IN THE MATTER OF THE
EXPUNGEMENT OF THE CRIMINAL
RECORDS OF E.C. APPELLATE DIVISION
______________________________
Argued December 12, 2017 – Decided March 19, 2018
Before Judges Reisner, Gilson, and Mayer.1
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
02002649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5175-15T4 APPROVED FOR PUBLICATION
The opinion of the court was delivered by
REISNER, P.J.A.D.
1
Judge Mayer did not participate in oral argument. She joins
the opinion with the consent of the parties. R. 2:13-2(b).
E.C. appeals from a June 17, 2016 order denying her
petition to expunge her conviction.2 We hold that an individual
who has been discharged from probation without improvement, and
who has subsequently paid all outstanding fees and fines, is not
barred from applying for expungement pursuant to
N.J.S.A. 2C:52-
2(a)(2). However, the court may consider her performance while
on probation as one factor in deciding whether to grant the
petition. The trial court erred in holding that E.C. was barred
from applying for expungement because she had been discharged
from probation without improvement. We reverse the order on
appeal and remand this matter to the trial court for further
consideration on an expedited basis.
I
On May 31, 2002, E.C. was arrested on drug charges that
were later resolved through a plea bargain. On December 13,
2002, she pled guilty to one count of third-degree possession of
cocaine with intent to distribute,
N.J.S.A. 2C:35-5(a)(1), and
was sentenced to three years of probation, conditioned on
2
We use E.C.'s initials to protect her privacy, as this opinion
discloses personal details from her application. Further,
posting her name on the internet, as part of this opinion, would
defeat the purpose of expungement, should that relief be granted
on remand. See R. 1:38-3(c)(7).
2 A-5175-15T4
serving six days in jail and paying $1205 in fines and fees.3
Pursuant to the plea agreement, the court also dismissed charges
that had been filed against E.C. after an arrest on June 14,
2002.
Almost three years later, on November 18, 2005, E.C. pled
guilty to violating probation, due to her failure to report to
her probation officer on several occasions in 2005, failure to
advise the probation officer that she had moved, and failure to
pay the fines. She was discharged from probation "without
improvement," and all fines remained in effect. However, by
February 8, 2010, she had paid off all the fines. In support of
her expungement petition, E.C. submitted an October 29, 2013
letter issued by the Essex Vicinage Probation Services,
advising: "All fines have been paid in full. On 2/08/2010 this
case was discharged as a completed term."
On November 9, 2015, E.C. filed a petition pursuant to the
"early pathway" section of the expungement statute,
N.J.S.A.
2C:52-2(a)(2),4 seeking to expunge the 2002 arrest and
3
We refer to these obligations, collectively, as "fines." See
N.J.S.A. 2C:52-2(a).
4
This section permits the court to grant expungement after five
years, if the court finds that expungement would be "in the
public interest."
N.J.S.A. 2C:52-2(a)(2). At the time section
(a)(2) was adopted, an applicant ordinarily had to wait ten
years before applying (the ordinary pathway). The Legislature
(continued)
3 A-5175-15T4
conviction, and to expunge the charges that had been dismissed
as part of the 2002 plea bargain. She also sought to expunge
the June 14, 2002 arrest on charges that were later dismissed,
and a 2012 arrest that the State admitted was an error. Other
than motor vehicle violations, and the mistaken 2012 arrest, she
had no brushes with the law since 2002.
E.C.'s petition explained that she was nineteen years old
at the time of her May 2002 arrest. As a result of the 2002
conviction, she lost her public housing and was forced to drop
out of college because she lost her federal aid. Her petition,
which was supported by extensive documentation, also described
her years-long efforts to complete her education in the health
care field, while caring for her two children. By 2015, she had
graduated from a business college with a 4.0 GPA and hoped to
become a certified phlebotomist and medical assistant. However,
her 2002 conviction hindered her ability to obtain the
certification and obtain a full-time position in a hospital.
