People v. Link

570 N.W.2d 297 (1997) 225 Mich. App. 211

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Daniel James LINK, Defendant-Appellant.

Docket No. 191991.

Court of Appeals of Michigan.

Submitted April 3, 1997, at Lansing. Decided August 26, 1997, at 9:00 a.m. Released for Publication November 25, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, Richard H. Browne, Interim Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for People.

Eugene S. Hoiby and Associates by Eugene S. Hoiby and Thomas A. Beck, Livonia, for Defendant-Appellant.

Before SAAD, P.J., and NEFF and JANSEN, JJ.

SAAD, Presiding Judge.

I

Nature of the Case

Defendant appeals as of right from the circuit court's June 1995 order denying his motion to expunge his 1989 conviction of third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(a); M.S.A. § 28.788(4)(1)(a) (penetration of a child, aged thirteen to sixteen). After this appeal was filed and briefed, Michigan's expungement statute, M.C.L. § 780.621; M.S.A. § 28.1274(101), was amended, 1996 P.A. 573, effective April 1, 1997. Therefore, we must determine whether this amendment, which expressly precludes expungement of criminal sexual conduct convictions, operates retrospectively to preclude expungement of this 1989 criminal sexual conduct conviction. We decide that it does, and consequently, we affirm the circuit court's decision.

II

Background

On November 2, 1989, defendant was convicted of third-degree criminal sexual conduct following his plea of nolo contendere. On December 15, 1994, defendant filed an application to set aside his conviction pursuant to M.C.L. § 780.621; M.S.A. § 28.1274(101). The prosecutor objected to expungement on various grounds, including the existence of other alleged criminal convictions. The circuit court ultimately denied defendant's application and his motion for reconsideration.^[1] On January 12, 1996, defendant filed his claim of appeal in this Court.

It is undisputed that, until March 31, 1997, Michigan law, M.C.L. § 780.621; M.S.A. § 28.1274(101), permitted expungement of second- and third-degree criminal sexual conduct convictions, where a five-year conviction-free period had elapsed before the filing of an application for expungement. It is similarly undisputed that 1996 P.A. 573, which amended M.C.L. § 780.621; M.S.A. § 28.1274(101), provides:

Sec 1....

* * * * * *

(2) A person shall not apply to have set aside, and a judge shall not set aside, a conviction for a felony for which the maximum punishment is life imprisonment or an attempt to commit a felony for which the maximum punishment is life imprisonment, a conviction for a violation or attempted violation of ... 750.520c, 750.520d [third-degree criminal sexual conduct], 750.520g of the Michigan Compiled Laws, or a conviction for a traffic offense.

* * * * * *

Sec 2. This amendatory act shall take effect April 1, 1997. [Emphasis added.]

Plaintiff's appeal raises the question whether Michigan courts may expunge a third-degree criminal sexual conduct conviction when the conviction and the filing of an application for expungement occurred before April 1, 1997 (the effective date of the statutory amendment).

III

ANALYSIS

Under Michigan law, a new or amended statute generally applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give the statute retrospective effect. People v. Russo, 439 Mich. 584, 594, 487 N.W.2d 698 (1992). However, an exception to the general rule is recognized where a statute is remedial or procedural in nature. Id. "Statutes that operate in furtherance of a remedy already existing and that neither create new rights nor destroy rights already existing are held to operate retrospectively unless a different intention is clear." Id.

Here, we conclude that the expungement statute is remedial and that it does not create new or destroy existing rights. Under the terms of the expungement statute (both before and after the April 1, 1997, amendment), the setting aside of a conviction "is a privilege and conditional and is not a right." M.C.L. § 780.621(9); M.S.A. § 28.1274(101)(9) (emphasis added). Furthermore, this Court has construed similar statutes, M.C.L. § 762.11; M.S.A. § 28.853(11) and M.C.L. § 762.14; M.S.A. § 28.853(14),^[2] which operate to close criminal records under certain circumstances, to be remedial. People v. Trinity, 189 Mich.App. 19, 21, 471 N.W.2d 626 (1991).

We are also instructed by State v. Heaton, 108 Ohio App. 3d 38, 669 N.E.2d 885 (1995), where the defendant was convicted of "gross sexual imposition on a three-year-old" in 1988 and moved for expungement of his conviction in November 1994. On December 9, 1994, the Ohio expungement statute was amended (similar to our Michigan statute), in such a manner that the defendant's sexual crime could no longer be expunged. The defendant there argued that the trial court erred in denying his application for expungement. In affirming the decision of the trial court, the appellate court said:

Appellant contends that the right of expungement provided to him in 1988 and at the time of his conviction, and which was still available to him at the time he filed his application for expungement in November 1994, was a substantive right which vested before the enactment of amended R.C. 2953.36. We disagree.

