R.M.S. v. Lafayette Cty. Prosecuting Att'y

696 S.W.3d 401

R.M.S., Appellant,

v.LAFAYETTE COUNTY PROSECUTING ATTORNEY, et al., Respondents.

WD 86328

Missouri Court of Appeals, Western District.

OPINION FILED: AUGUST 20, 2024

Appeal from the Circuit Court of Lafayette County, Missouri, The Honorable Dennis A. Rolf, Judge

Damien Sepher Bhakti De Loyola, Lindsey L. Wiederholt, Kansas City, MO, for appellant.

Ryan Joseph Gallagher, Jefferson City, MO, Kristen Lea Hilbrenner, Lexington, MO, for respondents.

Before Special Division: Gary D. Witt, Presiding Judge, Thomas N. Chapman, Judge and Zel Fischer, Special Judge

Gary D. Witt, Judge

[1, 2] R.M.S.¹ appeals the judgment of the Circuit Court of Lafayette County, Missouri ("trial court"), denying, after a hearing, his petition for expungement pursuant to Article XIV, section 2, of the Missouri Constitution ("Amendment 3"). On appeal, R.M.S. argues that the trial court erred in denying R.M.S.’s petition for expungement because: (1) possession of tetrahydrocannabinol ("THC") is legalized conduct under Amendment 3 and is subject to expungement; and (2) possession of THC meets the definition of a "marijuana offense" under Amendment 3 and is subject to expungement. We affirm the trial court’s expungement of R.M.S.’s conviction under Count II. We reverse the portion of the judgment of the trial court that denied the expungement of R.M.S.’s conviction under Count I, order R.M.S.’s conviction under Count I expunged, and order R.M.S. discharged from any incarceration arising solely from this offense, pursuant to the Missouri Constitution.

Factual and Procedural Background

On September 5, 2017, a Sergeant with the Missouri State Highway Patrol ("Ser- geant")² conducted a traffic stop of a vehicle on eastbound 1-70 in Lafayette County. R.M.S. was a front-seat passenger in the vehicle. Sergeant noticed marijuana residue in plain view on the center console of the vehicle. Sergeant also detected the odor of raw marijuana emanating from the interior of the car. Several items were found in a search of the vehicle, including the following items attributed to R.M.S.: (1) an approximately two-ounce bottle containing "apothecanna" cream labeled as "containing suspected THC"; (2) a bottle containing approximately one ounce of "Re-leaf’ brand "THC laced liquid"; and (3) a small amount of marijuana. R.M.S. and his companion told Sergeant that they obtained the items legally in Colorado, and there were receipts in the vehicle, for the purchase of the items at a Colorado dispensary.

On April 1, 2019, R.M.S. pled guilty to one count of the class D felony of possession of a controlled substance, pursuant to section 579.015³ for possession of "tetrahydrocannabinol" (Count I), and one count of the class A misdemeanor of possession of marijuana, a controlled substance, and the amount of the marijuana was more than ten grams pursuant to section 579.015 (Count II). Count I pertained to the apothecanna cream and the Re-leaf liquid. Count II pertained to at least some of the raw marijuana found in the vehicle. R.M.S. entered a plea of guilty to these two charges and was placed on probation. His probation was later revoked based on several violations of the terms of probation, and R.M.S. ultimately was sentenced to seven years’ imprisonment under Count I.

In January of 2023, R.M.S. filed a petition for expungement of marijuana-related offenses for both Counts I and II after Amendment 3 to the Missouri Constitution was adopted by a vote of the citizens of the State and became effective, legalizing recreational possession and use of marijuana and providing a mechanism for those who had previously been convicted of certain marijuana-related offenses to have their convictions expunged. The Lafayette County prosecutor’s office and the Missouri State Highway Patrol (collectively, "the State") opposed the petition as to Count I, arguing that the law at the time R.M.S. pled guilty was that THC did not fall within the definition of marijuana and that the expungement provisions did not apply to R.M.S.’s conviction on Count I. The State agreed that the conviction under Count II should be expunged pursuant to Amendment 3. At the hearing on the motion, as to Count I, the State acknowledged "that today, if you were found with the same substances in [THC], we couldn’t charge them." The trial court indicated it did not "think the wording [was] clear" and indicated it would prefer to let this Court address the matter. The trial court denied R.M.S.’s petition for expungement as to Count I, but granted it as to Count II. This appeal of the denial of expungement for Count I follows. Neither party challenges the trial court’s ruling granting the expungement of Count II.

