In re: Expungement Petition of Richard M.

In Re Expungement Petitions of Richard M., Nos. 700, 1435, September Term 2021.

STATUTES > CONSTRUCTION > IN GENERAL > INTENT > IN GENERAL

Interpretation of a statute and interpretation of a Maryland Rule are governed by the same
rules of construction.

STATUTES > CONSTRUCTION > PLAIN LANGUAGE; PLAIN, ORDINARY,
OR COMMON MEANING > IN GENERAL

When faced with question of statutory construction, the court looks first to plain meaning
of words of statute, with goal to ascertain and effectuate legislative intent.

STATUTES > CONSTRUCTION > PLAIN LANGUAGE; PLAIN, ORDINARY,
OR COMMON MEANING > NATURAL, OBVIOUS, ACCEPTED
MEANING

The court gives words of statute their ordinary and natural meaning.

STATUTES > CONSTRUCTION > PRESUMPTIONS AND INFERENCES AS TO
CONSTRUCTION > STATUTE AS A WHOLE; RELATION OF
PARTS TO WHOLE AND TO ONE ANOTHER > GIVING
EFFECT TO ENTIRE STATUTE AND ITS PARTS; HARMONY
AND SUPERFLUOUSNESS

When interpreting a statute, the court presumes that the Legislature intends its enactments
to operate together as a consistent and harmonious body of law, and thus, the court seeks
to reconcile and harmonize the parts of a statute, to the extent possible consistent with the
statute's object and scope.

STATUTES > CONSTRUCTION > IN GENERAL > INTENT > IN GENERAL

Court’s goal when construing a statute is to ascertain and effectuate the actual intent of the
legislature.

COURTS > ESTABLISHMENT, ORGANIZATION, AND PROCEDURE >RULES
OF COURT AND CONDUCT OF BUSINESS > OPERATIONS AND
EFFECT OF RULES > IN GENERAL
Just as the legislature may repeal a court-created rule, so too, an appeals court may, by rule,
overturn a conflicting statute enacted by the legislature governing legal practice or
procedure.

COURTS > ESTABLISHMENT, ORGANIZATION, AND PROCEDURE >RULES
OF COURT AND CONDUCT OF BUSINESS > OPERATIONS AND
EFFECT OF RULES > IN GENERAL

When there is a conflict between a statute and legal practice or procedure, the last enacted
statute or legal practice or procedure prevails. The Court of Appeals’ rule making authority,
however, is limited to the realm of procedure, and the Court may not enact a rule that
creates or removes a substantive (as contrasted with a procedural) right.

COURTS > ESTABLISHMENT, ORGANIZATION, AND PROCEDURE >RULES
OF COURT AND CONDUCT OF BUSINESS > OPERATIONS AND
EFFECT OF RULES > IN GENERAL

CP § 10-105(d)(2) and Rule 4-505(d) are in apparent conflict. Because both the statutory
subsection and the Rule govern the procedure a court should follow in ruling on an
expungement petition, we apply the canon of construction that the last enacted prevails.
Because Rule EX4 c was enacted subsequently to the enactment of Art. 27, § 737(d), and
neither the Rule nor the statute has been substantively changed during later
re-codifications, the current Rule 4-505(d) takes precedence over the current statute,
CP § 10-105(d)(2). Therefore, the circuit court in this case retained the discretion to deny
appellant’s expungement petition despite the State’s tardy response.

COURTS > ESTABLISHMENT, ORGANIZATION, AND PROCEDURE >RULES
OF COURT AND CONDUCT OF BUSINESS > OPERATIONS AND
EFFECT OF RULES > IN GENERAL

The Court of Appeals, in enacting former Rule EX4 and its successor, Rule 4-505,
properly acted within its rule-making authority and did not either create or remove a
substantive right of a petitioner such as appellant. For the purposes of Appeal No. 700,
the substantive rights created by the expungement statute are contained in CP §§
10-105(a) and 10-107, which define those persons eligible to seek expungement. In
contrast, those parts of the statutory scheme establishing how and where an expungement
petition may be filed, and the actions the State and the circuit court should follow in
response to a petition, are procedural. Because CP § 10-105(d)(2), which sets forth the
procedure a court should follow after a petition is filed, and the State fails to file a timely
objection, it does not establish a substantive right, it (and its statutory antecedent, former
Art. 27, § 737(d)) was subject to amendment under the rule-making authority of the Court
of Appeals.
CRIMINAL LAW > CRIMINAL RECORDS > IN GENERAL > EXPUNGEMENT
OR CORRECTION; EFFECT OF ACQUITTAL OR
DISMISSAL > IN GENERAL