* * * * * *

... [W]e find that appellant never had a substantive vested right. "A right cannot be regarded as vested in the constitutional sense unless it amounts to something more than an expectation of future benefit of interest." ...

The expungement statute is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having the record of their first conviction sealed, should the court in its discretion so decide. Expungement is a matter of privilege, never of right. We accordingly find no violation of the rule against retroactivity in the case at bar. Heaton, supra at 40-41, 669 N.E.2d 885. [Citations omitted.]

The court's reasoning in Heaton is clearly applicable here. See also State v. TPM, 189 N.J.Super. 360, 365, 460 A.2d 167, 170 (1983) (refusing to permit expungement after an amendment in the statute, noting that "[l]egislation which readjusts rights and burdens is not unconstitutional solely because it upsets settled expectations"); State v. Burke, 109 Or.App. 7, 12, 818 P.2d 511 (1991) (refusing to permit expungement after an amendment, finding no violation of the Ex Post Facto Clause because expungement is "unrelated to the length or nature of an individual's incarceration or constructive custody" and it "does not increase imprisonment, forestall parole or extend probation").

In determining whether to apply a statute retroactively, it is also appropriate to consider "``the object of the statute, the harm which it is designed to remedy,'" and to "``apply a reasonable construction which best accomplishes the statute's purpose.'" Russo, supra at 595, 487 N.W.2d 698. (Citation omitted.) Although we acknowledge that a Senate bill analysis is not an official statement of legislative intent, we nonetheless find the Senate Fiscal Agency Bill Analysis of S.B. 1177, November 6, 1996, pp. 2-3, which became 1996 P.A. 573, effective April 1, 1997 (which precludes expungement of criminal sexual conduct convictions), helpful with regard to the question whether the amendment should apply retroactively:

Although the Michigan Court of Appeals has ruled that the nature of a crime cannot stand alone as a determining factor in a court's denial of a petition to set aside a conviction, some offenses are so serious and sensitive that convictions for them should not be allowed to be expunged. Indeed, Public Act 213 of 1965 excludes from eligibility for expunction any felony for which the maximum punishment is imprisonment for life. Given the nature of the crimes, CSC felonies should be included in the exception to the expunction statute.

Expunction provisions presumably were enacted to allow a person who had committed a youthful indiscretion and, later, turned his or her life around, to make amends and clear the slate on his or her criminal record. Some crimes, such as robbery or breaking and entering, are typically committed by young offenders and a clean record over a period of years may be a good indication that the person will not turn back to criminal activity. This is not the case with sexual offenders, however, and they simply pose too great a risk to allow their convictions to be set aside. It is a generally held belief in the criminal justice field that sexual offenders are the least rehabilitatable of all criminals and that sex crimes are not as limited to youthful offenders as are other crimes.... In addition, due to their sensitive nature, sex crimes are among the least reported violations. Consequently, even a review of a sex offender's "circumstances and behavior" since conviction, as required by Public Act 213, may not reveal an accurate depiction of his or her activities.

While a conviction for first-degree CSC already may not be expunged, because it is a life-maximum offense, from a public safety standpoint, convictions for the felonies of second- and third-degree CSC, as well as assault with intent to commit CSC, also should be excluded from eligibility for expunction. Allowing the expunction of those offenses may place children in danger. If those sexual assault violations are expunged from a person's criminal record, a potential employer cannot determine whether an applicant has a history of molesting children, for instance. A criminal history check on a person applying for a job as a teacher or day care worker, or on a person wishing to volunteer for a children's organization such as the Boy Scouts or a youth sports league, would turn up no indication that the applicant had been convicted of a sex crime if his or her record had been expunged. Even a law enforcement officer or court could not reveal that information, as disclosure of an expunged conviction is a criminal violation under Public Act 213. [Emphasis added.]

This analysis similarly supports our conclusion that the amendment of the expungement statute is remedial and therefore should apply retroactively.

Accordingly, we conclude that the expungement statute (and its amendment) are remedial and that the amendment therefore may be applied retroactively. The circuit court's decision denying defendant's application for expungement is affirmed, though on different reasoning.

Affirmed.

NOTES

[1] The court found defendant's application flawed because it failed to contain a statement by defendant indicating that he had not been convicted of an offense other than the one he sought to have set aside. Second, the court found that defendant had been convicted of an offense other than the criminal sexual conduct offense and, therefore, was ineligible for expungement. Finally, the court stated that even if defendant were eligible, it would deny expungement because of the nature and circumstances of the crime. Though we disagree with the court's reasoning, for the reasons set forth in our opinion, we nonetheless affirm the result.

[2] M.C.L. § 762.11; M.S.A. § 28.853(11) and M.C.L. § 762.14; M.S.A. § 28.853(14) permit persons who commit crimes (other than a felony punishable by life imprisonment, a major controlled substance offense, or a traffic offense) while they are aged seventeen to twenty and who successfully complete youthful trainee status to have their criminal record closed.