Horgan v. Sandy City

IN THE UTAH COURT OF APPEALS

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P.H., ) PER CURIAM DECISION1
)
Petitioner and Appellant, ) Case No. 20110614‐CA
)
v. ) FILED
) (July 27, 2012)
Sandy City, )
) 2012 UT App 210
Respondent and Appellee. )

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Third District, West Jordan Department, 091402783
The Honorable Andrew H. Stone

Attorneys: P.H., Salt Lake City, Appellant Pro Se

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Before Judges McHugh, Davis, and Christiansen.

¶1 P.H. appeals the denial of a petition to expunge records of his arrest,
investigation, and detention. See Utah Code Ann. § 77‐40‐104 (Supp. 2011). The district
court denied the petition after finding that it would be contrary to the public interest to
grant expungement. We affirm.

¶2 “Probation and expungement of one’s record are neither matters of right nor of
grace, but can only be granted when they appear to be compatible with the public
interest.” State v. Chambers, 533 P.2d 876, 878 (Utah 1975) (construing former Utah Code
section 77‐35‐17 (repealed July 1, 1980)). Decisions regarding expungement will be set
aside only if the courtʹs exercise of its broad discretion “is shown to have been abused,
arbitrary, or capricious.” Id. at 879.

1. This order has been modified in accordance with the Utah Supreme Court Standing
Order No. 12.
¶3 P.H.’s brief fails to comply with the provisions of rule 24 of the Utah Rules of
Appellate Procedure. First, it does not contain sufficient, accurate, and specific citations
to the record and transcript, as required by rule 24(e). See Utah R. App. P. 24(e). In
addition, a section captioned “Statement of Fact and Arguments” mixes statements that
are clearly argument with purported factual statements that are not supported by
adequate citations. Rule 24 states, “The argument shall contain the contentions and
reasons of the appellant with respect to the issues presented, including the grounds for
reviewing any issue not preserved in the trial court, with citations to the authorities,
statutes, and parts of the record relied on.” Id. R. 24(a)(9). We may decline to reach the
merits of an issue “when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” State v. Thomas, 961 P.2d 299,
305 (Utah 1998). When we decline to reach the merits of a case due to inadequate
briefing, we assume the correctness of the judgment. See English v. Standard Optical Co.,
814 P.2d 613, 619 (Utah Ct. App. 1991). Because P.H. did not provide sufficient analysis
or citation to legal authority, we decline to address his substantive arguments. See State
v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138. Accordingly, we address only his
procedural claims.

¶4 It is undisputed that P.H. was entitled to obtain a certificate of eligibility for
expungement of records from the Bureau of Criminal Identification. See Utah Code
Ann. § 77‐40‐104 (Supp. 2011). A petition for expungement and the certificate of
eligibility must be filed in the trial court that handled the criminal proceedings and be
served on the prosecuting agency. See id. § 77‐40‐107(1). If the court receives any
objection, it shall schedule a hearing. See id. § 77‐40‐107(6). Here, the district court
scheduled the required hearing on the petition for expungement after receiving the
victim’s written objection. The prosecutor was entitled to testify at the hearing. See id.
§ 77‐40‐107(6)(b) (stating that the petitioner, prosecuting attorney, victim, and any other
person who has relevant information may testify at the hearing). After any hearing,

[t]he court shall issue an order of expungement if it finds by
clear and convincing evidence that:
(a) the petition and certificate of eligibility are sufficient;
(b) the statutory requirements have been met; and
(c) it is not contrary to the interests of the public to grant the
expungement.

20110614‐CA 2
Id. § 77‐40‐107(8). Finally, “[t]he court shall review the petition, the certificate of
eligibility, and any written responses submitted regarding the petition.” Id.
§ 77‐40‐107(6)(c). The district court did not err in holding a hearing or in considering
the written statement of the victim or the arguments of the prosecutor.

¶5 While acknowledging that an expungement petition initiates a statutory civil
proceeding, P.H. nevertheless argues that he was entitled to expungement as a matter of
law and that Sandy City bore the burden of proof and was required to subpoena the
victim to appear and submit to cross‐examination. He also argues that the district court
improperly required him to demonstrate that expungement would not be contrary to
the public interest. These claims are without merit. The Utah Expungement Act
became effective in May 2010 and applies retroactively. See id. § 77‐40‐113. The district
court correctly determined that P.H. bore the burden of proving all statutory
prerequisites for expungement, including proving by clear and convincing evidence
that expungement “is not contrary to the interests of the public to grant the
expungement.” See id. § 77‐40‐107(6)(c).

¶6 The district court’s decision to deny expungement was not an abuse of its broad
discretion and was neither arbitrary nor capricious. Accordingly, we affirm.

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Carolyn B. McHugh,
Presiding Judge

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James Z. Davis, Judge

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Michele M. Christiansen, Judge

20110614‐CA 3