Criminal Procedure Article (“CP”), § 10-105(d)(2), which provides, “Unless the State’s
Attorney files an objection to the petition for expungement within [thirty] days after the
petition is served, the court shall pass an order requiring the expungement of all police
records and court records about the charge[,]” is substantively unchanged from the original
expungement statute, Art. 27, § 737(d). Both versions of the statute appear to require that
a court grant an expungement petition if the State fails to file a timely objection, even if
the petitioner is otherwise ineligible.

CRIMINAL LAW > CRIMINAL RECORDS > IN GENERAL > EXPUNGEMENT
OR CORRECTION; EFFECT OF ACQUITTAL OR
DISMISSAL > IN GENERAL

Maryland Rule 4-505(d), which provides, “The failure of a law enforcement agency or
State’s Attorney to file an answer within the [thirty] day period constitutes a consent to the
expungement as requested[,]” is substantively unchanged from Maryland Rule EX4 c. The
Rule treats the State’s failure to file a timely objection as consent to the grant of an
expungement petition; but a court retains discretion to refuse to enter into a consent
judgment.

CRIMINAL LAW > CRIMINAL RECORDS > IN GENERAL > EXPUNGEMENT
OR CORRECTION; EFFECT OF ACQUITTAL OR
DISMISSAL > IN GENERAL

Under Md. Rule 4-508(c), an expungement order is a final judgment.

CRIMINAL LAW > CRIMINAL RECORDS > IN GENERAL > EXPUNGEMENT
OR CORRECTION; EFFECT OF ACQUITTAL OR
DISMISSAL > IN GENERAL

Regardless of whether the civil rule, Maryland Rule 2-535(b), or the criminal rule,
Maryland Rule 4-345(b), would apply in an expungement case, the State’s “Motion for
Appropriate Relief” in Appeal No. 1435 properly could have been granted only on grounds
of fraud, mistake, or irregularity. Because none of those grounds applies here, the circuit
court’s order granting the State’s “Motion for Appropriate Relief” must be vacated, leaving
in effect its previous order granting expungement.

CRIMINAL LAW > CRIMINAL RECORDS > IN GENERAL > EXPUNGEMENT
OR CORRECTION; EFFECT OF ACQUITTAL OR
DISMISSAL > IN GENERAL
If a person is convicted of a crime, prior nolle prossed criminal informations or indictments
are not eligible for expungement.
Circuit Court for Wicomico County
Case Nos. C-22-CR-17-000029, C-22-CR-17-000042

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Consolidated Appeals
No. 700
No. 1435
September Term, 2021

______________________________________

IN RE EXPUNGEMENT PETITIONS OF

RICHARD M.

______________________________________

Reed,
Beachley,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Reed, J.
______________________________________

Filed: December 7, 2022

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2022-12-07 09:49-05:00

Gregory Hilton, Clerk
Appellant, Richard M.,1 appeals from the denial of his petitions for expungement in

two interrelated cases. In Appeal No. 700, he raises two questions for this Court’s

consideration:

1. Did the circuit court violate appellant’s Fourteenth Amendment right to
procedural due process?

2. Did the circuit court abuse its discretion in granting the State’s objection
and denying his expungement petition?

In Appeal No. 1435, he raises three more questions for this Court’s consideration:

1. Did the circuit court violate appellant’s Fourteenth Amendment right to
procedural due process in considering and granting the State’s untimely
motion for appropriate relief and rescinding the expungement order it had
previously granted?

2. Did the circuit court violate appellant’s Fourteenth Amendment right to
procedural due process in accepting the State’s untimely response to his
expungement petition?

3. Did the circuit court err in considering the State’s motion for appropriate
relief because it lacked jurisdiction to do so?

For the reasons that follow, we affirm in Appeal No. 700 but vacate and remand with

instructions in Appeal No. 1435.

BACKGROUND

Facts Common to Both Appeals

1
Throughout this opinion, the “last name of the expungement petitioner shall not
be used in any opinion, oral argument, brief, record extract, petition, or other document
pertaining to the appeal that is generally available to the public.” Md. Rule 8-124(c).

