Opinion
No. 54199-4-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 00-1-00249-1. Judgment or order under review. Date filed: 04/09/2004. Judge signing: Hon. Michael E Rickert.
Counsel for Appellant(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.
Counsel for Respondent(s), K. Garl Long, Attorney At Law, 1215 S 2nd St Ste a, Mount Vernon, WA 98273-4801.
Scott Freshman pleaded guilty to one count of attempted possession of depictions of minors engaged in sexually explicit conduct, a gross misdemeanor. After completing his sentence, Freshman discovered that a state computer database listed his conviction as a felony. In order to correct the problem, the trial court vacated Freshman's conviction. We reverse the order vacating Freshman's conviction and remand for further proceedings.
In June 2000, Freshman was charged with six counts of possessing depictions of minors engaged in sexually explicit conduct, a Class C felony. See RCW 9.68A.070. On January 4, 2001, he entered an Alford guilty plea to one count of attempted possession of depictions of minors engaged in sexually explicit conduct, a gross misdemeanor. See RCW 9.68.070; 9A.28.020(3)(d). Freshman completed his sentence, and the trial court terminated probation in November 2002.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
On March 5, 2004, Freshman moved to vacate his conviction, alleging that state computer records erroneously designated his offense as a felony, rather than a gross misdemeanor. Freshman asserted that as a result of the error, he was having difficulty finding rental housing, had been denied the right to vote, and was unable to participate in school activities with his children.
In support of his motion, Freshman attached a declaration from Nancy Scott, the Skagit County Superior Court Clerk. Ms. Scott stated that she supervised the entry of Skagit County criminal convictions into the Superior Court Management Information System (SCOMIS), the statewide computer system managed by the Administrative Office of the Courts. She acknowledged that SCOMIS erroneously displayed Freshman's conviction as a felony, but explained the problem was a consequence of limitations in the SCOMIS system itself:
4. The SCOMIS computer system provides designated fields for the entry of conviction information. SCOMIS users are required to use these fields. Information generated from an analysis of these fields is then processed and made available to law enforcement and the public.
5. The SCOMIS system requires that the RCW number for the substantive charge, in this case the possession charge, be recorded in the first data field under charges. If the statute describes a felony then the system records the charge as a felony. In this case, the conviction, although it is a gross misdemeanor, is recorded as a class C felony based on the RCW number. Although the attempt statute is placed in a second field the SCOMIS system states that the defendant was convicted of a Class C felony unless the second data field is considered. Information conveyed to outside agencies shows a felony conviction. There is no know way within the SCOMIS system to show a misdemeanor rather than a felony in the first data field.
6. The SCOMIS system is relied on for voter registration, jury service eligibility, and criminal history information. Reports generated from the SCOMIS state that Mr. Freshman was convicted of a felony offense: Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct.
Clerk's Papers, at 36-37.
Freshman argued that because there appeared to be no way to correct the problem, the only effective remedy would be vacation of his conviction. He also suggested that the trial court could vacate the conviction because there was an inadequate factual basis to support his Alford plea. The State did not file a response.
Following a hearing on March 12, 2004, the trial court continued the matter until April 9, 2004, `to allow the State to fix the system.' The court indicated that the case would be dismissed if the error could not be rectified.
At a hearing on April 9, 2004, the deputy prosecutor did not dispute that Freshman's conviction record erroneously reflected a felony conviction, but maintained the prosecutor's office had no authority to modify the conviction records of the Washington State Patrol and therefore could not correct the problem. She suggested that Freshman needed to file an action against the State or the Washington State Patrol in order to vest the trial court with jurisdiction over the matter.
The trial judge stated that he had talked to Ms. Scott and learned that `the system is broken and there is no immediate fix for it.' The trial court then applied the `stomach test' and directed that Freshman's conviction be vacated and the case dismissed with prejudice:
Here is the law as I see it, right now at quarter to ten April 9th, 2004, neither side, this is for the Court of Appeals, neither side have provided me with authority or briefs to do anything except tell me I can do it and I can't do it. When posed with that question, my rule is the stomach test. Does it make sense or not. And it makes sense to dismiss this because the State can't get it figured out. So the stomach test says we have to fix it, regardless of authority or anything else. So based on the stomach test and does it make common sense, I think I'll sign dismissal. That's pretty good authority.
Report of Proceedings (April 9, 2004), at 5-6. The court also concluded that the inaccurate report of the conviction to election officials, employers, landlords, and school officials constituted `unlawful restraint on the defendant.'
During the hearing, the parties did not address Freshman's claim that his guilty plea lacked a sufficient factual basis. Nor did the trial court mention this issue in its oral decision. But the written order vacating Freshman's conviction recites that the trial court found there was inadequate factual support for the plea. The State now appeals.
The State first contends that the trial court erred in vacating Freshman's conviction because his guilty plea was not supported by an adequate factual basis. The State argues that this challenge was time-barred. We agree.
Freshman's challenge to the factual basis of his guilty plea constituted a collateral attack on the underlying judgment and sentence. Generally, under RCW 10.73.090(1), courts may not consider such collateral attacks if they are filed more than one year after the conviction becomes final. Freshman's claims under CrR 7.8 are also subject to the time limits of RCW 10.73.090. CrR 7.8(b).
