A person who violates the terms of probation following a misdemeanor conviction cannot have the conviction expunged even if he or she served the sentence for having violated probation, Maryland’s second highest court has ruled in interpreting the state’s expungement statute.
Under the state’s Criminal Procedure Article, a misdemeanor conviction may be expunged 10 years after the person “satisfies the sentence or sentences imposed for all convictions for which expungement is requested, including parole, probation, or mandatory supervision.”
In its reported decision, the Court of Special Appeals said probation has not been “satisfied” once it has been violated. Thus, expungement is unavailable for a probation violator regardless of whether the sentence for the violation was served, the appellate court added.
The court rendered its decision in saying a man’s request to have a 2008 conviction for theft of under $500 expunged was properly denied by a circuit court in 2020 because he had violated probation, for which he served four days in jail.
In its 3-0 ruling, the Court of Special Appeals rejected arguments from Abhishek I.’s lawyer that expungement remained available under the law because, after having violated probation, Abhishek I. satisfied the sentence imposed. Attorney Nancy S. Forster cited in vain other provisions of Maryland expungement law that referred to the “satisfactory completion” of an imposed sentence.
“Although he may have satisfied his four-day sentence for the violation of probation, he did not ‘satisfy’ his original sentence of one year of supervised probation,” Judge Kathryn Grill Graeff wrote for the court.
“Rather, within months, appellant violated the terms of his probation, which resulted in the court imposing the four-day sentence and closing his probation unsatisfactorily,” Graeff added. “Under these circumstances, appellant did not fulfill, comply with, or meet the terms of his probation, and pursuant to the plain meaning of CP § 10-110(c)(1), he did not ‘satisfy’ his sentence of probation.”
Forster stated via email Wednesday that no final decision has been made regarding an appeal to Maryland’s top court but added she hopes one is forthcoming.
The case “addresses a novel issue never addressed” by the Court of Appeals, added Forster, of Forster & LeCompte in Towson. “I believe CSA (the Court of Special Appeals) was wrong in concluding that the differing language concerning ‘satisfies’ and ‘satisfactory completion’ must be interpreted as equivalent.”
The Maryland attorney general’s office, which opposed Abhishek I.’s expungement request, declined to comment on the appellate court’s decision.
Graeff was joined in the opinion by Judges Melanie Shaw and Irma S. Raker, a retired jurist sitting by special assignment.
Abhishek I. pleaded guilty in August 2008 to having stolen property. He was sentenced to a year in prison, which was suspended in favor of a year of supervised probation.
The conditions of probation required that he obey all laws and not illegally possess any controlled substance. Abhishek I. subsequently pleaded guilty to violating probation after being arrested twice for possessing cannabis, according to the court’s opinion.
In December 2020, Abhishek I. filed a petition in Montgomery County Circuit Court to have the theft conviction expunged. The court denied the petition in August 2021, stating that Abhishek I. had not satisfied his sentence of probation.
The Court of Special Appeals agreed last month in In Re Expungement Petition of Abhishek I., No. 904 September Term 2021.