Letters of support attached to her petition attested to E.C.'s
(continued)
recently reduced the ordinary pathway to six years. L. 2017, c.
244, § 1. Both the early pathway provision and the ordinary
pathway provision require that an applicant who has been on
probation show "satisfactory completion of probation," in
addition to payment of any fines. See
N.J.S.A. 2C:52-2(a).
4 A-5175-15T4
good character. In summary, E.C. appeared well qualified for
expungement.
However, other than agreeing to expungement of the mistaken
2012 arrest, the Union County Prosecutor's Office opposed the
application. The prosecutor argued that E.C. had not
"satisfactorily completed" her term of probation, within the
meaning of the expungement statute,
N.J.S.A. 2C:52-2, because
she had been discharged from probation without improvement. 5 The
trial court agreed with that argument. Based on the trial
court's construction of the statute, E.C. would be permanently
unable to apply for and obtain expungement of her criminal
record, due to her imperfect performance while on probation.
See
N.J.S.A. 2C:52-2(a);
N.J.S.A. 2C:52-2(a)(2). By contrast,
persons convicted of the same crime as E.C., who were sentenced
to prison instead of probation and completed their sentences,
would be able to apply for expungement.
II
Our review of the trial court's statutory interpretation is
de novo. In re Expungement Petition of J.S.,
223 N.J. 54, 72
(2015); In re Kollman,
210 N.J. 557, 577-78 (2012). As
5
In response to our inquiry, the Union County Prosecutor's
Office was unable to identify any other prosecutor's office in
New Jersey that espouses this interpretation of the expungement
statute.
5 A-5175-15T4
discussed below, we conclude that in accepting the prosecutor's
restrictive reading of the statutory language, the trial court
arrived at an absurd result that was contrary to the
Legislature's purpose in enacting the expungement statute. In
addition, the trial court's construction of the statute is
contrary to the meaning of the term "satisfactory" as ordinarily
defined and as read in context.
We begin by considering the well established standards by
which we interpret legislation.
Our paramount goal in interpreting a statute
is to ascertain the Legislature's intent,
requiring we start with the statutory
language. When interpreting a statute, we
give words "their ordinary meaning and
significance." Further, "we must construe
the statute sensibly and consistent[ly] with
the objectives that the Legislature sought
to achieve." "We will not adopt an
interpretation of the statutory language
that leads to an absurd result or one that
is distinctly at odds with the public-policy
objectives of a statutory scheme."
[Leggette v. Gov't Emps. Ins. Co., 450 N.J.
Super. 261, 265 (App. Div.), certif. denied,
231 N.J. 216 (2017) (citations omitted)
(alterations in original).]
By its terms, the expungement statute requires that an
applicant have paid all applicable fines, satisfactorily
completed parole or probation, or been released from
incarceration, "whichever is later."
N.J.S.A. 2C:52-2(a)(2).
The statute sets forth the criteria as follows:
6 A-5175-15T4
at least five years has expired from the
date of his [or her] conviction, payment of
fine, satisfactory completion of probation
or parole, or release from incarceration,
whichever is later; the person has not been
convicted of a crime, disorderly persons
offense, or petty disorderly persons offense
since the time of the conviction; and the
court finds in its discretion that
expungement is in the public interest,
giving due consideration to the nature of
the offense, and the applicant’s character
and conduct since conviction.
[Ibid. (emphasis added).]
The ordinary pathway section of the statute,
N.J.S.A. 2C:52-
2(a), under which an offender must wait longer before applying,
contains the same language concerning satisfactory completion of
probation. Therefore, if we accept the trial court's
construction of the statute, an offender who cannot meet this
requirement will never be able to apply for expungement.
In construing the term "satisfactory" we must consider the
overriding purpose of the statute in which it appears. The
expungement statute "shall be construed with the primary
objective of providing relief to the one-time offender who has
led a life of rectitude and disassociated himself [or herself]
with unlawful activity . . . ."
