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Brief on Expungement of Adult Convictions When Client Also Has Juvenile Adjudications (John Doe)

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S T A T E O F M I C H I G A N


IN THE CIRCUIT COURT FOR THE COUNTY OF KENT
180 Ottawa Ave., NW
Grand Rapids, Michigan 49503



The State of Michigan,

Plaintiff,

v.

John Doe,

Defendant. Hon. James Robert Redford


Case No. ****


BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO SET ASIDE CONVICTION



Kent County Prosecutor's Office
82 Ionia, NW
Grand Rapids, MI 49503
(616) 336-3577


WESTERN MICHIGAN LEGAL SERVICES
By: Miriam J. Aukerman (P63165)
Attorneys for the Defendant
89 Ionia Avenue, N.W., Suite 400
Grand Rapids, Michigan 49503
(616) 774-0672, Ext. 114



NOW COMES THE PETITIONER, and submits this brief in support of his motion to set aside his conviction.


I. Mr. Doe is Eligible for an Expungement as He has Only One Conviction


Under MCL 780.621(1), Aa person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction. Because the report filed by the Department of State Police erroneously indicates that Mr. Doe has more than one conviction, the petitioner now files this brief to clarify that he is eligible for an expungement.


Mr. Doe’s only conviction was for retail fraud, in violation of MCL 750.356C. This conviction B for which Mr. Doe was sentenced to time served B occurred on July 13, 1994. Thus, the conviction is more than five years old, as required by the expungement statute. See MCL 780.621(3). The underlying offense conduct, which occurred on May 3, 1994, involved an incident where Mr. Doe, who was intoxicated, walked out of a Meijers store without paying for an item of merchandise. At the time Mr. Doe was eighteen years old.


Although Mr. Doe has only one conviction, he does have a number of juvenile adjudications. Between October 11, 1990 and October 17, 1990, Mr. Doe was involved in three joy-riding incidents, resulting in three juvenile adjudications for unlawful driving away, in violation of MCL 750.413. At the time, Mr. Doe was fifteen years old. Mr. Doe was also involved in an incident that resulted in a juvenile adjudication for breaking and entering an occupied dwelling. The dwelling he entered was a garage, from which he removed a car. At the time Mr. Doe was living in foster care because his mother was unable to care for him adequately and his father was dead. Mr. Doe was very unhappy in foster care, so he hotwired the car in an effort to get back to the home he missed so much. At the time, Mr. Doe was fifteen years old.


II. A Juvenile Adjudication is Not a Conviction, and thus Does not Affect the One Conviction Requirement for an Expungement


Mr. Doe anticipates that the government will argue that he is ineligible for an expungement based on the fact that he has several juvenile adjudications, in addition to his one conviction. This argument is without merit, as an analysis of the statutory scheme makes clear.


First, the language of the statute, MCL 780.621, makes clear that the Aone offense@ require¬ment applies to convictions. The statute repeatedly uses the terms conviction, convicted, and convicting. Specifically the statute states:

(1) Except as provided in subsection (2) a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.

(2) A person shall not apply to have set aside, and a judge shall not set aside, a conviction for a felony for which the maximum punishment is life imprisonment . . . , a conviction for a violation of section 520c, 520d, or 520g of the Michigan penal code . . ., or a conviction for a traffic offense.

(3) An application shall not be filed until the expiration of 5 years following imposition of the sentence for the conviction that the applicant seeks to set aside or 5 years following completion of any terms of imprisonment for the conviction', whichever occurs later . . . (Emphasis added.)


The legislature provided very specific and restrictive criteria for when a person is eligible for an expungement. The legislature could have prevented persons who have a juvenile record from obtaining an expungement of an adult conviction, but it did not do so. Instead, the legislature repeatedly used the term conviction, a term which by definition does not include juvenile adjudications.


Michigan courts have repeatedly held that juvenile adjudications do not constitute convictions. People v Fort, 138 Mich App 322, 330 (1984). See also People v Ristich, 169 Mich App 754, 756 (1988) ([T]here is no such thing as a juvenile conviction); People v Covington, 144 Mich App 652, 655 (1985) (holding that earlier caselaw which refers to juvenile convictions incorrectly states the law as an adjudication is not a conviction); People v Daniels, 149 Mich App 602 (1986) (Juvenile convictions are not convictions, but merely adjudications.).


