State v. Malo

469 P.3d 982

STATE of Utah, Appellee,

v.Chad James MALO, Appellant.

No. 20180970

Supreme Court of Utah.

Heard May 19, 2020

Filed July 6, 2020

Sean D. Reyes, Att'y Gen., Nathan H. Jack, Asst. Solic. Gen., Salt Lake City, Kendall G. Laws, Monticello, for appellee

Vincent T. Stevens, Ogden, for appellant

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 Gone are the days when courts poeticized the expungement of criminal records as "unpardonable sin[s]" that "should fly on the wings of a rare bird." State v. Chambers , 533 P.2d 876, 879 (Utah 1975) (Henriod, C.J., dissenting). Today's decisions offer a real world take, often describing the "obvious practical humanitarian objectives" of expungement. Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1270 (2016). It is against the backdrop of this shift in norms that appellant, Chad Malo, asks us to reverse the district court's decision denying his expungement petition.

¶2 Clinically put, this case presents the following question: Did the district court abuse its discretion in determining that Malo failed to prove by clear and convincing evidence that expunging his criminal record in this matter was in the public interest? Per Malo, the district court erred in four regards: (1) relying on the order binding him over to face trial, (2) relying on expunged cases, (3) considering the objection of the State, and (4) giving insufficient weight to Malo's presumption of innocence.

¶3 Because we can make out no error in either how the district court handled this matter or its decision, much less reversible error, we affirm.

BACKGROUND

¶4 This case doesn't turn on the facts. We recite only those particulars needed for context.

¶5 The State charged Malo with one count of unlawful sexual conduct with a 16- or 17-year-old, a third-degree felony. See UTAH CODE § 76-5-401.2. The felony charge was based on the allegations that (1) Malo had sex with Britany and (2) at the time he was in his early forties and she was just seventeen.¹

¶6 The matter proceeded to a preliminary hearing. At the hearing, Britany testified that days after turning seventeen she went on a houseboat trip to Lake Powell with her family and others, including Malo. She further testified that during the trip Malo unsuccessfully tried to "go up [her] shirt and down [her] pants" and that, at a point later in the trip, "he pushed [her] up against [a] wall" on the houseboat and "proceeded to pull down [her] pants and have sex with [her]."

¶7 The district court issued a written decision binding Malo over as charged. Malo is spot on when he says that the district court commented in its decision that Britany's account contained some "inconsistencies [that] undermine her credibility." But he's off in suggesting that the court threw shade at Britany or the State's case in its ruling; indeed, the court went out of its way to remark on Britany's resolve: "[T]he fact that she steadfastly refused to crumble under skeptical, even critical, questioning from her father and her sister, over a period of several hours, supports her credibility."

¶8 The case was set for trial. Shortly before trial, however, Britany was "experiencing serious medical complications making her availability for the [ ] jury trial impossible," causing the State to file a Motion to Dismiss Without Prejudice. Malo neither opposed the State's motion nor asked that the dismissal be with prejudice. The district court granted the motion and dismissed the matter without prejudice, leaving open the possibility that the State could refile the charge against Malo at a later date.

¶9 Seven months later, Malo filed his expungement petition. The State conceded in response that there was "not a high likelihood" that it would refile criminal charges. Still, it objected, arguing that expunging Malo's arrest record "would be contrary to [the] public interest."

¶10 In support of its objection, the State brought to the district court's attention two other cases in which Malo had faced criminal charges for inappropriate sexual contact with minors. One was in Kane County, where Malo had been charged with six counts of aggravated sexual abuse of a child. He was acquitted on all charges. The other was in Davis County, where he was charged with two counts of sexual abuse of a child, which was dismissed. The Kane County and Davis County cases involved the same two children. Malo had moved for but not yet been granted an expungement in either case when the State lodged its objection.²

¶11 An expungement hearing followed. At no time, either at the hearing or in his written response to the State's objection, did Malo object to the State introducing and relying on the Kane and Davis County charges to contest his petition.³ Indeed, instead of objecting to the State's use of these matters and seeking to shield them from the district court's consideration, Malo sought to utilize these expungements as a sword, arguing at the hearing that he "has never been found guilty of anything, much less this crime" and that the judges in the Kane and Davis County matters "found it appropriate" to expunge them. Apparently, Malo felt this construct worked well with one of his two arguments at the hearing, namely his presumption of innocence. Malo's other argument at the hearing, generously read, was that because the State had made clear that it was unlikely to refile charges against Malo with respect to Britany's allegations, it was unable to maintain its objection to the expungement petition.