Freshman's conviction became final in January 2001. His collateral attack is therefore time-barred unless he can demonstrate that his conviction is invalid on its face or subject to one of the exceptions to the one-year time bar enumerated in RCW 10.73.100. See State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653 (2001). Freshman makes no attempt to demonstrate that his conviction was invalid on its face. See State v. Robinson, 104 Wn. App. at 664. And the existence of an admittedly inaccurate computer record of Freshman's conviction — created and maintained after the entry of judgment — does not implicate the validity of the underlying conviction or any of the exceptions enumerated in RCW 10.73.100. Accordingly, Freshman's collateral challenge was time-barred, and the trial court erred in vacating Freshman's conviction because of the alleged inadequate factual basis. The order vacating Freshman's conviction is reversed, and the case remanded for further proceedings.
Even if Freshman's collateral attack were not time-barred, it would fail. Freshman's arguments, both in his motion to vacate and in his appellate brief, are generally irrelevant because they focus on evidence needed to prove the completed offense. Freshman pleaded guilty to an attempt to possess depictions of minors engaged in sexually explicit conduct. See State v. Luther, Wn. App., 105 P.3d 56 (2005).
It is apparent from the record that the trial court in this case was not seriously concerned with the validity of the underlying conviction. Rather, the court sought to expunge Freshman's criminal record in order to correct the erroneous SCOMIS entry. The trial court commented that a convicted defendant should not be forced to `bring an action against a big state agency that's going to jerk you around' in order to correct the erroneous entry.
But we have discovered no authority that would permit the trial court to vacate an otherwise valid conviction merely to correct an electronic database entry that mischaracterizes the seriousness of the conviction. Moreover, in so doing, the trial court effectively circumvented clear authority and a strong legislative intent to limit a court's ability to expunge or modify a defendant's criminal record.
Because it is related to the punishment and reformation of offenders, the disposition of criminal records is a function `uniquely within the legislature's domain.' State v. Gilkinson, 57 Wn. App. 861, 866, 790 P.2d 1247 (1990). Consequently, absent a specific statutory grant of authority, a court lacks authority to order expungement of a defendant's criminal record. State v. Gilkinson, 57 Wn. App. at 866. Neither below nor on appeal has Freshman identified any statutory authority that would permit the trial court to expunge his criminal record. See also State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155 (2001) (under certain circumstances, RCW 9.95.240 and RCW 9.94A.230 authorize courts to vacate records of convictions).
Moreover, the Legislature has expressed its intent that the conviction record of a person convicted of attempted possession of depictions of minors engaged in sexually explicit conduct should not be vacated. RCW 9.96.060 provides that persons convicted of misdemeanors and gross misdemeanors may seek vacation of the record of conviction under certain circumstances. But RCW 9.96.060(2)(d) expressly excludes vacation of the record of attempt offenses under RCW 9.68A.
Because the factual record in this case was not sufficiently developed, we cannot advise Freshman as to the best method for seeking correction of the erroneous conviction information. Freshman's motion to vacate was based solely on the existence of the erroneous SCOMIS entry. Although Ms. Scott stated that other agencies rely on the SCOMIS entries for conviction information, Freshman has not alleged that the Washington State Patrol or any other specific criminal justice agencies have been disseminating erroneous information or, if so, that he has made an effort to correct such information. Specific statutory procedures exist for correcting inaccurate conviction information maintained by criminal justice agencies. See RCW 10.97.080; WAC 446-20-010 et seq. RCW 43.43.730(1) provides that an individual may appeal the Washington State Patrol's refusal to correct inaccurate information to the superior court for a de novo hearing. See State v. Breazeale, 144 Wn.2d at 843.
`(1) Any individual shall have the right to inspect criminal offender record information, or dependency record information, on file with the section which refers to him. If an individual believes such information to be inaccurate or incomplete, he may request the section to purge, modify or supplement it and to advise such persons or agencies who have received his record and whom the individual designates to modify it accordingly. Should the section decline to so act, or should the individual believe the section's decision to be otherwise unsatisfactory, the individual may appeal such decision to the superior court in the county in which he is resident, or the county from which the disputed record emanated or Thurston county. The court shall in such case conduct a de novo hearing, and may order such relief as it finds to be just and equitable.'
Nor is the record sufficient to support the trial court's apparent determination that `the system is broken and there is no immediate fix for it.' Report of Proceedings (April 9, 2004), at 4. In her declaration, Ms. Scott states that `there is no known way within the SCOMIS system to show a misdemeanor rather than a felony in the first data field.' But this assertion begs the question of what steps Skagit County has undertaken to correct the admittedly erroneous conviction information that it disseminates. The problem in this case has probably affected other persons convicted of an attempted Class C felony, and there is no indication in the record how the County has previously dealt with the issue.
Finally, on remand, the parties may wish to consider whether the sealing of Freshman's court records may be appropriate under the circumstances of this case. A court has inherent authority to seal the court record if there are `compelling circumstances,' even without express statutory authority. State v. Noel, 101 Wn. App. 623, 628, 5 P.3d 747 (2000) (trial court lacked authority to order WSP to stop releasing records of defendant's misdemeanor conviction but had authority to prevent disclosure by sealing records); GR 15(c)(1)(B).
Reversed and remanded.
SCHINDLER and AGID, JJ.