Opinion
112,633.
07-17-2015
STATE of Kansas, Appellee, v. Tinisha N. TURNER, Appellant.
Tinisha Turner, appellant pro se. Natalie Chalmers, assistant solicitor general, for appellee.
Tinisha Turner, appellant pro se.
Natalie Chalmers, assistant solicitor general, for appellee.
Before LEBEN, P.J., Schroeder and Gardner, JJ.
MEMORANDUM OPINION
PER CURIAM.
Tinisha N. Turner appeals the dismissal of her petition for expungement. Here, the district court denied her petition, finding the State had presented sufficient evidence to deny her expungement when, in fact, the State presented no evidence for the district court to base its decision upon. The district court, therefore, abused its discretion by basing its decision on an error of fact. We reverse and remand for further proceeding on Turner's petition for expungement.
Facts
Turner pled guilty to one count of failure to purchase a tax stamp for an illegal substance. Turner was sentenced to a 6–month term of imprisonment with 12 months' postrelease supervision. Turner was then granted probation, which was later revoked. Turner satisfied her sentence and was released from all supervision.
Almost 11 years later, Turner filed a pro se petition to expunge her conviction. On June 24, 2014, the district court held a hearing on the petition. Turner's expungement petition alleged that she had not been convicted of a felony within the past 2 years, had no felony charges pending against her, and had been fully discharged from her tax-stamp sentence in 2004. Additionally, when the district judge asked her why she believed her conviction should be expunged Turner stated, “I just would like to say that I've become a productive member of society. I've been my own business owner since 2009 and ... I paid the fines that were due on this case.”
In response, the prosecutor requested that the matter be set for an evidentiary hearing because it appeared there might be more recent charges filed against Turner and the “amounts due in this case ha[d] been turned over to collections[, and] [according to the Triple I[,] [Turner] ha[d] been arrested ... for a misdemeanor in 2005 and 2006 for three offenses and then on October 29 of 2012 for—it appear[ed] ... a felony.”
Turner responded that she had receipts, which proved that she paid off her fines, and although she acknowledged that she “did have a child endangerment in 2005,” she maintained that the remainder of the State's information regarding her alleged criminal history was incorrect because she had not had any charges filed against her since 2007.
Accordingly, the district judge scheduled an evidentiary hearing for July 15, 2014, and he informed Turner that he was not denying her petition for expungement, stating, “I'm not making a decision until we hear some more evidence.”
Turner subsequently moved for a continuance of the evidentiary hearing until August 26, 2014, because she “live[d] 3 hours away, and need[ed] more time to finance [the] trip,” and the district court granted her request. Turner, however, did not appear for the hearing on August 26. In response to Turner's absence, the prosecutor explained:
“I have not heard from her after the last continuance on July 15th. She contacted our office and tried to argue with one of our staff about the status of a legal document that we had in our possession. I believe she ended up hanging up on them and that is the last that I've heard from them.”
The district judge subsequently determined it was appropriate to deny Turner's petition for expungement and provided the following explanation:
“Well, I think the motion for expungement in these two cases is denied for the reason that I think the State presented some evidence that she had had additional charges brought against her within recent years and—which she failed to set out in her motion. So those motions are denied and we'll get these off the docket.”
Analysis
Did the district court abuse its discretion when it denied Turner's petition for expungement?
Turner contends that the district court erred when it denied her petition for expungement because she has completed all the requirements for an expungement and the State failed to present sufficient evidence to prove otherwise.
The expungement statute, K.S.A.2014 Supp. 21–6614, provided that Turner could obtain an expungement if she had satisfied the sentence imposed more than 3 years ago, she had not been convicted of a felony in the past 2 years, no felony proceeding was presently pending or being instituted, her circumstances and behavior justified an expungement, and expungement would be consistent with the public welfare. K.S.A.2014 Supp. 21–6614(a), (h). Given these factors, the decision whether to grant a petition for expungement is an exercise of judicial discretion. State v. Gamble, 20 Kan.App.2d 684, 685, 891 P.2d 472, rev. denied 257 Kan. 1094 (1995). Accordingly, the standard of review of a denial of a petition for expungement of a conviction is abuse of discretion. State v. Sandstrom, 273 Kan. 558, 561, 44 P.3d 434 (2002). A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court; (2) guided by an erroneous legal conclusion; or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Here, Turner's petition alleged facts that, if true, would have authorized the district court to grant expungement, but the district court denied Turner's petition based upon an error of fact. As explained above, the district judge determined it was appropriate to deny Turner's petition because he thought the State presented some evidence that she had recently had more charges filed against her. The State, however, never actually presented such evidence. Instead, the State merely indicated that it believed Turner had a more extensive criminal history than she had disclosed in her petition.
The State appears to recognize that the district court's decision cannot be upheld based on the reason given by the district court, but the State asks us to affirm the district court's result as correct anyway because the court could have dismissed the petition based on Turner's failure to appear at the August 26, 2014, hearing. We decline to do so on the record we find here. Turner's petition alleged facts that, if true, would authorize expungement (at the district court's discretion). From our record, we have no evidence that any of the factual predicates to expungement are not present. In this circumstance, we conclude that the proper course is to return this case to the district court for further proceedings that will allow the district court to consider the proper exercise of its discretion under the expungement statute.
Conclusion
The district court abused its discretion when it dismissed Turner's petition for expungement because it premised its decision upon an error of fact. The district court never held an evidentiary hearing in this case upon which it could base the denial of Turner's petition to expunge her conviction. We reverse and remand for an evidentiary hearing on Turner's petition.
Reversed and remanded with directions.