Thus, since the statute governing applications to set aside convictions MCL 780.621 applies only to offenses for which a person is convicted, is cannot apply to juvenile adjudications.


The second relevant aspect of the statutory scheme is that there is a separate statute, MCL 712.18e, for the expungement of juvenile adjudications. The existence of two separate expungement statutes for adult and juvenile offenses indicates not only that the legislature intended to treat such offenses differently, but also that the one conviction requirement of MCL 780.621 applies only to adult convictions. Importantly, MCL 712A.18e(1) allows for the expungement of a juvenile record only in circumstances where the person Ahas not been adjudicated of not more than 1 juvenile offense and . . . has no felony convictions. Thus, in relation to juvenile adjudications, the legislature decided and specifically spelled out that a person cannot have an adult conviction, and then get a juvenile adjudication expunged. By contrast, MCL 780.621 the expungement statute for adult convictions only addresses convictions, without any reference to juvenile adjudications. Since the requirements of MCL 780.621 and MCL 712A.18e parallel one another in most other respects, the fact that the legislature omitted any reference to juvenile adjudications in MCL 780.621, but referenced adult convictions in MCL 712A.18e, suggests that the legislature made a conscious choice to apply the one conviction requirement of MCL 780.621 to convictions only. In other words, while a juvenile who commits further crimes as an adult cannot have his or her juvenile record expunged, a person who has only one adult conviction but may also have been in trouble as a juvenile is eligible for an expungement.


The third important provision in the statutory scheme is MCL 712A.23, which prohibits the use of adjudications as the basis for subsequent disabilities. Specifically that statute provides: disposition of any child under this chapter, or any evidence given in such case shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the child under this chapter. The purpose of this statute is to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past. People v Smallwood, 306 Mich 49, 53 (1943). Thus the objective is to prevent a juvenile adjudication Afrom discrediting the individual subsequently due to his or her childhood actions. People v Pennington, 113 Mich App 688, 697 (1982). If a juvenile adjudication formed the basis for a bar to an expungement, for which the individual was otherwise eligible, this would be an unlawful subsequent use of the adjudication, in violation of MCL 712A.23.


Fourth, allowing juvenile adjudications to bar expungements of adult runs counter to the basic purpose of the juvenile system, which is to foster the rehabilitation of errant youths. As the Court of Appeals has noted, [t]he unique feature of the family court is the civil, and not criminal, nature of the proceedings, known as adjudications. People v Thenghkam, 240 Mich App 29, 36 (2000). Juvenile adjudications are fundamentally different from adult convictions in that a juvenile who is adjudicated in the juvenile system (as opposed to a juvenile or adult tried in the criminal justice system) is not afforded the full protections available to criminal defendants. For example, juveniles do not have the right to a jury, see McKeiver v Pennsylvania, 403 US 528 (1971), and do not have the right to bail, see Schall v Martin, 467 US 253 (1984). The justification for such limitations on a juvenile’s rights is that a juvenile adjudication does not result in the same penalties as an adult conviction. As the United States Supreme Court has explained, it is precisely because the juvenile court proceeding has not yet been held to be a criminal prosecution, that a juvenile’s rights can be limited. McKeiver, 403 US at 541. Conversely, then, a juvenile adjudication cannot carry the same consequences as an adult conviction, unless the juvenile is afforded the same rights as an adult. Thus, if juvenile adjudications were to be treated like adult convictions for the purposes of MCL 780.621, this would amount to treating adjudications that were obtained without affording defendants their full constitutional rights as if they were constitutionally-sound adult convictions. Finally, should the Court have any doubts about how the statute should be interpreted, it should err on the side of interpreting the statute liberally. As the Court of Appeals has explained, because the expungement statute is remedial in nature, it should be construed . . . liberally for the advancement of the remedy. People v. Van Heck, 252 Mich App 207, 217 (2002). In other words, because of the remedial nature of the statute, expungements should ordinarily be granted whenever an ex-offender meets the statutory requirements and can demonstrate rehabilitation. While trial courts have discretion in the granting of expungements, Van Heck indicates that judges should use that discretion expansively, in order to foster the rehabilitative purposes of the statute.


