On March 19, 2018, the a three-judge appellate panel decided the Union County case of In the Matter of the Expungement of the Criminal Records of E.C. The principal issue before the Court was whether a discharge from probation “without improvement” was a basis to deny an expungement application.
In relevant part, the Court held as follows. As the statute indicates, a defendant who has been discharged from probation, has “satisfied his or her sentence,” so long as he or she has paid all fines imposed. The language of the probation statute suggests that a defendant who has been discharged from probation and has later paid any outstanding fines, has satisfactorily completed probation, even if his or her performance while on probation has not been perfect.
Kollman and LoBasso also support that view. As Kollman held, in construing the early pathway provision, “courts may examine an applicant’s performance while in jail or on probation.” The Court also noted a similar discussion in LoBasso, “contrasting early discharge from probation with a history of probation violations.” From that language, we infer that probation violations are not an absolute bar to applying for expungement. Otherwise, there would be no need for a trial court to consider probation violations as one factor in the public interest calculus, because the petitioner would be statutorily unable to apply in the first place.
We hold that an individual who has been discharged from probation, albeit with an imperfect record, and has paid all outstanding fines, has satisfactorily completed probation within the meaning of the expungement statute. We do not address whether an individual whose probation was revoked, and who was then sentenced to prison for the underlying offense, may apply for expungement after serving the sentence and after the statutory waiting period has expired. That issue is not before us. We note, however, that the expungement statute’s primary policy focus is on the number and nature of the offenses the applicant has committed. Those offenses define who may apply for expungement. The waiting period provisions define when the person may submit the application, under either the early or the ordinary pathway.
The Court’s logic regarding the language of the expungement statute is undeniable. The prosecutor’s office likely objected to the expungement application (and the trial judge likely denied the application) because they figured an appeal was unlikely. This is because appeals are costly and using the public defender’s office is not an option since expungements involve civil petitions.
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