. argues that



       4
           The original judgment was entered February 19, 2019.

                                                        3
subsections (1) and (2) only require a showing that he had not committed another felony

or misdemeanor within the seven years immediately preceding the filing of the petition for

expungement.

         The relevant portion of section 610.140.5 reads:

         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:

         (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(1)-(2).5

         This Court directly addressed the proper interpretation of section 610.150.5(1) and

(2) in R.G. v. Missouri State Highway Patrol, 580 S.W.3d 38 (Mo. App. W.D. 2019), which

was handed down after the Judgment was entered but during the pendency of this appeal.

In R.G., petitioner sought the expungement of two misdemeanor convictions for disturbing

the peace that occurred within three years of each other but more than three years prior to

the filing of the petition for expungement.                         Id.at 39-40.         The circuit court granted



         5
            Section 610.140.5 was amended, effective August 28, 2018, after the Petition was filed but before the
Judgment was entered in this case. As such, we apply the prior version of Section 610.140.5. Subsection (1) now
provides:
          (1) At the time the petition is filed, 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[.]"

                                                              4
expungement and the Highway Patrol appealed, arguing the proper timeframe considered

is not from the date of the petition looking back but rather from the date of the completion

of the final disposition looking forward. Id. at 40-41. This Court affirmed the judgment

of the circuit court, noting that:

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

Id. at 41. This Court further explained, "[t]he 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."        Id. at 42.   "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 determine if the petitioner had changed their behavior so as to meet the

statutory qualifications for expungement and deserve[s] the second chance provided by the

statute." Id. This interpretation was affirmed again by this Court in S.Y. v. Askren, 581

S.W.3d 721 (Mo. App. W.D. 2019), deciding the same issue.

       The circuit court and the parties did not have the benefit of R.G. and S.Y. when this

case was presented and when the circuit court issued its Judgment. After the opinion in

R.G. became final, the parties to this action filed a Joint Request for Remand to Trial Court,

jointly requesting this Court remand the case back to the trial court for further action

consistent with R.G. as both parties acknowledge that R.G. "resolves all issues on appeal."

The parties further jointly waived oral argument to expedite the appellate process.

                                                  5
       In this case, the time period specified for the underlying offense in subdivision (1)

of section 610.140.5 would be between July 25, 2018, the day J.A. filed his Petition for

expungement, and July 25, 2011, seven years prior to the filing of the Petition. The record

does not reflect any misdemeanor or felony convictions during this time period. Thus, the

circuit court erred in dismissing the Petition. The judgment is reversed, and the case is

remanded with directions to the circuit court to enter judgment granting J.A.'s petition for

expungement of his 1970 conviction for felony unlawful possession of a stimulant drug,

which was entered in Pettis County.

       Given our holding as to J.A.'s first point on appeal, we need not address his second

allegation of error.

                                       Conclusion

       For the reasons stated above, we reverse and remand the case with instructions.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                             6
