IN THE MATTER OF THE EXPUNGEMENT OF MICHAEL JACOBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3885-02T40664-04T1

IN THE MATTER OF

THE EXPUNGEMENT

OF MICHAEL JACOBY

 
 

Argued November 2, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, EX-112-03.

Joseph R. Donahue argued the cause for appellant (Brickfield & Donahue, attorneys; Mr. Donahue, of

counsel and on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the

cause for respondent State of New Jersey (Robert D. Bernardi, Burlington County Prosecutor, attorney;

Carol Lee Tang, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Michael Jacoby appeals from the denial of his petition for expungement, N.J.S.A. 2C:52-1 to -32. We affirm.

In July of 1976, a Burlington County Grand Jury returned four indictments, each charging Jacoby with distribution or possession of a controlled dangerous substance: Indictment No. I-2186-75 charged one count of distribution of phencyclidine, N.J.S.A. 24:21-19(A)(1), and one count of possession of phencyclidine, N.J.S.A. 24:21-20(A)(1); Indictment No. I-2187-75 charged one count of distribution of marijuana, N.J.S.A. 24:21-19(A)(1); Indictment No. I-2188-75 charged one count of distribution of phencyclidine, N.J.S.A. 24:21-19(A)(1), and one count of possession of phencyclidine, N.J.S.A. 24:21-20(A)(1); and Indictment No. I-1923-75 charged one count of distribution of marijuana, N.J.S.A. 24:21-19(A)(1), and one count of possession of marijuana, N.J.S.A. 24:21-20(A)(4). The crimes underlying Indictment Nos. I-2186-75 and I-2187-75 were alleged to have been committed on June 30, 1976; the crimes underlying Indictment No. I-2188-75 on June 28, 1976; and the crimes underlying Indictment No. I-1923-75 on May 30, 1976. The first of these incidents occurred on January 10, 1977, two months after Jacoby's eighteenth birthday and the last three months after he turned eighteen. Jacoby pled guilty to count one of each indictment. On April 6, 1977, he was sentenced to the Youth Reception and Correction Center in Yardville for an indeterminate period, which was suspended, three years probation, and a $1000 fine. The sentencing judge provided the following statement of reasons:

This 18 year old was charged with four separate indictments. The indictments covered a period from May 30, 1976 until June 30, 1976. One indictment charged him with the distribution of marijuana; the second indictment charged him with the distribution of phencyclidine; the third indictment charged him with the distribution of marijuana and the fourth indictment charged him with the distribution of phencyclidine. The amount of the drugs involved was not significant. He entered a plea of guilty to each of the charges on a plea bargain that if he was incarcerated sentences would be concurrent to the Burlington County Jail and he would be given Work Release if qualified.

This young man graduated from high school in June of 1976 and is gainfully employed. He has no prior record either as a juvenile or as an adult. All of the offenses occurred within a one month period and the amount of controlled dangerous substances involved were not significant. Based upon all of the foregoing the court felt that incarceration was not warranted and therefore imposed a sentence to the Youth Reception and Correction Center in Yardville for an indeterminate period which said sentence was suspended. It further placed him on probation for a period of 3 years and imposed a fine of $1,000 payable over the period of probation.

On June 10, 2003, Jacoby filed a Verified Petition for Expungement. On September 11, 2003, the Burlington County Prosecutor's Office sent a letter to Jacoby objecting to his petition for expungement and requesting further information regarding a July 31, 1976 charge from Edgewater Park Township that was not mentioned in the original petition. On February 4, 2004, Jacoby filed an Amended Verified Petition for Expungement asserting that the Edgewater Park charges had been returned to municipal court and later dismissed. The Prosecutor's Office objected to the amended petition.

On June 14, 2004, Judge Schlosser denied the amended petition, and signed an order memorializing that decision on July 2, 2004. On July 26, 2004, Jacoby filed a motion for reconsideration. On August 24, 2004, Judge Schlosser filed a letter opinion denying the motion. On October 15, 2004, the judge entered an order denying Jacoby's motion for reconsideration.