1
Appellant, with several others, committed an armed robbery at the Salisbury,

Maryland branch of the Bank of Delmarva in December 2016. [Richard M.] v. State of

Maryland, No. 704, Sept. Term, 2018, at 1-4 (filed Aug. 23, 2019). The following month,

on January 17, 2017, a criminal information was filed, in Case No. C-22-CR-17-000029

(“Case No. 029”), charging appellant with thirty-eight offenses2 related to that bank

robbery. One week later, an indictment was filed, in Case No. C-22-CR-17-000042 (“Case

No. 042”), charging appellant with thirty-four offenses arising from the same December

2016 bank robbery. Several weeks after that, on February 16, 2017, nolle prosequi was

entered as to the criminal information. Then, on July 10, 2017, a superseding indictment

was filed, in Case No. C-22-CR-17-000477 (“Case No. 477”), charging appellant with

fifty-eight offenses arising from the same December 2016 bank robbery. One week later,

nolle prosequi was entered as to the indictment in Case No. 042. As of that date, July 17,

2017, appellant stood charged only under the indictment in Case No. 477.

The matter proceeded to a two-day jury trial in the Circuit Court for Wicomico

County in Case No. 477. [Richard M.] v. State of Maryland, supra, No. 704, Sept. Term,

2018, at 1. The jury found appellant guilty of sixteen counts of armed robbery and related

offenses, and the court sentenced him to prison terms totaling seventy years. Id. This Court

affirmed those judgments on appeal. Id.

Additional Facts Related to Appeal No. 700

2
The offenses charged all related to the December 2016 bank robbery and included
multiple counts of robbery, armed robbery, first- and second-degree assault, reckless
endangerment, false imprisonment, and theft, as well as weapons charges.
2
On April 13, 2021, appellant filed a petition for expungement in Case No. 029, on

the ground that a nolle prosequi had been entered in that case. In response, the Clerk of the

Circuit Court issued a notice to appellant, which stated:

For us to continue to process the expungement, we need you to list the
custodian of records and their addresses on the enclosed order. Custodians of
record would be any agency that you want the order sent to (ex. State’s
Attorney, Central Repository, District Court, any police agency involved in
the case, Wicomico County Detention Center, Court Reporters or any other
agency that you feel needs to be notified). Fill in all sections of the order,
except for those areas that are marked and return the requested information
within [twenty-one] days from the date of this letter to the Clerk of Circuit
Court for Wicomico County, P. O. Box 198, Salisbury, Maryland 21803-
0198. Failure to respond may result in the dismissal of your Petition. If you
have any questions, please call contact this office at [redacted].

Attached to that notice was a “FORM 4-508.1 ORDER FOR EXPUNGEMENT OF

RECORDS,” to enable appellant to comply with the clerk’s request.

The same day the expungement petition was filed, on April 13, 2021, that petition

was “[s]ent to all parties,” including “SAO, SPD, MSP, and WC.”3 The docket also

indicates that electronic service was effected that day. On May 11, 2021, the court received

and docketed appellant’s completed Form 4-508.1 in Case No. 029.

On May 24, 2021, the State answered the petition, objecting that the nolle prossed

charges arose from the same set of facts that resulted in appellant’s convictions in Case No.

477 and therefore, are ineligible for expungement. In an order dated June 14, 2021, the

3
We infer that these abbreviations refer to, respectively, the State’s Attorney’s
Office, the Salisbury Police Department, the Maryland State Police, and the Wicomico
County Sheriff’s Department.

3
circuit court denied appellant’s petition for expungement. A timely appeal was noted,

which became Appeal No. 700.4

Additional Facts Related to Appeal No. 1435

On April 13, 2021, the same day appellant filed the petition for expungement in

Case No. 029, he also filed a petition for expungement in Case No. 042, on the same ground

as in Case No. 029 (that is, that the charges had been nolle prossed). Here, too, the clerk

issued to appellant a notice, informing him that he had twenty-one days to return a

completed Form 4-508.1, listing all custodians of records and their addresses, so that the

clerk’s office could “continue to process the expungement[.]” This petition, too, was

“[s]ent to all parties,” including “SAO, SPD, MSP, and WC,” the same day it was filed.

Here, too, the record indicates that, on April 13, 2021, electronic service was effected and

that, on May 11, 2021, the court received and docketed appellant’s completed Form

4-508.1.

On May 13, 2021, the State answered the petition, advising the court (erroneously,

as we shall explain) that appellant “is entitled to expungement of the records in the instant

matter.” Thereafter, by order filed June 3, 2021, the circuit court granted the petition for

expungement in Case No. 042.

