State v. Singleton

49

Submitted November 5, 2021, vacated and remanded January 12, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

ADAM JAMES SINGLETON,

Defendant-Appellant.

Lincoln County Circuit Court

084155; A175454

503 P3d 499

Defendant appeals from an order denying his motion to set aside a conviction

and seal records of arrest. He argues that the trial court erred in determining

him ineligible for expungement and denying his uncontested motion without hold-

ing an evidentiary hearing. Held: The trial court erred in denying defendant’s

motion, and it was required to provide defendant with the opportunity to engage

in a hearing where relevant evidence could be admitted and he could challenge,

rebut, or explain that evidence and submit contrary evidence. Accordingly, the

Court of Appeals vacated the trial court’s order denying defendant’s motion and

remanded for further proceedings.

Vacated and remanded.

Sheryl Bachart, Judge.

Adam L. Dean filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Timothy A. Sylwester, Assistant Attorney

General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Mooney, Judge, and

DeVore, Senior Judge.

DeVORE, S. J.

Vacated and remanded.

50 State v. Singleton

DeVORE, S. J.

Defendant filed a motion under ORS 137.225 (2019),

amended by Or Laws 2021, ch 486, § 1,1 to set aside his

fourth-degree assault conviction, entered March 2009, and

seal the records of arrest. The state had no objection, but

the trial court denied defendant’s motion and did so with-

out holding a hearing. Defendant appeals the denial of his

motion. In his first assignment of error, he contends that

the trial court erred in determining him to be ineligible for

expungement. In his second assignment, he contends that

the trial court erred by denying his motion without allowing

him to have an evidentiary hearing. We agree with defen-

dant, and, because it is a case of first impression, we write

principally to address his second assignment. We vacate

and remand.

The underlying pertinent facts are not in dispute.

Defendant filed his motion with an attached declaration and

fingerprint card. His declaration contained factual asser-

tions sufficient to satisfy the statutory requirements to have

his 2009 assault conviction and related arrest record set

aside. The district attorney did not challenge any of defen-

dant’s factual assertions and affirmed in writing to the trial

court that the state had “no objection to entry of an order

setting aside” the conviction and arrest record. The trial

court denied the motion in writing:

“Motion is denied. Defendant convicted 2009 Strangulation

(D091244M); Unauthorized Departure (D096095M); DUII

& Menacing (D072840M); probation revoked this case

5/26/10).”

Defendant appealed the trial court’s denial of his motion.

“We review for legal error a trial court’s determi-

nation of whether a movant is entitled to have his * * * con-

viction set aside.” State v. Kindred, 314 Or App 280, 283,

499 P3d 835 (2021). ORS 137.225 provides a mechanism for

1

We refer to the version of the statute in effect at the time defendant filed

his motion and when the trial court issued its decision. Defendant contends, and

the state concedes, that the trial court erroneously applied that law. We note that

amendments to the statute went into effect on January 1, 2022. To the extent

that those amendments have any bearing on the issues going forward, the parties

can address those issues on remand.

Cite as 317 Or App 49 (2022) 51

certain defendants, under specific circumstances, to have a

record of arrest and a criminal conviction set aside. When

a defendant has established that he is eligible to have his

conviction set aside, the court may deny such a motion if the

court determines that the “circumstances and behavior of

the applicant” since the arrest and conviction do not “war-

rant” granting the set-aside remedy. ORS 137.225(3).

As to the first assignment, the state agrees with

defendant that, on this record, the trial court’s explanation

for denying the motion does not appear to be legally correct,

and that we should remand to the trial court for reconsider-

ation of its decision. The state’s concession is well taken, and

we accept it.

As we explained in State v. Bomar, 79 Or App 451,

454, 719 P2d 76 (1986), “[i]n State v. Langan, 301 Or 1, 718

P2d 719 (1986), the Supreme Court squarely rejected the

state’s contention * * * that a trial court’s decision to set

aside a conviction is entirely discretionary.” In Langan, the

Supreme Court considered the legislative history of ORS

137.225 and explained that “the legislature chose a policy

in favor of setting aside the convictions of qualified appli-

cants rather than leaving the decision to judicial discre-

tion.” 301 Or at 8. We have repeatedly “held that Langan

requires proof that a person did something ‘contrary to pub-

lic law’ for a court to deny a motion under ORS 137.225(3).”