According to information provided to the court, Jacoby has been married for twenty years, has three children, has served as a foster parent, and regularly volunteers for various charities. In addition, he works as a director for the public sector practice of a company that provides IT consulting and management services to federal, state, and local entities, including the FBI, Center for Disease Control, General Services Administration, and numerous lottery commissions. Jacoby expects to make partner at his company within the next year, a process that includes extensive background investigations. He explained to the court that he is seeking expungement now because he strongly believes that he will lose his job with the company when it uncovers his criminal record during the background check, causing financial hardship to his family. He also indicated that a denial of his petition for expungement would likely prevent him from any future employment in his field. Jacoby stated that it would be "unjust" to deny his expungement petition because the resulting loss of employment would inflict punishment on both him and his family.

The trial court granted expungement of the dismissed Edgewater Park Township charges, but denied Jacoby's petition for expungement of the drug convictions on the basis that, although his crimes were expungeable in 1976, they are not expungeable under current law, and the statute that controls is the statute in effect at the time of the expungement application. In his motion for reconsideration, Jacoby argued that the court overlooked the fact that his two marijuana convictions are expungeable under current law because they were for distributions under twenty-five grams. Jacoby further contended that the trial court erred in its application of State v. T.P.M., 189 N.J. Super. 360 (App. Div. 1983), to the facts of this case and in not considering his convictions in light of N.J.S.A. 2A:164-24, the law in effect at the time he pled guilty to the charges.

In denying Jacoby's motion for reconsideration, Judge Schlosser's letter opinion reasoned that, although a marijuana distribution conviction of less than twenty-five grams is eligible for expungement, an indictable conviction cannot be expunged if the defendant was convicted of any prior or subsequent crime. N.J.S.A. 2C:52-2a. Jacoby's separate convictions for distribution of phencyclidine therefore bar the eligibility of his marijuana convictions. Furthermore, Judge Schlosser posited that Jacoby's ex post facto argument is incorrect because the eligibility for expungement is determined by the statute in effect when the application is filed.

I

Ex Post Facto

The current law regarding expungement, N.J.S.A. 2C:52-2, provides, in pertinent part:

a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime . . . may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a verified petition . . . praying that such conviction and all records and information pertaining thereto be expunged.

. . . .

c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:

(1) Marijuana, where the total quantity

sold, distributed, or possessed

with intent to sell was 25 grams or less, or

(2) Hashish, where the total quantity

sold, distributed, or possessed with intent to sell was five grams or less.

When Jacoby pled guilty to the drug distribution charges, the law in effect at that time, N.J.S.A. 2A:164-24, did not exempt convictions for the sale or distribution of a controlled dangerous substance from expungement eligibility. However, the current expungement statute, which became effective September 1, 1979, retroactively applies to all arrests and convictions that occurred prior to the effective date of the act. N.J.S.A. 2C:52-25.

We have noted that the language of N.J.S.A. 2C:52-2c is "clear and unambiguous." State v. P.L., 369 N.J. Super. 291, 293 (App. Div. 2004). As a result, we cannot alter the plain meaning of the statute and must interpret its language as written. Id. at 294. We cannot attempt to rewrite the law "simply because the legislation does not comport with the court's idea of how the statute should read." Ibid. (quoting Rollins Leasing Corp. v. Dir., Div. of Taxation, 279 N.J. Super. 540, 551 (App. Div. 1994)). Thus, N.J.S.A. 2C:52-2c must be literally applied to Jacoby unless application of the statute to his case would be unconstitutional.

Jacoby argues that the application of N.J.S.A. 2C:52-1 to his case violates the constitutional prohibition against ex post facto legislation. We disagree.