III. The Standard for Granting an Expungement


The statute provides that if a former offender meets the statutory standards, then an expungement should be granted whenever the court determines that the circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare. MCL 780.621(9). Thus the Court must look at the petitioner’s conduct post-conviction, as well as the public welfare. Conduct prior to the conviction including in this case Mr. Doe’s juvenile adjudications is not relevant. See People v. Rosen, 201 Mich App 621, 623 (1993) (holding that trial court erred by focusing on pre-conviction conduct, and remanding for a consideration of the defendant’s behavior since her conviction); People v. Boulding, 160 Mich App 156, 158 (1986) (reversing because trial court focused only on pre-conviction conduct); Van Heck, 252 Mich App at 209 (remanding for consideration of defendant’s circumstance since conviction).


A. The Circumstances and Behavior of the Petitioner since Conviction


The first of the factors that this Court should consider is Mr. Doe’s conduct and behavior since his conviction on July 13, 1994, almost nine years ago.


Mr. Doe, who spent much of his childhood in foster care, has had to overcome serious obstacles to become the stable and mature adult he is today. He broke with a group of friends who were a bad influence. He got a GED. He is now married, and has a baby on the way. Mr. Doe has had no involvement with the criminal justice system since he was eighteen years old. Moreover, Mr. Doe who had had his driver’s license revoked on account of his convictions persuaded the court of his rehabilitation. In April 1997 he was granted a restricted license, and in July 2001 his license was fully restored. See Court file 97-02746-AL.


Although Mr. Doe has had great difficulty finding work, due to his criminal record, he has not given up on his goal of finding a stable job with which to support his family. Mr. Doe worked for approximately one a half years for an optical supply company. Since then, he has primarily worked at temp services, which are more willing than other employers to hire ex-offenders. Over the past year, Mr. Doe has had seven different assignments with a temp service. Between such assignments, Mr. Doe had repeatedly sought a permanent job. Unfortunately, Mr. Doe has been turned down for at least one hundred regular jobs as a result of his criminal record. Employers simply refuse to hire him because he has a felony record.


Attached please find a series of letters which are a testament to Mr. Doe’s good character.


B. The Public Welfare


The second factor which the Court must consider is the public welfare. Granting an expungement to Ms. Doe would serve the public welfare.


One of the primary reasons that Mr. Doe is requesting an expungement is that his criminal record has been a huge barrier in his attempts to obtain stable employment. The public welfare is served by making it easier for ex-offenders like Mr. Doe to find employment. The unemployability of ex-offenders is a major societal problem, with huge consequences for both public safety and the public purse. According to one study, 65% of employers will not knowingly hire an ex-offender. See Stigma that Never Fades, The Economist, Aug. 20, 2002, at 25, 26. Moreover, ex-offenders are barred from a variety of professions. See, e.g., MCL 333.20173. Yet research shows that employment has a tremendous impact on recidivism. Unsurprisingly, ex-offenders who have a legal means to pay their bills are less likely to return to crime. Studies have repeatedly shown that having a job with decent wages is associated with lower rates of reoffending. See Urban Institute, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (2001) at 31. According to one estimate, a 10 percent decrease in an individual’s wages is associated with a 10-20 percent increase in his criminal activity and likelihood or incarceration. See id.


The public has a strong interest in promoting the employment of ex-offenders, since such reintegration into the community reduces recidivism. Reductions in recidivism, in turn, reduce the high financial cost of incarcerating offenders, as well as the high human cost imposed on future crime victims. Moreover, ex-offenders who are employed are less likely to become public charges, resulting in further cost savings to the public fisc. Because of the difficulty of obtaining employment, a parent like Mr. Doe is much more likely to need to rely on the welfare system to support his family if he is unable to get an expungement, than if he can clear his name and find stable employment.


The legislature, recognizing that the public welfare is served by the reintegration of ex-offenders, has designed expungement as a specific statutory remedy to the social stigma and legal disabilities inherent in a criminal record. Where an ex-offender has been convicted of only one offense and where that ex-offender has shown evidence of rehabilitation, the public welfare will almost always be best served by granting an expungement, as a way to promote that individual’s reintegration into society. An expungement thus benefits not only the ex-offender in this case, Mr. Doe -- but also society at large.


IV. Conclusion


Whereas Mr. Doe’s conduct and behavior since conviction demonstrates that he has been rehabilitated, and whereas it serves the public welfare to promote the reintegration of ex-offenders into society, the defendant respectfully requests that an expungement be granted.


Dated: August 2, 2006
WESTERN MICHIGAN LEGAL SERVICES
By: Miriam J. Aukerman (P63165)
Attorneys for Defendant

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