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Giving a second chance

Okay, so I don't like the 8th District's work on hearsay and Crawford.  Their decisions on sentencing are a mess.   But they do a good job with 404(B) evidence, they're excellent on search and seizure, and, as they proved again this week in State v. M.D., they're about as good on the issue of expungement as you're going to find.

M.D. was a pawnshop operator, and was convicted in a jury trial back in 1998 of receiving stolen property and forgery in the theft of a laptop computer.  He did a year in prison, and filed a motion for expungement in 2008.  The court held a hearing on it, where the State argued against granting it, saying that the case had been "an extremely important case in our office," and that the "nature of the crime" outweighed M.D.'s privacy interest in expunging it.  A few days later, the court denied the application without opinion.

Up it went to the 8th District, and back it came.  In M.D. I, the court held first that the "nature of the offense" alone couldn't justify denial.  The denial could still have been a problem -- after all, that's reviewed on an abuse of discretion standard -- but the court held that since the trial judge hadn't given any explanation for why it denied the petition, it couldn't determine whether the judge had properly exercised his discretion, so reversed and remanded to give the judge an opportunity to explain his position.

The judge denied it again, this time finding that the separate acts of receiving and forgery precluded M.D. from claiming that he was a first offender.  Up it went again, and back it came a second time.  The statute allows expungement for "two or three convictions resulting from the same indictment," so long as the offenses are committed within a three-month period, and in M.D. II the court held that the judge had incorrectly calculated that period, so it reversed and remanded again.

The judge denied the petition for a third time, citing three reasons.  First, he found because the offense was committed in the course of M.D.'s business, the public had a right to know about the conviction in order to determine whether to conduct business with him in the future.  Second, the judge determined that since the papers in support of the application showed that he had maintained a management position in his new job, he hadn't shown that the conviction detrimentally affected him.  Finally, in a letter submitted with the application for expungement, M.D. had stated that an employee had engaged in the criminal conduct and that M.D.'s mistake was in not finding and remedying the issue, and the judge found this claim, which closely paralleled M.D.'s testimony at trial, to be insufficiently remorseful.

Remember what I said about the abuse of discretion standard for reviewing the judge's decision?  If you do that here, it's almost impossible to reverse.  To be sure, the second rationale is clearly wrong.  As the court notes, that's circular logic:  you can't say that a person needs to show he's rehabilitated -- gotten a good job, become a productive member of society -- in order to be entitled to have his conviction expunged, and then turn around and say that because he's gotten a good job and become a productive member of society, he doesn't need to have the conviction expunged.  But the other two parts, especially the latter, seem to fall well within the ambit of judicial discretion.  When has a court second-guessed a trial judge on a determination of a defendant's remorse?

So what the opinion does is use a different standard of review:  contrary to law.  The judge's first rationale, the "public's right to know" is disposed of in a couple of sentences:  M.D. "is now 50 years of age and has led a law abiding life since these convictions in 1998," and he's no longer in the pawn business.

But it's on the third rationale that the court breaks some new ground, which may well extend beyond expungement and into sentencing law.  Basically, the court holds that

as a matter of law, a defendant who exercises his right to a trial and is found guilty, can be deemed "rehabilitated" even if that person did not expressly state that he was guilty of the offense.  The defendant. . . exercised his right to trial and testified as to his innocence at trial.  In that context, expecting the defendant to express remorse for a crime for which he denied guilt amounted to perjury, and the court erred as a matter of law in imposing a contrary requirement.

That raises a question:  if a person who goes to trial and denies guilt can be deemed rehabilitated for expungement purposes, can a judge use lack of remorse as a sentencing factor for someone who goes to trial?

I'm not sure M.D. can be extended to that, but it's an argument that passes the giggle test, and when it comes to sentencing law, those are in short supply.  M.D. definitely extends the 8th's sympathetic attitude toward those seeking expungement.  Five years ago, I did a post about one 8th District decision in which the court had suggested that prosecutors should use their discretion in not opposing expungement where there's a subsequent conviction for a relatively minor offense -- in that case, "open container prohibited" -- which would otherwise be disqualifying.   Last year in State v. J.K., as I discussed here, it went through a rather tortuous effort to arrive at the conclusion that although arson is a crime of violence which precludes expungement, attempted arson is not.  And two years ago, in State v. L.M., the court affirmed the grant of expungement, despite the claims of the State that the judge had granted without the mandatory hearing; the court found that since the State didn't provide the transcript of the hearing it claimed was never held, in the absence of the transcript the court had to presume regularity of the proceedings below.  Yes, you read that right.

So, the moral here might be that if you're going to commit a crime, do it here in Cuyahoga County.  Just make sure you only do it once.



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