Both the Federal and State Constitutions prohibit the enactment of ex post facto laws. U.S. Const., art. I, 10, cl. 1; N.J. Const. art. IV, 7, para. 3. In order for a criminal or penal law to be ex post facto, the law must be retrospective and must serve to disadvantage the offender. Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981). More specifically, in order to violate the Ex Post Facto Clause, a statute must either: (1) punish as a crime an act that was innocent when done; (2) make the punishment of a crime more burdensome after its commission; or (3) deprive a defendant of a defense that was available when the crime was committed. State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-69, 70 L. Ed. 216, 217 (1925)). The purpose of the Ex Post Facto Clause is to guarantee that criminal laws provide "fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Muhammad, supra, 145 N.J. at 56 (citing Weaver, supra, 450 U.S. at 28-29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23).

In T.P.M., supra, we specifically considered whether retroactive application of the expungement law constitutes an ex post facto violation. In T.P.M., the defendant had pled guilty to two counts of possession of a controlled dangerous substance and sought expungement of these records nine-and-one-half years later when the law had changed to preclude his eligibility for expungement. 189 N.J. Super. at 363-64. He had no criminal record prior to the drug sales, and after the convictions had "led an apparently exemplary life, save for a 1974 municipal court conviction for use of loud and offensive language." Id. at 363. At the time he applied for expungement, the defendant was 31 years old, married, and a father. He had supported his family for ten years as a house painter and car salesman, and his application for expungement was motivated by his plan to obtain a real estate agent's license in order to join his father's agency. Ibid.

We recognized that applying the expungement statute to T.P.M. may operate to deprive him of the opportunity to pursue a career and that exclusion from a profession for past acts has been considered a sufficient deprivation to constitute an ex post facto law. Id. at 367 (citing Ex parte Garland, 71 U.S. 333, 377, 18 L. Ed. 366, 370 (1867)). However, we distinguished the case from Garland, in which the civil deprivation was directly established by the statute in question, by noting that any injury sustained by the defendant would be "speculative and indirect." Id. at 367. We specifically concluded that the expungement statute is remedial, not punitive, in nature, as it does not prolong defendant's punishment. Id. at 367-68. In so holding, we reasoned that a petitioner's interest in expungement is an interest in "obtaining a potential remedy, not retaining something which had already inured to his benefit," and that "the existence of a criminal record is simply a fact of life, not part of the sentence and punishment." Id. at 368. Accordingly, we declined to find that retroactive application of the expungement statute constituted an ex post facto violation. Ibid.

Other jurisdictions addressing the same issue are nearly unanimous in concluding that retroactive application of an expungement statute does not violate the Ex Post Facto Clause. See, e.g., In Re: The Matter of Scott Dyer, 163 S.W.3d 915, 919 (Mo. 2005) (holding statute retroactively preventing expungement of criminal record not to be ex post facto violation even though arrest record caused petitioner to lose job because petitioner "never had a substantive or vested right in expungement of his arrest record as is required for a statute to be ex post facto"); Toia v. Illinois, 776 N.E.2d 599 (Ill. App. Ct. 2002) (finding retroactive application of amendment to expungement law does not violate Ex Post Facto Clause because intent of legislature in passing act was nonpunitive in nature and effect of act is not so punitive as to defeat legislature's intent); California v. Acuna, 77 Cal. App. 4th 1056, 1060 (Cal. Ct. App. 2000) (holding defendant who was denied expungement by amendment enacted after he pled guilty was not subjected to ex post facto law because law preventing expungement was "not punitive in intent, nature or effect"); Michigan v. Link, 570 N.W.2d 297, 299 (Mich. Ct. App. 1997) (concluding that amendment to expungement statute may be applied retroactively because statute is remedial and "does not create new or destroy existing rights"); Florida v. Greenberg, 564 So. 2d 1176, 1177 (Fla. Dist. Ct. App. 1990) (concluding retroactive application of expungement law is not ex post facto because expungement statute is remedial and does not constitute punishment), rev. denied, 576 So. 2d 287 (Fla. 1991).

