Expungement of Less Serious Criminal Convictions

In re Kollman, Jr., Petition for Expungement, 210 N.J. 557 (2012).  “To afford a second chance to one-time offenders convicted of less serious offenses, who have led law-abiding lives since conviction, the Legislature enacted a law that allows certain records to be expunged after ten years.  N.J.S.A. 2C:52-2(a).  In 2010, the Legislature amended the statute to broaden opportunities for expungement.”  That statute allows expungement five years after an offender completes his or her sentence.  This opinion, written by Chief Justice Rabner for a unanimous Supreme Court, clarifies the factors that courts may consider in making the fact-sensitive inquiry of whether expungement is appropriate.  The Court held that applicants for expungement bear the burden of proving that expungement is “in the public interest,” and to prove the “objective criteria” of the statute– the passage of five years, no new convictions, and that the to-be-expunged conviction is of the less serious variety that the Legislature contemplated.

Defendant pleaded guilty to one count of selling “ecstasy,” a controlled dangerous substance.  That was a third-degree offense.  A jail term of 45 days was imposed, along with a three-year period of probation and various fines and penalties.  The probationary period was terminated after 18 months.  Kollman complied with all conditions of probation.

Over seven years later, Kollman petitioned to expunge his conviction.  He showed that he had completed college, worked full-time while in school, performed community service projects, and had no further involvement with the law.  He also submitted 21 letters of reference to the trial judge.  The judge denied expungement, due to the relatively serious nature of the offense and the community’s right to be aware of it.  The Appellate Division found no abuse of discretion in that ruling and affirmed it.  Kollman petitioned the Supreme Court, which reversed and remanded for reconsideration.

As in many other cases, the Court began by noting that its “primary goal when interpreting a statute is to determine and carry out the Legislature’s intent.”  The initial focus is on the plain language of the statute, which will be conclusive if unambiguous.  If there is ambiguity, the Court can look to extrinsic evidence such as legislative history.

After describing the history of the expungement statute, culminating in the 2010 amendment, the Court determined that the applicant has the burden of proof.  The applicant had the burden of proving the objective criteria under the prior version of the statute, and the fact that the Legislature did not alter that meant that the burden should remain on the offender.  The burden of meeting the “public interest” prong is also on the applicant, Chief Justice Rabner held.  “[T]he petitioner is uniquely qualified to demonstrate facts about his or her character and recent conduct,” and since the applicant would benefit from a finding of “public interest,” that was another reason to place the burden of proof on him or her.

The Court then addressed the three factors that the statute makes relevant to the “public interest” determination:  “the nature of the offense, and the applicant’s character and conduct since conviction.”  The Court drew on “a thoughtful, recent Appellate Division opinion by Judge Ostrer,” In re LoBasso, 423 N.J. Super. 475 (App. Div. 2012), a nice “attaboy” for Judge Ostrer.  The analysis that follows will be required reading for anyone involved in an expungement case from now on.

On the facts of this particular case, the Court held that, under the abuse of discretion standard that is applicable to the weighing of competing factors that make up the “public interest” inquiry, the matter needed to be reevaluated by the trial court.  The Court remanded for that purpose.