# In the Missouri Court of Appeals **Eastern District**

DIVISION ONE S.E.M., ) No. ED 107403 ) Respondent, ) )
vs. ) Appeal from the Circuit Court ) of St. Louis County ST. LOUIS COUNTY, MISSOURI, et al., ) 18SL

- CC02526 ) Defendants, ) ) and ) Honorable Ellen W. Dunne ) MISSOURI STATE HIGHWAY PATROL ) CRIMINAL RECORDS REPOSITORY, ) ) Appellant. ) Filed: November 26, 2019
OPINION Missouri State Highway Patrol Cri minal Records Repository (“MSHP ”) appeals the judgment granting S. E. M.’s 1 petition request ing expungement of two prior felony drug
convictions under section 610.140 RSMo Supp. 2018 (effective Aug ust 28, 2018 through August 27, 2019) (“the August 2018 versi on of section 610 .140” or “the August 2018 version of the statute”)

. 2 We affirm.

1 Initials should be used to protec t the identity of the party. “ To do otherwise would encourage a party which opposed the expungement to appeal the decision in order to create a readily available public record of the now expunged offenses and would discourage a party seeking expungement f rom appealing the denial of that request due to the readily available public record created by the appeal

. ” R.G. v. Missouri State Highway Patrol , 580 S.W.3d 38, 39 n.1 (Mo. App. W .D. 2019). 2 In the underlying case, S.E.M. filed a petition request ing e xpungement against several underlying defendant s including St. Louis County, Missouri and MSHP. MSHP is the only underlying defendant who has filed an appeal in this case.2 I. BACKGROUND On November 21, 1987, S.E.M was charged with two unclassified felony drug counts in
vi olation of s ection 195.020 RSMo 1986

. S.E.M plead ed guilty and satisfied all obligations related to the disposition of the conviction s in February 1993

. Then, o n April 12, 1993, S.E.M. plead ed guilty to a clas s A misdemeanor stealing charge under chapter 570 RSMo Cum. Supp. 1993

. S.E.M. completed all obligations of the con viction

. S.E.M. has not plead ed guilty or been convicted of a misdemeanor or felony since 1993. On June 22, 2018, S.E.M filed a petition in the Circuit Court of St. Louis C ounty requesting expungement of the two felony drug convictions under section 610. 140 RSMo Supp. 2018 (effective January 1, 2018 through August 2 7, 2018) (“the January 2018 version of section
610.140” or “the January 2018 version of the statute” ). MSHP filed an answer asserting S.E.M.
is in eli gible for expungement due to the April 1 993 stealing conviction. Subsequently, section
610.140 RSMo was amended, and these amendments are reflected in the Au gust 2018 version of
section 610 .140. 3 On September 21, 2018, t he trial cou rt entered a ju dgment granting S.E.M.’s petition requesting expu ngement of the two prior felony drug convictions under the Au gust 2018 version
of section 610 .140. The trial court’s judgment expressly found that the August 2018 version of
the statute operates and applies retrospectively. MSHP appeals.
II. DISCUSSION
MSHP raises one point on appeal . MSHP does not assert the trial court erred in finding
the Au gust 2018 version of section 610 .140 operates and applies retrospectively; in stead, MSHP only asserts the trial cou rt erred in granting S. E. M

. ’s petition requesti ng expungement under the timing requirements of the August 2018 version of section 610 .140.5

. Nevertheless, b efore we

3 The relevant portions of the A ugust 2018 version of section 61 0.140 are set out below in Section II. B.2. of this opinion.3 address the merits of MSHP’s particular argument on appeal, we find it is important to establish which version of section 610.140 RSMo ap plies in this case , because whether section 610.140
RSMo operates and applies retrospectively appears to be an issue of first impression in Missouri.
A. The Version of Section 610.140 RSMo that Applies in this Case Generally, the version of a statute in effect at the time a petition is filed is the version applicable to a particular case. See Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 872 (Mo. banc 1993). Changes in statutory provisions that are substantive operate prospectively unless the legi slature expressly states otherwise. Id

. However, there is an exception in Missouri.
Id

. S tatutory provisions that are remedial or procedural operate retrospectively unless the legislature expressly states otherwise. Id

. In this case, although the Ja n uary 2018 version of section 610 .140 was the version of the
statute in effect at the time S.E.M.’s petition request ing expungement was filed, the trial court found the August 2018 version of the statute applies in this case because section 610.140 RSMo

op erates and applies retrospectively. This finding is correct under the circumstances of this case. Expungemen t statutes, including section 61 0.140 RSMo, are recognized as remedial and should be liberally construed. Martinez v. State , 24 S.W.3d 10, 19 (Mo . App. E.D. 2000); see generally
section 61 0.140 RSMo. Because section 61 0.140 RSMo is remedial and the legislature has not expressly stated that the statute op erates prospectively, section 61 0.140 RSMo operates retrospectively. See id .; Callahan , 863 S. W.2d at 872. Moreover , the effective date of the
A ugust 2018 version of section 61 0.140 was August 28, 2018 , and because the judgment was
entered on September 21, 2018, the August 2018 version of the statute applies retroactively
here. 4 See State ex rel. D&D Distributors, LLC v. Missouri Commission on Human Rights , 579

