State v. Singleton

317 Or.App. 49

503 P.3d 499

STATE of Oregon, Plaintiff-Respondent,

v.Adam James SINGLETON, Defendant-Appellant.

A175454

Court of Appeals of Oregon.

Submitted November 5, 2021.

January 12, 2022

Adam L. Dean filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Mooney, Judge, and DeVore, Senior Judge.

DeVORE, S. J.

Defendant filed a motion under ORS 137.225 (2019), amended by Or. Laws 2021, ch. 486, § 1,¹ to set aside his fourth-degree assault conviction, entered March 2009, and seal the records of arrest. The state had no objection, but the trial court denied defendant's motion and did so without holding a hearing. Defendant appeals the denial of his motion. In his first assignment of error, he contends that the trial court erred in determining him to be ineligible for expungement. In his second assignment, he contends that the trial court erred by denying his motion without allowing him to have an evidentiary hearing. We agree with defendant, and, because it is a case of first impression, we write principally to address his second assignment. We vacate and remand.

The underlying pertinent facts are not in dispute. Defendant filed his motion with an attached declaration and fingerprint card. His declaration contained factual assertions sufficient to satisfy the statutory requirements to have his 2009 assault conviction and related arrest record set aside. The district attorney did not challenge any of defendant's factual assertions and affirmed in writing to the trial court that the state had "no objection to entry of an order setting aside" the conviction and arrest record. The trial court denied the motion in writing:

"Motion is denied. Defendant convicted 2009 Strangulation (D091244M); Unauthorized Departure (D096095M); DUII & Menacing (D072840M); probation revoked this case 5/26/10)."

Defendant appealed the trial court's denial of his motion.

"We review for legal error a trial court's determination of whether a movant is entitled to have his *** conviction set aside." State v. Kindred , 314 Or. App. 280, 283, 499 P.3d 835 (2021). ORS 137.225 provides a mechanism for certain defendants, under specific circumstances, to have a record of arrest and a criminal conviction set aside. When a defendant has established that he is eligible to have his conviction set aside, the court may deny such a motion if the court determines that the "circumstances and behavior of the applicant" since the arrest and conviction do not "warrant" granting the set-aside remedy. ORS 137.225(3).

As to the first assignment, the state agrees with defendant that, on this record, the trial court's explanation for denying the motion does not appear to be legally correct, and that we should remand to the trial court for reconsideration of its decision. The state's concession is well taken, and we accept it.

As we explained in State v. Bomar , 79 Or. App. 451, 454, 719 P.2d 76 (1986), "[i]n State v. Langan , 301 Or. 1, 718 P.2d 719 (1986), the Supreme Court squarely rejected the state's contention *** that a trial court's decision to set aside a conviction is entirely discretionary." In Langan , the Supreme Court considered the legislative history of ORS 137.225 and explained that "the legislature chose a policy in favor of setting aside the convictions of qualified applicants rather than leaving the decision to judicial discretion." 301 Or. at 8, 718 P.2d 719. We have repeatedly "held that Langan requires proof that a person did something ‘contrary to public law’ for a court to deny a motion under ORS 137.225(3)." Kindred , 314 Or. App. at 285, 499 P.3d 835. Upon review of the record, we agree with the parties that a denial of defendant's motion is not supported by the evidentiary record. The trial court appears to have relied on facts not presented by the parties. As matters stand, the record does not contain evidence of "circumstances and behavior" that would justify a denial of defendant's motion. The trial court therefore erred in denying defendant's motion based on this record.

In the second assignment of error, defendant asserts that the trial court erred in denying his motion without holding an evidentiary hearing. The state does not dispute the point. Defendant argues that the plain language of ORS 137.225 "clearly envisions an evidentiary hearing" and points to provisions in which a hearing is mentioned. In ORS 137.225(2), the statute provides, in part:

"(a) A copy of the motion and a full set of the defendant's fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed, and opportunity shall be given to contest the motion . ***

"(b) When a prosecuting attorney is served with a copy of a motion to set aside a conviction under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the crime by mailing a copy of the motion and notice to the victim's last-known address."

(Emphases added.) Similarly, ORS 137.225(3) provides, in part:

"Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as the court deems proper. The court shall allow the victim to make a statement at the hearing . *** [I]f the court determines that the circumstances and behavior of the applicant from the date of conviction, or from the date of arrest, citation or charge as the case may be, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest, citation or charge record as the case may be, the court shall enter an appropriate order that shall state the original arrest or citation charge and the conviction charge, if any and if different from the original, date of charge, submitting agency and disposition."

(Emphases added.)

Although the statute appears to contemplate a hearing being held—at least if a motion is contested—defendant acknowledges that the statute does not specifically address a situation...