Standard of Review

[3, 4] As in any court-tried case, we affirm an expungement judgment "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." N.M.C. v. Mo. State Highway Patrol Crim. Recs. Repository, 661 S.W.3d 18, 23 (Mo. App. E.D. 2023). Application of constitutional or statutory provisions are legal questions we review de novo. Id.

Analysis

R.M.S. raises two points on appeal: Point I, the court erred in denying R.M.S.’s petition for expungement because possession of THC is legalized conduct under Amendment 3; and Point II, the court erred in denying R.M.S.’s petition for expungement because possession of THC meets the definition of a "marijuana offense" under Amendment 3. R.M.S.’s two points on appeal make essentially the same argument, and we thus analyze them together.

R.M.S. was charged in both counts of the underlying case pursuant to the provisions of section 579.015 which provides:

579.015. Possession or control of a controlled substance--penalty

1. A person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance, except as authorized by this chapter or chapter 195.

2. The offense of possession of any controlled substance except thirty-five grams or less of marijuana or any synthetic cannabinoid is a class D felony.

3. The offense of possession of more than ten grams but thirty-five grams or less of marijuana or any synthetic cannabinoid is a class A misdemeanor.

4. The offense of possession of not more than ten grams of marijuana or any synthetic cannabinoid is a class D misdemeanor. If the defendant has previously been found guilty of any offense of the laws related to controlled substances of this state, or of the United States, or any state, territory, or district, the offense is a class A misdemeanor. Prior findings of guilt shall be pleaded and proven in the same manner as required by section 558.021.

5. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this chapter or chapter 195, it shall not be necessary to include any exception, excuse, proviso, or exemption contained in this chapter or chapter 195, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.

R.M.S. was charged under Count I with a violation under subsection 2 of this section for possession of a controlled substance (THC) other than possession of 35 grams or less of marijuana or any synthetic cannabinoid. R.M.S. was charged under Count II with a violation of subsection 3 of the offense of possession of marijuana, a controlled substance, and the amount of marijuana was more than ten grams. At the time of R.M.S.’s guilty plea, and prior to the enactment of Amendment 3, possession of THC was considered a separate offense from possession of marijuana. See State v. Fox, 658 S.W.3d 186, 190 (Mo. App. W.D. 2022). THC, although not defined in section 195.010, which defined marijuana, was interpreted to be "a substance or compound found in both cannabis [marijuana] and synthetic cannabinoids." Id. The THC-containing substances R.M.S. possessed were not considered marijuana under section 195.010 pre-Amendment 3.

With the passage of Amendment 3 to the Missouri Constitution, which was incorporated as Article XIV, section 2, Missouri not only legalized recreational possession and use of marijuana, but also provided for the expungement of prior marijuana related convictions and provided several new definitions. Under the constitutional amendment, many of these expungements take place automatically, without the convicted person having to petition the courts or take any affirmative action requesting relief. See Mo. Const. art. XIV, § 2.10(7)(b)c (for those on probation or parole for their offenses); Id. § 2.10(8)(a) (for those no longer under the supervision of the department of corrections).

While not automatic, persons still incarcerated for marijuana offenses may petition the courts for expungement pursuant to section 2.10(7)(a)c, which states,

Any person currently incarcerated in a prison … [w]ho is serving a sentence for a marijuana offense which is a misdemeanor, a class E felony, or a class D felony … may petition the sentencing court to vacate the sentence, order immediate release from incarceration and other supervision by the department of corrections, and the expungement of all government records of the case. Such expungement from all government records shall be granted for all of the person’s applicable marijuana offenses, absent good cause for denial.⁴

* * *

The court shall not assess any filing fee for these filings. The office of the state public defender shall prepare and make readily available and accessible a pleading form that may be filed pro se for this purpose. The circuit courts of the state shall also make readily available and accessible this pleading form.

Amendment 3 is, "[t]o the fullest extent possible, … [to] be interpreted in accordance with the purpose and intent set forth in this section[,]" which is,

to make marijuana legal under state and local law for adults twenty-one years of age or older, and to control the commercial

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