FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2006-1507

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

KERLYN ERWIN,
Defendant.

ORDER DENYING MODIFICATION OF SENTENCE TO INCLUDE EXPUNGEMENT

Dennis K. Yamase
Associate Justice

Decided: July 23, 2008

APPEARANCE:
For the Defendant: William E. Minkley, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure  Expungement of Records
The expungement of criminal records seem to fall generally within three categories: expungement pursuant to statute, expungement where it is necessary to preserve basic legal rights, and expungement based on acquittal. FSM v. Erwin, 16 FSM Intrm. 42, 43 (Chk. 2008).

Criminal Law and Procedure  Expungement of Records
A defendant, having pled guilty and been sentenced, does not fit into the category of expungement cases where the defendant was never convicted, and when she does not allege that her conviction stems from the unlawful conduct of law enforcement agents she does not fit into another situation where courts have exercised an inherent power to expunge records. FSM v. Erwin, 16 FSM Intrm. 42, 44 (Chk. 2008).

Criminal Law and Procedure  Expungement of Records; Separation of Powers
A court exercising only its inherent power would need a very extraordinary and compelling case to expunge or seal not only the judicial branch's conviction records but also the arrest records maintained by the executive branch since that would implicate separation of powers concerns. FSM v. Erwin, 16 FSM Intrm. 42, 44 (Chk. 2008).

Criminal Law and Procedure  Expungement of Records
When the defendant has pled guilty and been sentenced and any statement about the effect on her possible enrollment in a nursing school is, at this time, premature and purely speculative, the case is unlike those extraordinary and unusual cases where the remedy of expungement has a logical relationship to the injury to the defendant and the court has balanced the government's need for the records with the harm to the person that results from the government's maintaining the records. This right is a narrow one but can be used to vindicate rights secured by the Constitution or statute. FSM v. Erwin, 16 FSM Intrm. 42, 44 (Chk. 2008).

Criminal Law and Procedure  Expungement of Records; Criminal Law and Procedure  Parole; Criminal Law and Procedure  Sentencing
Congress has granted the court the power to suspend jail sentences, to suspend the imposition of a sentence, and to parole prisoners after they have served part of their sentence, but it has not given the court the power to expunge convictions. FSM v. Erwin, 16 FSM Intrm. 42, 45 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On April 30, 2008, defendant Kerlyn Erwin pled guilty to Count I of the information and the court granted the government's motion to dismiss Count II. On May 20, 2008, she was sentenced to be committed to the custody of the Chuuk Department of Public Safety for imprisonment for two years, with the sentence suspended, except for fifty days, which were to be served as house detention. At the sentencing hearing, Erwin sought an added provision whereby, if she successfully completed her sentence, her record would be expunged.

Erwin was asked to brief whether the court has the power to expunge a defendant's record. Erwin filed her brief on June 17, 2008. The prosecution had until July 3, 2008, to file its own memorandum, but did not file a brief. The court considers Erwin's filing to be a timely motion under Criminal Procedure Rule 35(b) for reduction or modification of sentence, for which the court, at the time it pronounced sentence, had granted Erwin leave to file.

Erwin concedes that the one FSM case on expungement, FSM v. Kihleng, 8 FSM Intrm. 323 (Pon. 1998), does not support her request for expungement, but she asserts that it also does not prohibit the court from ordering expunction of her record. The Kihleng court noted that "the expungement of criminal records seem to fall generally within three categories: expungement pursuant to statute, expungement where it is necessary to preserve basic legal rights, and expungement based on acquittal." Id. at 325. In 1998, the Kihleng court dismissed the information with prejudice under a 1993 order (based on a stipulated plea agreement), which had deferred entry of the defendant's plea and imposition of sentence so long as the defendant made restitution payments of $14,374; engaged in no illegal conduct during the following five years; completed a jail term of seven days; and was under house arrest for 105 consecutive days. Id. at 324. Kihleng also sought to have his record expunged. The Kihleng court denied that request since expungement was not sought pursuant to a statute, or based on an allegation of unlawful conduct by law enforcement authorities, or based on the defendant's exoneration or acquittal. Id.