Kindred, 314 Or App at 285. Upon review of the record, we

agree with the parties that a denial of defendant’s motion

is not supported by the evidentiary record. The trial court

appears to have relied on facts not presented by the parties.

As matters stand, the record does not contain evidence of

“circumstances and behavior” that would justify a denial of

defendant’s motion. The trial court therefore erred in deny-

ing defendant’s motion based on this record.

In the second assignment of error, defendant asserts

that the trial court erred in denying his motion without

holding an evidentiary hearing. The state does not dis-

pute the point. Defendant argues that the plain language

of ORS 137.225 “clearly envisions an evidentiary hearing”

and points to provisions in which a hearing is mentioned. In

ORS 137.225(2), the statute provides, in part:

52 State v. Singleton

“(a) A copy of the motion and a full set of the defen-

dant’s fingerprints shall be served upon the office of the

prosecuting attorney who prosecuted the crime or viola-

tion, or who had authority to prosecute the charge if there

was no accusatory instrument filed, and opportunity shall

be given to contest the motion. * * *

“(b) When a prosecuting attorney is served with a copy

of a motion to set aside a conviction under this section, the

prosecuting attorney shall provide a copy of the motion and

notice of the hearing date to the victim, if any, of the crime

by mailing a copy of the motion and notice to the victim’s

last-known address.”

(Emphases added.) Similarly, ORS 137.225(3) provides, in

part:

“Upon hearing the motion, the court may require the

filing of such affidavits and may require the taking of such

proofs as the court deems proper. The court shall allow

the victim to make a statement at the hearing. * * * [I]f the

court determines that the circumstances and behavior of

the applicant from the date of conviction, or from the date

of arrest, citation or charge as the case may be, to the date

of the hearing on the motion warrant setting aside the con-

viction, or the arrest, citation or charge record as the case

may be, the court shall enter an appropriate order that

shall state the original arrest or citation charge and the

conviction charge, if any and if different from the original,

date of charge, submitting agency and disposition.”

(Emphases added.)

Although the statute appears to contemplate a hear-

ing being held—at least if a motion is contested—defendant

acknowledges that the statute does not specifically address

a situation where the court denies an uncontested motion

without a hearing. Defendant argues, however, that the

legislature made clear its intention that eligible applicants

be afforded a hearing to present their case. The legislature

did so by referring to an evidentiary hearing three times in

ORS 137.225.

In the state’s view, when, as here, the record is suf-

ficient to show that a defendant is eligible for the set-aside

remedy that he requests in his motion and the trial court

wants to exercise its authority under ORS 137.225(3) to

Cite as 317 Or App 49 (2022) 53

deny that request based on defendant’s “circumstances and

behavior,” the court should hold a hearing at which evidence

that is relevant to that issue could be admitted and the

defendant would have a fair opportunity to challenge, rebut,

or explain that evidence and to submit contrary evidence.

A reading of the plain terms of ORS 137.225(2) and (3)

confirms that the legislature intended for a hearing to take

place in at least some circumstances when a defendant files

a motion to set aside a conviction. Subsection (3), the part of

the statute regarding consideration of the “circumstances

and behavior” of a defendant that will be determinative of

whether to grant the defendant’s motion, specifically states

that the court can consider additional evidence: “Upon hear-

ing the motion, the court may require the filing of such

affidavits and may require the taking of such proofs as the

court deems proper.”

Our construction of the statute is supported by case

law that has explained the legislature’s intent in leaving lit-

tle discretion to the trial court, Bomar, 79 Or App at 454; in

requiring proof of the applicant doing something contrary

to public law in order to deny relief, Kindred, 314 Or App

at 285; and in favoring the setting aside of convictions for

qualified applicants, Langan, 301 Or at 8.

Defendant met the initial criteria to have his con-

viction set aside, and the state did not object or otherwise

contest defendant’s motion. If, nonetheless, the trial court

was inclined to deny the motion, it was required to pro-

vide defendant with the opportunity to engage in a hearing

where relevant evidence could be admitted and defendant

could challenge, rebut, or explain that evidence and submit

contrary evidence.

Accordingly, we vacate the trial court’s order deny-

ing defendant’s motion and remand for further proceedings

consistent with this opinion.

Vacated and remanded.