4 Section 610.14 0 was amended effective August 28, 2019, and this is the version of the statute currently in place; however, these amendments do not apply here and have no effect on this case.4 S.W.3d 318, 325 (Mo. App. W.D. 2019) (generally, changes to remedial or procedural statutes apply to all pending cases unless it would invalidate actions taken in a previous proceeding). We now turn to the merits of MSHP’s argument on appeal.
B. MSHP’s Argument on Appeal
In MSHP’s sole point on appeal, it argues the trial court erred in granting S.E.M.’s petition requesting expungement of the two prior felony drug convictions under t he timing requirements in subsection (1) and (2) of the A ugust 2018 version of section 61 0.140.5

. 5 For the reasons discussed below, we disagree.
1. Standard of Review A judgment from a court

- tried case will be affirmed unless there is no substantial

e vidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. W.C.H. v. State , 546 S.W.3d 612, 614 (Mo. App. E.D. 2018). The trial court’s application of statutory requirements is a question of law, rathe r than fact, and is reviewed de

novo. Id

. 2. Analysis The facts in this case are undisputed. The sole issue presented is a matt er of statutory interpretation which is a question of law that is subject to de novo review. Roesing v. Director of
Revenue , 573 S.W.3d 634, 637 (Mo. banc 2019) ; Lumetta v. Sheriff of St. Charles County , 413 S.W.3d 718, 720 (Mo. App. E.D. 2013) ; see also W.C.H. , 546 S.W.3d at 614 . Our primary rule in interpreting statutes is to determine the intent of the legislature from the language used, to give effect to the intent, and to consider the words in their plain and ordinary meaning. Dynasty Home, L.C. v. Public Water Supply District Number 3 of Franklin County , 453 S.W.3d 876, 879 (Mo. App. E.D. 2015 ); see R.H. v. Missouri Stat e Highway Patrol Criminal Records Repository ,

5 MSHP does not di spute that S.E.M. met all other requirements for expungement under the August 2018 version of section 610.140.5 578 S.W.3d 398, 403 (Mo. App. E.D 2019) (“we must give words and phrases in the statute t heir plain and ordinary meaning[] ”); see also Roesing , 573 S.W.3d at 639 ; Lumetta , 413 S.W.3d at
720. “When the words [o f a statute] are clear, there is nothing to construe beyond applying the plain meaning of the law.” Lumetta , 413 S.W.3d at 720 (quoting Bateman v. Rinehart , 391 S.W.3d 441, 446 (Mo. banc 2013))

. Here, the words of the relevant portions of the August 2018 version of section 610.140.5
are clear:

. . . At any hearing, the court may accept evidence and hear testimony on, and may consider, the following criteria for each of the offenses, violations, or infractions listed in the petition for expungement: (1 ) At the time the petition is filed , it has been at least seven years if the offense is a felony, or at least three years if the offense is a misdemeanor, municipal offense, or infraction, from the date the petitioner completed any authorized disposition impose d under section 557.011 for each offense, violation, or infraction listed in the petition; [and] (2) The person has not been found guilty of any other misdemeanor or felony, not including violations of the traffic regulations provided under chapters 304 and 307, during the time period specified for the underlying offense, violation, or infraction in subdivision (1) of this subsection [.] . . . (emphasis added). In this case, MSHP asserts the trial court erred in granting S.E.M.’s petition request ing

expun gement of the felony d rug convictions under the preceding timing requirements because S.E.M. had been found guilty of another crime (misdemeanor stealing in April 1993) during the

seven - year period following completion of the authorized disposition imposed

. MSHP argu es the applicable time frame of seven years must have ela psed without future convictions

– measured from the date of completion of disposition of the felony drug convictions

. So because
S.E.M. was found guilty of a misdemeanor in April 1993 , d uring the seven

- year period after February 1993 ( when S.E.M completed the disposition imposed for the felony drug crimes ) , MSHP asserts expungement of S.E.M.’s 1987 felony drug crimes is forever barred

.6 In support of the above argument, MSHP primarily r elies on this Court’s decision in
W.C.H. , which held “‘ the time period specified’ in section 610.140.5 (1) [RSMo. Cum. Supp. 2012] 6 begins on the date that the ‘person making the application has completed’ any sentence of imprisonment or any period of prob ation or parole, not the date of the petitioner’s conviction for the offense he or she is seeking to expunge.” 546 S.W.3d at 615 (quoting section 610.140.5 (1 ) and (2) RSMo Cum. Supp. 2012)

