Who Decides If I Get An Expungement?

STATE V. UNDERWOOD, 615 P.2D 153 (KAN. 1980).

This case explored the issue of who decides if a defendant gets an expungement. In exploring this issue, the court concluded that the granting or denial of an application for expungement of a conviction was up to the court. Id. at 158.

In this case, the defendant appealed from a jury conviction of felony murder. Id. at 155. A defendant is guilty of felony murder when the defendant commits an inherently dangerous felony and a person dies because of the felony. Additionally, a felony murder does not require that the defendant had intent to kill. All that matters is the defendant commits a felony and a person was killed because of the felony. In the present case, the underlying felony which the court used to classify the homicide as a felony murder was unlawful possession of a firearm. Id. Moreover, the reason the court charged the defendant with unlawful possession of a firearm was because he had been convicted of felony theft in 1974 after he stole a bicycle from the Wichita State University campus. Id. at 155-56. As a result of the felony theft conviction, the defendant completed two years of probation. Id. at 156.

The events leading to the defendant’s conviction on the felony murder charged occurred on October 28, 1978. Id. After being accused of stealing marijuana, the defendant and another man got in a fight. Id. During the fight, the man pulled out a gun and the defendant retreated to his house. Id. Eventually, the defendant retrieved his gun and went back to confront the man. Id. After another fight between the two ensued, the defendant pulled out his gun and shot and killed the man. Id. Later, the defendant testified he fired the shot because he saw the man pulling out his gun and feared for the safety of his friends and himself. Id. However, the district court held that even if the defendant was acting in self-defense, he already had a record of felony theft which made his possession of a gun a felony. Id. Therefore, the district court convicted the defendant of felony murder. Id. The defendant’s main argument was that his felony theft conviction should have been expunged after he completed his two years of probation. Id. If this was the case, it would not have been a felony for him to possess a firearm and the court could not convict him of felony murder. Id.

In examining the defendant’s argument, the Supreme Court of Kansas (“KSC”) determined that the defendant provided no legal support for his assertion that he had a right to an expungement. Id. at 158. According to the KSC, the granting or denial of an application for expungement of a conviction was a judicial (court) function. Id. This meant that it was up to the court to determine whether they should grant or deny an expungement. Id. Additionally, the KSC found that the power to grant or deny an expungement required a judicial review and the court should use the same standard it used for granting probation, setting conditions for probation, and deciding whether probation should be revoked in making their decision. Id. However, the KSC noted that the limitations imposed by the expungement statute created by the Kansas lawmakers must be obeyed by the court when making a decision. Id. Moreover, the court stated expungement was not an automatic procedure—meaning the defendant was not expunged automatically after he completed his two years of probation. Id.

In sum, it was up to the court to decide whether to grant or deny the defendant’s appeal for expungement. Id.