4
Although the Events/Docket suggest the appeal was filed 31 days after entry of the
order, the notice of appeal in the “Events” section of MDEC includes the letter that
appellant, an “unrepresented prisoner,” sent to the circuit court noting his appeal,
postmarked July 14, 2021, which is timely under the prison mailbox rule. Hackney v. State,
459 Md. 108, 127 (2018).

4
Apparently, because of the interrelatedness of the case with Case No. 477,5 the

Salisbury Police Department notified the State’s Attorney’s Office that it was having

difficulty in complying with the expungement order and “requested guidance.” On July 8,

2021, the State filed a “Motion for Appropriate Relief,” asserting that the charges in Case

No. 042 are ineligible for expungement because they had been nolle prossed and

re-charged6 in a case that resulted in convictions and that the court should rescind its June

3rd order, which had granted expungement.

The circuit court did not immediately rule on the State’s motion. Appellant filed an

objection to the State’s motion, pointing out the State’s erroneous (but immaterial) reliance

on an unrelated case, and he subsequently filed a “Motion of Contempt,” seeking to compel

enforcement of the court’s June 3rd expungement order. Ultimately, on October 20, 2021,

the circuit court granted the State’s “Motion for Appropriate Relief” in Case No. 042 and

purported to rescind the June 3rd expungement order in that case, while at the same time

denying appellant’s “Motion of Contempt.” A timely appeal was noted, which became

Appeal No. 1435.

Additional Proceedings

During the pendency of these appeals, having noticed the common factual basis that

underlay them, we, on our own motion, consolidated the appeals in these cases.

5
Appellant is pursuing postconviction relief in Case No. 477.
6
The State’s motion erroneously asserted that Case No. 042 had been re-charged in
Case No. C-22-CR-17-000278 (a separate and unrelated case involving a different armed
robbery) instead of Case No. C-22-CR-17-000477, but that error is immaterial.

5
DISCUSSION

Standard of Review

At the outset, this Court recognizes that interpretation of a statute and interpretation

of a Maryland Rule are governed by the same rules of construction, Perez v. State, 420 Md.

57, 63 (2011); Dove v. State, 415 Md. 727, 738 (2010), and therefore, everything this Court

says in the following section about statutory interpretation applies equally to our

interpretation of the Maryland Rules.

Interpretation of a statute is a question of law that we review de novo. Bellard v.

State, 452 Md. 467, 480 (2017). The “cardinal rule” of statutory construction is “to

ascertain and effectuate the intent of the [l]egislature.” Watts v. State, 457 Md. 419, 430

(2018) (citations and quotations omitted). “We assume that the legislature’s intent is

expressed in the statutory language and thus our statutory interpretation focuses primarily

on the language of the statute to determine the purpose and intent of the General

Assembly.” Maddox v. State, 249 Md. App. 441, 452 (2021) (citation and quotation

omitted).

We begin “with the plain language of the statute, and ordinary, popular

understanding of the English language dictates interpretation of its terminology.” Maddox,

249 Md. App. at 452 (citation and quotation omitted). We do not “read statutory language

in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to

the isolated section alone.” State v. Bey, 452 Md. 255, 266 (2017) (citations and quotations

omitted). Thus, “the plain language must be viewed within the context of the statutory

scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in

6
enacting the statute.” Id. Moreover, we “presume that the Legislature intends its enactments

to operate together as a consistent and harmonious body of law, and, thus, we seek to

reconcile and harmonize the parts of a statute, to the extent possible consistent with the

statute’s object and scope.” Id.

“If the language of the statute is unambiguous and clearly consistent with the

statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we

apply the statute as written without resort to other rules of construction.” Id. at 265.

Otherwise, if the language of the statute is ambiguous, that is, if it is reasonably susceptible

of more than one meaning, we resolve that ambiguity “by searching for legislative intent

in other indicia, including the history of the legislation or other relevant sources intrinsic

and extrinsic to the legislative process.”7 Id. at 266.