. However, we find MSHP’s reliance on W.C.H. is mi splaced
because the version of section 610.140.5 (1) and (2) RSMo analyzed under W.C.H. is not substantially similar to the version of the statute at issue here. See W.C.H. , 546 S.W.3d at 613 n.1, 613

- 15 (interpreting section 610.140.5 (1) and (2) RSMo Cum. Supp. 2012 ); compare section 610.140.5 (1) and (2) RSMo Cum. Supp. 2012 with the August 2018 version of section 610.140.5 (1) and (2). 7
Further , MSHP’s argument is contrary to the plain and ordinary meaning of the August
2018 version of section 610.140.5 (1) , which c learly states in relevant part that expungement of a

6 All references to section 610.140.5 (1) and (2) RSMo. Cum. Supp. 2012 incorporate legislative amendments made in 2012 and which were effectiv e from August 28, 2012 through December 31, 2017. 7 S ection 610.140.5 RSMo Cum. Supp. 2012 states in relevant part:

. . . At the hearing, the court may accept evidence and hear testimony on, and may consider, the following criteria for each of the offens es listed in the petition for expungement: (1) It has been at least twenty years if the offense is a felony, or at least ten years if the offense is a misdemeanor, municipal offense, or infraction, since the person making the application [has] completed : ( a) Any sentence of imprisonment; or (b) Any period of probation or parole ; (2) The person has not been found guilty of a misdemeanor or felony, not including violations of the traffic regulations provided under chapters 304 and 307, during the time period specified for the underlying offense in subdivision (1) of this subsection [.] In contrast, as previously mentioned, the statute at issue in this case, the August 2018 version of section 610.140.5 , provides in relevant part:

. . . At any hearing, the court may accept evidence and hear testimony on, and may consider, the following criteria for each of the offenses, violations, or infractions listed in the petition for expungement: (1) At the time the petition is filed, it has been at least seven years if the offense is a felony, or at least three years if the offense is a misdemeanor, municipal offense, or infraction, from the date the petitioner completed any authorized disposition imposed under section 557.011 for each offense, violation, or infraction listed in the petition; (2) The person has not been found guilty of any other misdemeanor or felony, not including violations of the traffic regulations provided under chapters 304 and 307, during the time period specified for the underlying offense, violation, o r infraction in subdivision (1) of this subsection [.]7 felony may be granted if, inter alia , “ At the time the petition is filed , it has been at least seven

y ears
. . . from the date the petitioner completed any authorized disposition imposed . . . for each

o ffense . . . listed in the petition . . .

. ” (emphasis added). We find by adding this emphasized statutory language, “[t] he legislature was focused on the time immediately prior to the filing of the petition for expungement because that is the period of t ime that would determine if the petitioner had changed their behavior so as to meet the statutory qualifications for expungement and deserves[s] the second chance provided by the statute.” See R.G. v. Missouri State Highway
Patrol , 580 S.W.3d 38, 39

- 42, 4 1 n.3 (Mo. App. W.D. 2019) and S.Y. v. Askren , 581 S.W.3d 721, 721

- 23, 722 n.2 (Mo. App. W.D. 2019) ( both similarly finding with respect to a pre

- August
2018 version of section 610.140.5 (1) and referencing the August 2018 version of the statute);
see also the August 2018 version of section 610.140.5 (1). Based on the foregoing, the phrase “ [ a ] t the time the petition is filed” in the August 2018
version of section 610.140.5 (1) clearly indicates the relevant seven

- year period is the seven

- year period immedi ately preceding the filing of the petition requesting expungement of a felony
conviction. See id

. In other words , the time period specified in the August 2018 version of
section 610.140.5 (1) starts from when the petition for expungement is filed and cou nts
backwards in time seven years. Here, S.E.M.’s petition requesting expungement of his two prior felony drug convictions was filed on June 22, 2018. I t is undisputed S.E.M. has not pleaded guilty to or been convicted of any offense since 1993 and that all of the obligations relative to the disposition of the offense s have been completed well before the seven

- year time period immediately prior to the filing of the petition requesting ex pungement (between June 22, 2011 and June 22, 2018 )

. Therefore,
MSHP ’s argument that the trial court erred in granting S.E.M.’s request for expungement under the timing requirements of the A ugust 2018 version of section 61 0.140.5 (1) and (2) has no
merit. Point denied.8 III. CONCLUSION Based on the foregoing, the trial c ourt’s judgment granting S.E.M. ’s petition requesting expungement of two prior felony drug convictions is affirmed.

RO B ERT M. C L A Y T O N I I I , Presiding J ud g e Robert G. Dowd, Jr., J., and Roy L. Richter, J., concur.