In State v. Anderson, 744 P.2d 143 (Kan. Ct. App. 1987), the Kansas Court of Appeals reached the opposite result. In that case, the defendant had been convicted of one count of aggravated indecent solicitation of a child. Ibid. At the time of his conviction, he was eligible to apply for expungement after five years, but a subsequent amendment to the statute eliminated his eligibility. Id. at 144-45. The court explained that the Kansas Supreme Court in Kansas v. Miller, 520 P.2d 1248 (Kan. 1974), had suggested that the mere existence of a criminal record is punishment. Specifically, the Miller court had stated:

Over the past 50 years American correctional law, turning away from the vengeance concept, has focused increasingly on the rehabilitation of the individual offender and the development of means and practices appropriate to that end. It has become common knowledge today that a criminal record is a serious handicap which works against the rehabilitation of the ex-offender. The consequences of a criminal conviction include not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society. Although the criminal offender has paid his debt imposed by law, society stigmatizes him with the ex-convict label.

[Anderson, supra, 744 P.2d at 145 (quoting Miller, supra, 520 P. 2d at 1252).]

In concluding that retroactively applying the expungement statute constituted an ex post facto violation, the Anderson court reasoned that denying defendant the opportunity to expunge his criminal record disadvantaged him and constituted a punishment. Anderson, supra, 744 P.2d at 145.

However, our Supreme Court is not likely to adopt the Anderson conclusion that the existence of a criminal record constitutes punishment in light of its decision in Doe v. Poritz, 142 N.J. 1, 75 (1995), in which the Court held that the mandatory registration of convicted sex offenders with law enforcement authorities and the notice of the presence of such offenders in the community does not constitute punishment for ex post facto purposes. More specifically, the Court held that when the purpose of a statute is remedial, the fact that some punitive impact may result does not transform the law "into 'punishment' if that impact is an inevitable consequence of the regulatory provision. . . ." Ibid. This reasoning, taken in conjunction with the T.P.M. holding that the expungement law is remedial in nature, compels the conclusion that even if Jacoby's criminal record has some punitive impact, it does not in fact constitute punishment. See T.P.M., supra, 189 N.J. Super. at 367-8.

As a result, we conclude that Jacoby's ex post facto argument cannot prevail.

II

Due Process

Jacoby argues that retroactively applying N.J.S.A. 2C:52-2 to his case, thereby barring the expungement of his convictions, constitutes a violation of due process. Although this presents a closer question, we disagree.

Legislation that readjusts rights and burdens is not unconstitutional merely because "it upsets otherwise settled expectations or imposes a new duty or liability on past acts." In re Kaplan, 178 N.J. Super. 487, 495 (App. Div. 1981) (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16, 96 S. Ct. 2882, 2893, 49 L. Ed. 2d 752, 767 (1976)). The retrospective application of a law may violate due process if the result would be particularly "harsh and oppressive." Ibid. (quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 17, 97 S. Ct. 1505, 1515, 52 L. Ed. 2d 92, 106 (1977)). Thus, even if retroactive application of a law does not constitute a per se violation of due process, retroactively applying the statute in a particular case might be so "harsh and oppressive" that it violates notions of fundamental fairness and amounts to a due process violation. See id. at 496.

In T.P.M., we also considered whether retroactive application of the expungement statute violates due process, and declined to find such a violation: "We conclude that the Legislature had a right to overhaul the statutory expungement scheme in 1979 and make the new law retroactive in the interest of uniformity and efficiency without treading on the Due Process or Ex Post Facto Clauses of the Federal Constitution." T.P.M., supra, 189 N.J. Super. at 364. We cited several United States Supreme Court cases finding that the possibility of parole does not implicate a constitutionally protected right and explained that a statutory expectation of expungement likewise does not constitute a protected liberty interest. Id. at 365 (citing, e.g., Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex, 442 U.S., 1, 14, 99 S. Ct. 2100, 2107, 60 L. Ed. 2d 668, 680 (1979)). As such, we concluded that expungement laws do not give rise to inherent due process rights. Ibid.