N.J.S.A. 2C:52-32. Our Court
has recognized the Legislature's remedial purpose in adopting
the statute, to address barriers that hinder offenders from
obtaining employment and living law-abiding lives:
7 A-5175-15T4
Millions of adults nationwide have criminal
records that affect their reentry into
society years after their sentence is
complete. Criminal records can present
barriers to employment, licensing, and
housing, among other things.
To afford a second chance to one-time
offenders convicted of less serious
offenses, who have led law-abiding lives
since conviction, the Legislature enacted a
law that allows certain records to be
expunged after ten years.
N.J.S.A. 2C:52-
2(a). In 2010, the Legislature amended the
statute to broaden opportunities for
expungement.
[Kollman,
210 N.J. at 562.]
Under the 2010 amendment, an individual may apply for
expungement five years after completing her sentence. Ibid.;
N.J.S.A. 2C:52-2(a)(2). To obtain expungement under this
section, the applicant must prove that expungement is "in the
public interest," in light of "the nature of the offense" and
her "character and conduct since conviction."
N.J.S.A. 2C:52-
2(a)(2); Kollman,
210 N.J. at 562. As Kollman recognized, the
amendment reflected policy concerns of both the Governor and the
Legislature "'to promote employability' of rehabilitated ex-
offenders." Id. at 570-71 (citations omitted). The 2010
amendment also expanded opportunities by permitting expungement
of third-degree drug offenses. Id. at 571-72;
N.J.S.A. 2C:52-
2(c)(3).
8 A-5175-15T4
In construing the amendment, the Court has emphasized that
"[p]etitioners are not required to demonstrate that they are
'exceptional' or 'extraordinary' applicants." Kollman,
210 N.J.
at 574 (citing In re LoBasso,
423 N.J. Super. 475, 496 (App.
Div. 2012)). "The court must be mindful that the statute is
intended to promote reentry of ex-offenders by creating this
early pathway to expungement. It would defeat the statute's
purpose to set the threshold so high that virtually no one
qualifies." LoBasso, 423 N.J. Super. at 491. "[T]he
legislative history makes clear that successful reentry of ex-
offenders is in the public interest as it promotes public
safety, and enhances the lives of the ex-offenders and
communities where they live." Id. at 495; see also Kollman,
210 N.J. at 577.
In 2017, the Legislature further amended the statute to
reduce the waiting period for an ordinary expungement
application from ten years to six years, and increase the number
and types of offenses that may be expunged. See L. 2017, c.
244, § 1 (enacted December 20, 2017, effective October 1, 2018).
Thus, the legislative history strongly suggests an intent to
expand rather than restrict the opportunities available to first
offenders to obtain expungement of their criminal records.
9 A-5175-15T4
Having considered the statute's purpose, we turn to the
ordinary definition of the term "satisfactory" and its meaning
as gleaned from the probation statute. See In re Petition for
Referendum on Trenton Ordinance 09-02,
201 N.J. 349, 359 (2010)
(statutes dealing with the same subject "should be read in pari
materia . . ."). The Oxford Dictionary definition of
"satisfactory" is "[f]ulfilling expectations or needs;
acceptable, though not outstanding or perfect."6 In their
appellate briefs, both parties accept that definition.
The probation statute further illustrates the meaning of
the term. As part of a probationary sentence, a court may
require a defendant to satisfy certain conditions, including
paying a fine.
N.J.S.A. 2C:45-1(b)(11). The court may sentence
a defendant to a term of probation of up to five years.
N.J.S.A.
2C:45-2(a). However, "[t]he court, on application of a
probation officer or of the defendant, or on its own motion, may
discharge the defendant at any time."
N.J.S.A. 2C:45-2(a)
(emphasis added). Upon the termination of the probationary
period, "or the earlier discharge of the defendant," the
defendant "shall have satisfied his sentence for the offense"
unless the defendant has failed to pay any fines imposed, in
6
Satisfactory, Oxford Dictionaries Online,
https://en.oxforddictionaries.com/definition/satisfactory (last
visited Feb. 26, 2018).