Resolving Apparent Conflict Between a Statute and a Rule

There may be circumstances where a statute and a rule cover the same subject

matter, but the statute and the rule are in apparent conflict. “Just as the legislature may

repeal a court-created rule, so too, the Court [of Appeals] may, by rule, overturn a statute

enacted by the legislature governing legal practice or procedure.”8 Dan Friedman,9 The

7
We may, for example, consider “the structure of the statute, how it relates to other
laws, its general purpose and relative rationality and legal effect of various competing
constructions.” State v. Bey, 452 Md. 255, 266 (2017) (citations and quotations omitted).
8
The source of this authority is Article IV, Section 18(a) of the Constitution of
Maryland, which provides in part that the Maryland Rules “shall have the force of law until
rescinded, changed or modified by the Court of Appeals or otherwise by law.”
9
The Hon. Dan Friedman is now a member of this Court.

7
Maryland State Constitution: A Reference Guide 169 (2006). “When there is a conflict

between such a law and rule, the last enacted prevails.” Id. (citing 66 Op. Atty. Gen. 80

(May 14, 1981)); see Murphy v. Liberty Mut. Ins. Co., 478 Md. 333, 377-78 (2022)

(observing that, “under Article IV, § 18 [], when a rule and statute conflict in this area [i.e.,

regulation of the method by which litigants exercise a right of action], the last enacted

provision prevails”).

The Court of Appeals’ rule-making authority, however, is limited to the realm of

procedure, and the Court may not enact a rule that creates or removes a substantive (as

contrasted with a procedural) right. See, e.g., Consolidated Constr. Servs., Inc. v. Simpson,

372 Md. 434, 451 (2002) (observing that the Maryland Constitution “does not confer upon

[the] Court [of Appeals] the power to, by rule, add substantive elements to causes of

action”); State v. Kanaras, 357 Md. 170, 183 (1999) (observing that it is “doubtful” that

the Court’s “rule-making authority would extend to the creation of a separate cause of

action”). Two decisions of the Court of Appeals, Consolidated Construction, 372 Md. 434,

and Murphy, 478 Md. 333, illustrate, respectively, the improper and proper use of the Court

of Appeals’ rule-making authority, and we now briefly address them.

In Consolidated Construction, the Court considered a conflict between a statute and

a rule, both of which addressed the scope of property subject to garnishment. The statute,

Maryland Code (1974, 1998 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-305,

defined property subject to garnishment as “any property or credit, matured or unmatured,

which belong to a debtor.” At that time, Maryland Rule 2-645 (2002) defined property

8
subject to garnishment to include “any debt owed to the judgment debtor, whether

immediately payable, unmatured, or contingent.” (Emphasis added.)

The Court of Appeals declared that the Maryland Constitution “limits [its]

rule[-]making power to matters of procedure and practice” and “does not confer upon [the]

Court [of Appeals] the power to, by rule, add substantive elements to causes of action.”

Consolidated Constr., 372 Md. at 451. It therefore concluded that, in adopting Rule 2-645,

the Court had, albeit inadvertently, “exceeded” its rule-making authority by including,

within the category of property subject to garnishment, contingent debt, because the rule

thereby exposed a broader class of property to garnishment than the statute had allowed.

Id. at 451-52 & n.11.

In Murphy, the Court of Appeals addressed a challenge to an administrative order,

issued by the Chief Judge of the Court of Appeals in response to the COVID pandemic,

which temporarily tolled statutes of limitations in civil actions. The Court noted that a

statute of limitations “neither creates a right of action nor pertains to the merits of a cause

of action[,]” but rather, “regulates the plaintiff’s exercise of that right” and is therefore

procedural. Murphy, 478 Md. at 375. Accordingly, it held that the “adoption of rules

providing for the tolling of the statute of limitations in the event of an emergency fell within

the Court’s constitutional authority to adopt rules of practice and procedure” under Article

IV, Section 18. Murphy, 478 Md. at 379.

Appeal No. 700

The Parties’ Contentions

9
Appellant contends that the circuit court violated his rights to procedural due

process and equal protection of the laws under the Fourteenth Amendment and Article 24

of the Maryland Declaration of Rights because it “failed to adhere to” Maryland Code

(2001, 2018 Repl. Vol.), Criminal Procedure Article (“CP”), § 10-105(d)(2), before

denying the petition for expungement in Case No. 029. According to appellant, proper

application of section 10-105(d)(2) required the circuit court to grant him expungement in

that case because the State’s objection was untimely. He further contends that the circuit

court abused its discretion in granting the State’s objection and denying his petition for

expungement because, he maintains, he was “entitled” to expungement under

CP § 10-105(c)(1) (governing when an expungement petition may be filed) and was not

disqualified under CP § 10-105(e)(4)(i)-(ii) (governing when an objection to an

expungement petition is filed by a State’s Attorney).10

The State counters the appellant’s argument, declaring that the nolle prossed charges

in Case No. 029 are ineligible for expungement under CP § 10-107(a)(1) and (b)(1)

(governing when charges arise from the same incident, transaction, or set of facts), because

they were based upon the same facts as appellant’s convictions in Case No. 477. The State

further asserts that “the record does not indicate when [it] was served with” appellant’s pro

se petition, and therefore, “the record fails to support appellant’s claim that the State’s

objection was untimely.” But even if we deem that the State’s petition was untimely, the

10
The appellant availed himself of informal briefing and was invited to offer cases
or law but did not provide any cases or law.