Moreover, we found that applying the expungement statute retroactively was not so "harsh and oppressive" as to violate due process. Ibid. We reasoned that the defendant had not applied for or been denied a real estate license, and that his conviction did not automatically disqualify him for a real estate agent's license under the applicable licensing statute. Ibid. Thus, the court found that any permanent prejudice to defendant was speculative and "certainly not grave enough to compel striking down an act of the Legislature." Id. at 366. Furthermore, the court noted that defendant's "predicament" was "largely self-induced" because if he had applied for expungement when he first became eligible in 1974, his conviction would have been expungeable. Ibid.

Jacoby's case is distinguishable from T.P.M. in that his situation cannot be said to have been self-induced. Jacoby would have first been eligible for an expungement ten years after the date his probation ended, which was well-after N.J.S.A. 2C:52-2 took effect in 1979. Nonetheless, under the reasoning of T.P.M., any permanent prejudice to Jacoby is speculative because he has not yet been denied partnership or released from his employment due to his criminal record, and there is no statute mandating such a result. Thus, the prejudice claimed by Jacoby cannot be viewed as a certainty at this time. However, it would be manifestly unfair to require Jacoby to suffer the penalties flowing from his prior convictions in order to raise a due process argument. Unlike denial of a license, it is not likely that the consequences to Jacoby would be reversible even if his conviction were later expunged. Jacoby believes it is a "virtual certainty" that he will lose his current employment and will no longer be able to work in his field if he is denied an expungement, clearly a harsher result than that in T.P.M. where the petitioner claimed that denial of an expungement would prevent him from entering a new area of employment. Nevertheless, given our analysis of the issue in T.P.M., we conclude that Jacoby's due process rights have not been violated in this case.

Other jurisdictions considering this issue have reached a similar result. For example, in Ohio v. Davenport, 686 N.E.2d 531, 534 (Ohio Ct. App. 1996), the Court of Appeals of Ohio held that the retroactive application of an expungement statute rendering the defendant ineligible did not violate due process even though the defendant claimed he had accepted his plea bargain with the expectation that he would be able to petition for expungement: "[t]he mere fact that appellant chose to accept the state's plea bargain based upon some unilateral hope that he might be able to expunge his convictions in the future does not render expungement a fundamental right protected by due process. . . ." Similarly, in California v. Acuna, supra, 77 Cal. App. 4th at 1060, the California Court of Appeals held that a retroactive ban on expungement did not violate due process because the defendant had "fair warning" that his act was punishable as a crime and had fair warning of what the punishment would entail, which "is all due process requires." The court explained that a ban on expungement does not constitute punishment, and due process does not require that a defendant have prior warning of every possible consequence of a conviction. Ibid.

While Jacoby's situation generates considerable sympathy, we cannot overturn settled constitutional doctrine in order to achieve what may seem to be a fair result in this one case.

 
As a result of our disposition, we have no need to address the issue raised in Jacoby's reconsideration motion, that his convictions for distribution of less than twenty-five grams of marijuana were expungeable even under present law. In his letter opinion, Judge Schlosser rejected this argument on the basis that an indictable conviction cannot be expunged under N.J.S.A. 2C:52-2a if the defendant was convicted of any prior or subsequent crime. The judge reasoned that, although marijuana distribution convictions of less than twenty-five grams are expungeable, Jacoby's separate convictions for phencyclidine distribution bar the expungement of the marijuana convictions. Although the State discussed this issue in its reply brief, Jacoby did not raise it and we, therefore, have no reason to address it.

Affirmed.

Both N.J.S.A. 2C:52-2 and N.J.S.A. 2A:164-24, the statute in effect when Jacoby pled guilty, require a petitioner to wait ten years from the date of conviction or from the date of completion of a term of imprisonment or probation or parole, before petitioning the court for an expungement. Jacoby was sentenced to three years probation in April of 1977. Thus, he would have first been eligible for an expungement in April of 1990. Alternatively, Jacoby notes that an expungement statute for young offenders in effect at the time of his conviction, N.J.S.A. 24:21-28, would have allowed for an expungement six months after the expiration of a term of probation. Even then, Jacoby would not have been eligible for an expungement until October of 1980, after N.J.S.A. 2C:52-2 had taken effect.

(continued)

(continued)

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A-0664-04T1

December 9, 2005