Erwin thus sought authority from other jurisdictions on "whether a court has the inherent power to enter an order of expunction of a criminal conviction" and noted a split of authority on this point. Br. at 3 (June 19, 2008). Erwin relies on those cases that hold that courts do have an inherent power to expunge criminal records cited in section 3(b) of Vitauts M. Gulbis, Annotation, Judicial Expunction of Criminal Record of Convicted Adult, 11 A.L.R.4th 956, 968-72 (1982). In particular, she focuses on the annotation's subject case, Commonwealth v. Briley, 420 A.2d 582, 11 A.L.R.4th 947 (Pa. Super. Ct. 1980).

In Briley, the defendant was a first-time offender, who, after a prima facie case was made out against him at a preliminary hearing, was admitted into a pretrial accelerated rehabilitative disposition program, whereby, after he completed 18 months probation and paid a $200 fine, the charges against him were dismissed. 420 A.2d at 584, 11 A.L.R.4th at 949. The Briley court concluded that since the government was forever barred from prosecuting the defendant on the dismissed charges, the defendant's situation was similar to those cases where the court had earlier found and exercised an inherent power to order expungement when the defendant was not guilty or when no prima facie case could be made out. Id. at 585-86, 11 A.L.R.4th at 950-52.

In Briley, and all the cases that the Briley court cited, the defendant seeking expungement, unlike Erwin, had not been convicted of an offense. Erwin, having pled guilty and been sentenced, does not fit into the category of expungement cases where the defendant was never convicted. Nor does she allege that her conviction stems from the unlawful conduct of law enforcement agents, see, e.g., United States v. McLeod, 385 F.2d 734, 747-50 (5th Cir. 1967) (arrests and convictions undertaken by law enforcement for the purpose of interfering, in violation of 1957 Civil Rights Act, with persons' right to register and vote ordered expunged), another situation where courts have exercised an inherent power to expunge records.

The scope of Erwin's request is somewhat unclear. It is uncertain whether she seeks expungement of just her conviction or whether she also seeks expungement of her arrest record. A court exercising only its inherent power would need a very extraordinary and compelling case to expunge or seal not only the judicial branch's conviction records but also the arrest records maintained by the executive branch since that would implicate separation of powers concerns. See, e.g., United States v. Scott, 793 F.2d 117, 118 (5th Cir. 1986). Nonetheless, Erwin presents a factual basis  it was her first offense, this was a multiple-defendant case where she was not the principal offender and her participation was incidental, she is under 21, a mother of a one-year old, and a record may have adverse affect on her stated desire to attend nursing school  that she might be a logical candidate for possible expungement of her record if she successfully completes her probation. However, any statement about the effect on Erwin's possible enrollment in a nursing school is, at this time, premature and purely speculative.

Thus, this is also unlike those extraordinary and unusual cases where the remedy of expungement has a logical relationship to the injury to the defendant and the court has balanced the government's need for the records with the harm to the person that results from the government's maintaining the records. See United States v. Smith, 745 F. Supp. 1553, 1555-56 (C.D. Cal. 1990) (expungement ordered because without expungement first-time offender who had completed his five years probation would not be able to vote, to be reinstated to California bar, and to reenlist in his Army Reserve unit to serve in Saudi Arabia in the Gulf war). This right is a narrow one but can be used to vindicate rights secured by the Constitution or statute. Id. at 1555. The current case (assuming that Erwin successfully completes her sentence) would be more like United States v. Scott, 793 F.2d 117, 118 (5th Cir. 1986) where the appellate court reversed an expungement order because the trial court lacked power to expunge conviction of a defendant who had pled guilty, complied with the terms of her two-year probation, and paid full restitution plus a fine, even though the defendant claimed that her felony record had burdened her in her profession as a securities dealer.

Since this case does not fall into any of the categories where the Kihleng court indicated, without deciding, that expungement might be possible, the court concludes that in order for it to expunge the record of someone convicted of a national crime, Congress would have to first grant the court that power, especially if the expungement were to include not only the conviction record but the arrest record. Congress has granted the court the power to suspend jail sentences, 11 F.S.M.C. 1202(3), to suspend the imposition of a sentence, 11 F.S.M.C. 1202(4), and to parole prisoners after they have served part of their sentence, 11 F.S.M.C. 1204. It has not given the court the power to expunge convictions. Until it does, this does not appear to be the type of case where the court could expunge a convicted defendant's record.

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