Opinion
Nos. 34913-2-II; 34916-7-II; 34923-0-II; 34926-4-II; 34933-7-II.
June 1, 2007.
Appeals from a judgment of the Superior Court for Grays Harbor County, No. 88-8-00270-1, Gordon Godfrey, J., entered May 1, 2006.
The State appeals the trial court's order sealing Jason Harner's juvenile offense records for convictions of second degree rape and first degree burglary. The State argues that the trial court's order was erroneous because RCW 13.50.050 barred the court from sealing juvenile records for a class A or sex offense. We reverse and remand for rehearing based on evidence required by RCW 13.50.050.
"The court shall not grant any motion to seal records made pursuant to subsection (11) of this section that is filed on or after July 1, 1997, unless it finds that . . . [t]he person has not been convicted of a class A or sex offense." RCW 13.50.050(12)(d).
FACTS
On November 12, 1991, the State charged Jason Harner with second degree rape and first degree burglary and, on May 18, 1992, a juvenile court found him guilty on both counts and sentenced him to supervision by the Division of Juvenile Rehabilitation for a period of 154-193 weeks. On October 31, 2005, Harner filed a motion and declaration to seal records of juvenile offender pursuant to RCW 13.50.050(11), claiming that he "spent 4 consecutive years in the community without committing any offense or crime that has resulted in conviction." Clerk's Papers (CP) (91-8-00281-7) at 6. Finding that he "satisfied the requirements of RCW 13.50.050(11) and (12)," the trial court granted his motion and sealed his juvenile records on May 4, 2006. CP (91-8-00281-7) at 18. The State appeals.
Harner was found guilty of first degree criminal trespass on December 22, 1988. He also pleaded guilty to residential burglary (a class B felony) and third degree theft on March 28, 1991, and to third degree theft and taking a motor vehicle without permission on November 21, 1991. The court sealed the records of all of his juvenile offenses on May 4, 2006. The State, however, does not challenge the court's order to seal the records regarding any offense other than his second degree rape and first degree burglary convictions.
Harner's date of birth is May 29 of either 1976 or 1977.
ANALYSIS
The State contends that the trial court's order sealing Harner's juvenile records for conviction of second degree rape and first degree burglary under RCW 13.50.050 was erroneous. Harner responds that "the record is insufficient for this [c]ourt to determine whether his rights were vested at the time of the amendment of RCW 13.[50].050." Br. of Resp't at 6. We agree with Harner.
We believe counsel mistakenly referred to RCW 13.34.050.
RCW 13.50.050 governs the sealing of juvenile criminal records. Former RCW 13.50.050 provided:
The court shall grant the motion to seal records made pursuant to subsection (10) of this section if it finds that: (a) [t]wo years have elapsed from the later of: (i)
[f]inal discharge of the person from the supervision of any agency charged with supervising juvenile offenders; or (ii) from the entry of a court order relating to the commission of a juvenile offense or a criminal offense.
Former RCW 13.50.50(11)(a) (1992).
In 1997, the legislature amended former RCW 13.50.050(11) as follows: "The court shall grant the motion to seal records made pursuant to subsection (10) of this section if it finds that. . . . [t]he person has not been convicted of a class A or sex offense." Laws of 1997, ch. 338, § 40. "The precipitating event for application of RCW 13.50.050(11) is satisfaction of the statutory conditions, thus, prospective application of the 1997 amendment does not affect those juveniles who have spent two years in the community without reoffending prior to the adoption of the 1997 amendment." State v. T.K., 139 Wn.2d 320, 335, 987 P.2d 63 (1999).
The legislature later amended this provision as set forth in fn. 1. Laws of 2001, ch. 49, § 2.
Here, citing only to its own memorandum filed in response to Harner's motion to seal, the State asserts that Harner "never had a two year period without an additional conviction, prior to July 1, 1997, that would have allowed his right to vest under the former statute." Br. of Appellant at 2-3. The State fails to offer evidence of additional convictions that required the court to apply the 1997 amendment that bars sealing Harner's juvenile records showing convictions for second degree rape, a sex offense, and first degree burglary (a class A offense). Consequently, we requested that both parties supplement the record on appeal with the following information from the trial court record:
1. Date of respondent's final discharge prior to July 1, 1997, from the supervision of any agency charged with supervising juvenile offenders;
2. Date(s) of the entry of any court order relating to respondent's commission of a juvenileoffense or a criminal offense between June 30, 1995, and June 30, 1997;
3. Date(s) of respondent's offenses between June 30, 1995, and June 30, 1997;
4. Copies of respondent's records of juvenile offenses or criminal offenses.
Court of Appeals, Div. II (COA-II) Order to Supplement the Record (Mar.15, 2007) at 1-2.
The parties, however, were unable to provide the information requested.
The State responded, declaring that "[t]he State is unable to provide the supplemental material requested by the Court of Appeals as it is not part of the record of the trial court. The State objects to the Court's attempt to supplement the record by facts that were not part of the original record in this matter." COA-II Appellant's Response to Order to Supplement the Record (April 4, 2007) at 2.
Harner responded that "[a] review of the trial record available to counsel does not indicate the date[s]." COA-II Respondent's Response to Order to Supplement the Record (April 7, 2007) at 2.
Although the State correctly argues there that "[t]he burden was on the respondent to prove to the trial court that he was eligible for the relief he requested," COA-II Appellant's Response to Order to Supplement the Record (April 4, 2007) at 2, the State misperceives our order. The parties were to provide the evidence relied on by the trial court. Because the information was not before the trial court, we cannot determine whether the trial court had adequate evidence to grant the respondent's motion to seal because the record on appeal is devoid of evidence. For instance, the record on appeal does not include clerk's papers that may shed some light on the trial court's basis for granting the motion. Nor does the record include any report of proceedings. Moreover, the State's argument is tenuous in light of its appellate brief argument (citing only to its own trial brief) that Harner was convicted of additional charges in 1995 and 1997 for crimes he committed in 1988, for which the State apparently provided no evidence at trial.
Accordingly, we are unable to determine the basis of the trial court's decision granting Harner's motion to seal. Thus, we reverse the order sealing Harner's criminal record relating to the second degree rape and first degree burglary convictions and remand to the trial court for a new hearing that provides an adequate record for review, if necessary. See State v. Rodriguez, 32 Wn. App. 758, 763, 650 P.2d 225 (1982) (remanding to the trial court for a rehearing because the trial court erred in refusing to resolve essential factual issues).
Reversed and remanded for a new hearing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Van Deren, A.C.J. We concur:
Bridgewater, J. Quinn-Brintnall, J.