WHAT DOES AN EXPUNGEMENT REALLY DO?

State v. Divine, 246 P.3d 692 (Kan. 2011).

This case explored the topic of expungement and what the effect of an expungement was on a defendant. In exploring this issue, the court concluded that the general effect of an expungement order was that the individual asking for expungement shall thereafter be treated as not having been arrested, convicted, or diverted of the crime. Id. at 692.

In 2003, the defendant pled guilty to lewd and offensive sexual behavior. Id. at 693. The district court convicted the defendant and placed him on probation. Id. Thereafter, in line with the Kansas Offender Registration Act (KORA), the defendant was required to register as a sex offender for 10 years. Id. Additionally, the registration requirement was made a condition of the defendant’s probation. Id. Ultimately, the defendant completed his probation in 2005 and continued to register as a sex offender. Id. In 2008, the defendant filed a petition for expungement of his conviction. Id. Consequently, the court accepted the petition and the expungement order was filed on November 26, 2008. Id. After being expunged, the defendant filed a motion to lift the registration requirement, arguing that the expungement had erased the conviction for which he was required to register. Id. However, the district court found that Kansas law prevented the court from granting the defendant’s motion and the defendant was ordered to continue to register as a sex offender until the 10 years were up in 2013. Id. As a result, the defendant appealed the district court’s decision and the Kansas Supreme Court heard the case. Id.

In order to defend his argument, the defendant focused on the expungement statute created by the Kansas legislation. Id. at 740. The statute provided that “after the order of expungement was entered, the petitioner (defendant) shall be treated as not having been arrested, convicted or diverted of the crime.” Id. Therefore, the defendant’s argument was that if he was to be treated as not having been convicted of lewd and offensive sexual behavior, then he was not an offender required to register under the KORA definitions. Id. Moreover, the defendant acknowledged that the expungement statement—that he shall be treated as not having been convicted—was followed by a list of exceptions describing the circumstances under which the expunged conviction may be considered or where the defendant must reveal that the conviction occurred. Id. Nonetheless, the defendant pointed out that the list did not include an exception for disclosure to the sexual offender registry. Id.

In response, the State focused on the KORA which stated, “No person required to register as an offender in line with the KORA shall be granted an order relieving the offender of the further registration under this act.” Id. at 741. In short, the State argued the court did not have the authority to grant the defendant relief from the registration requirement. Id.

After reviewing both arguments, the court noted the general rule of the expungement statute was that an expungement order resulted in the defendant being treated as not having been convicted. Id. at 742. Further, the court stated the exceptions to that general rule were specifically set forth in the statute and the legislature could have, but did not, specify an exception for KORA registration. Id. Therefore, the court held the expungement of the defendant’s conviction terminated his status as an offender required to register under KORA. Id. at 743.