10 A-5175-15T4
which case the probationary period may be extended.
N.J.S.A.
2C:45-2(c)(1). On the other hand, the court may revoke
probation and resentence the defendant if she has failed to
comply with a "substantial requirement" imposed as a condition
of probation or has been convicted of another offense.
N.J.S.A.
2C:45-3(a)(4).
As the statute indicates, a defendant who has been
discharged from probation, has "satisfied his [or her]
sentence," so long as he or she has paid all fines imposed. The
language of the probation statute suggests that a defendant who
has been discharged from probation and has later paid any
outstanding fines, has satisfactorily completed probation, even
if his or her performance while on probation has not been
perfect.
Kollman and LoBasso also support that view. As Kollman
held, in construing the early pathway provision, "courts may
examine an applicant's performance while in jail or on
probation." Kollman,
210 N.J. at 576. The Court also noted a
similar discussion in LoBasso, "contrasting early discharge from
probation with [a] history of probation violations." Ibid.
(citing LoBasso,
423 N.J. Super. at 492). From that language,
we infer that probation violations are not an absolute bar to
applying for expungement. Otherwise, there would be no need for
11 A-5175-15T4
a trial court to consider probation violations as one factor in
the public interest calculus, because the petitioner would be
statutorily unable to apply in the first place.
We hold that an individual who has been discharged from
probation, albeit with an imperfect record, and has paid all
outstanding fines, has satisfactorily completed probation within
7
the meaning of the expungement statute.
In this case, E.C. not only obtained a discharge from
probation but she satisfied the only remaining condition she
could complete, when she paid off all of her fines. As a
result, according to Probation Services, her case was
"discharged." Under those circumstances, we conclude that E.C.
satisfactorily completed her probationary term for purposes of
the statute. She completed the term in a sufficiently
acceptable manner that her probation was not revoked, she paid
all of the required fines, and she was discharged from
7
We do not address whether an individual whose probation was
revoked, and who was then sentenced to prison for the underlying
offense, may apply for expungement after serving the sentence
and after the statutory waiting period has expired. That issue
is not before us. We note, however, that the expungement
statute's primary policy focus is on the number and nature of
the offenses the applicant has committed. Those offenses define
who may apply for expungement. The waiting period provisions
define when the person may submit the application, under either
the early or the ordinary pathway.
12 A-5175-15T4
probation.8 Consequently, under
N.J.S.A. 2C:52-2(a)(2), she was
entitled to apply for expungement five years after she paid off
the fines, and she may obtain expungement if she persuades the
trial court that expungement is in the public interest.
Because the trial court viewed E.C. as barred from applying
for expungement under the early pathway provision, it did not
consider any of the other factors pertaining to her petition in
order to determine whether expungement was in the public
interest. Accordingly, we remand this matter to the trial court
to complete its consideration of the petition. On remand, the
trial court shall take into consideration the fact that, under
the 2017 amendment to the expungement statute, E.C. would soon
be entitled to apply for expungement under the ordinary pathway,
because eight years have now elapsed since she finished paying
her fines. See LoBasso, 423 N.J. Super. at 492 (an early
pathway application may be stronger if made "closer" to the
time-frame for an ordinary application). If the court grants
E.C.'s petition to expunge the 2002 conviction, it must also
expunge the charges that were dismissed as part of the 2002 plea
bargain. See
N.J.S.A. 2C:52-14(c).
8
Although it is not binding on us, we note that the Supreme
Court of Hawaii engaged in similar reasoning, in construing that
state's expungement statute. State v. Pali,
300 P.3d 1022,
1028-32 (Haw. 2013).
13 A-5175-15T4
Due to the delay caused by this litigation, and because
there is evidence that the conviction affects E.C.'s employment
opportunities, we direct that the court issue a decision on
E.C.'s petition within thirty days of the date of this opinion.
Reversed and remanded. We do not retain jurisdiction.