¶12 Following the expungement hearing, the district court issued a written decision denying Malo's petition on the basis that Malo had failed to establish by clear and convincing evidence that his expungement would not be contrary to the public interests. The court offered three reasons in support of its conclusion, two of which are in play here: (1) the trial court's probable cause determination at the preliminary hearing following Malo's arrest; and (2) the Kane and Davis County prosecutions charging Malo with sexual misconduct.

¶13 Malo timely filed a Notice of Appeal. The matter was originally docketed in the Court of Appeals; however, shortly before oral argument, the Court of Appeals certified the case to us pursuant to Utah Code section 78A-4-103(3) and Rule 43 of the Utah Rules of Appellate Procedure. We exercise jurisdiction under Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶14 While not bottomless, it is obvious to us that district courts possess deep discretion in deciding whether a petitioner has clearly and convincingly made the case for expungement. The floor is whether the court abused its discretion. See State v. Chambers , 533 P.2d 876, 879 (Utah 1975) ("[W]e cannot support the State's claim [that expungement was not in the public interest] ... because of the discretionary function of the trial court, and because the trial court's performance has not been shown to have exceeded its discretionary boundaries."). However, we assess the subordinate issues that underly a district court's expungement decision differently. We review the district court's underlying factual findings for clear error. See Arnold v. Grigsby , 2018 UT 14, ¶ 9, 417 P.3d 606. And we review its legal determinations for correctness, deferring to none. Id.

ANALYSIS

¶15 To succeed before the district court on his expungement petition, Malo had to prove by clear and convincing evidence that: (1) his "petition and ... certificate of eligibility [were] sufficient;" (2) all "statutory requirements ha[d] been met;" (3) the prosecution had neither refiled charges nor intended to refile charges; and (4) the expungement was "not contrary to the interests of the public." UTAH CODE § 77-40-107(8)(2018).⁴ The prosecution spotted him the first three elements, leaving only the question of whether he could establish that the expungement of his criminal record in this matter was not contrary to the public interest. The district court determined that Malo failed to meet his burden on the public interest prong based primarily on the probable cause determination at Malo's preliminary hearing and the charges in the Kane and Davis County matters.

¶16 Malo asks us to reverse the district court for four reasons. First, the district court improperly relied on the order binding him over to face trial. Second, the court improperly relied on the expunged cases. Third, the court should not have considered the State's objection. And fourth, the court gave insufficient weight to the presumption that Malo is innocent of the alleged conduct. Malo is wrong as a matter of law with respect to the first and third arguments. He failed to preserve the second argument for appeal. And as to the fourth, he has failed to carry his burden of establishing that the district court abused its discretion. Accordingly, we affirm the district court's decision denying Malo's petition to expunge from his criminal record his arrest on the charge at issue—unlawful sexual conduct with a 16- or 17-year-old.

¶17 Malo leads off with the argument that the district court erred in taking into consideration the decision to bind him over for trial. In other words, Malo contends that it is inappropriate per se for a district court adjudicating an expungement petition to rely on an order binding a matter over for trial: "Because such a low threshold is placed on the [p]reliminary [h]earing ..., it was improper for the court to rely on the fact that the matter was bound over for trial in denying Mr. Malo's expungement."

¶18 We assume that by "low threshold" Malo means our well-established evidentiary and probable cause standards for preliminary hearings. If so, it is true that at a preliminary hearing a magistrate is duty-bound to bind over a defendant if, in "draw[ing] all reasonable inferences in the prosecution's favor," State v....