10
State asserts that the circuit court nonetheless properly denied appellant’s petition under

CP § 10-105(e)(3), which provides that upon finding that a person “is not entitled to

expungement, the court shall deny the petition.”11 The State cites State v. Nelson, 156 Md.

App. 558, 567-68 (2004), which explains that two or more charges arising from the same

incident is a unit, and if a person is not entitled to expungement of one charge in a unit, the

person is not entitled to expungement of any other charge in the unit.

Analysis

The General Assembly first enacted an expungement statute in 1975. 1975 Md.

Laws, ch. 260 (codified at Article 27, §§ 735-741). That statute was approved April 22,

1975 and became effective July 1, 1975. Id. § 3 at 1304. From the beginning, and to the

current day, expungement under Maryland law is mandatory if certain criteria are satisfied.

One of the more noteworthy and peculiar features of the Maryland statutory scheme is the

limitation it places on the trial court’s authority.12 See Ward v. State, 37 Md. App. 34, 36

(1977) (observing that the statute “seems to lodge no discretion in the court, but to mandate

either granting or denying the relief, based upon statutorily defined entitlement, or the lack

11
In the alternative, the State asks that, if we find that the circuit court erred in
denying appellant’s petition in Case No. 029, we provide guidance for the circuit court on
remand. As we shall explain, the circuit court did not err in denying appellant’s petition in
this case. However, the same request for guidance arises in Appeal No. 1435, and we shall
address it infra during the discussion concerning that appeal.
12
In contrast with the Maryland scheme, many states leave the decision whether to
grant expungement to the court’s discretion. See, e.g., Ind. Code § 35-38-9-9(a), (b); N.J.
Stat. Ann. 2C:52-11; W. Va. Code § 61-11-25(d).

11
of it”).13 Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 737, provided, in this regard,

as follows:

(d) A copy of the petition [for expungement] shall be served on the State’s
attorney. Unless the State’s attorney files an objection to the petition within
[thirty] days after it is served on him, the court shall enter an order requiring
the expungement of police records and court records pertaining to the charge.

(e) If the State’s attorney files a timely objection to the petition, the court
shall conduct a hearing. If the court finds that the person is entitled to
expungement, it shall enter an order requiring the expungement of police
records and all court records pertaining to the charge. Otherwise, it shall deny
the petition. . . .

Later that same year, the Standing Committee on Rules of Practice and Procedure

of the Court of Appeals issued its 50th Rules Report, recommending adoption of a proposed

new Rule 1292, to govern expungement proceedings under the newly enacted statute. 2

Md. Reg. 1610 (Nov. 26, 1975). On February 10, 1976, the Court of Appeals, on its own

motion, redesignated the proposed rule “as special proceedings under Chapter 1100

Subtitle EX,” and, with some revisions, it adopted the new subtitle, effective April 1, 1976.

3 Md. Reg. 276 (Mar. 3, 1976). As relevant here, Maryland Rule (1976) EX4 provided as

follows:

a. Time for Filing.
1. Application.
Within thirty days after service of an application for expungement, the law
enforcement agency shall file an answer, if it has not previously filed a timely
Notice of Denial or if it wishes to assert additional reasons for denial at the
hearing, a copy of which shall be served on the applicant or his counsel of
record.
2. Petition.

13
As we shall see, this feature persists in the current statute.

12
Within thirty days after service of a petition for expungement, the State’s
Attorney shall file an answer, a copy of which shall be served on the applicant
or his counsel of record.

b. Contents.
1. Specific Grounds.
An answer objecting to expungement of records shall state in detail the
specific grounds for objection.
2. Consent May Be by Answer.
A law enforcement agency or State’s Attorney may by answer consent to the
expungement of an applicant’s or petitioner’s record.

c. Failure to File Deemed Consent.
The failure of a law enforcement agency or State’s Attorney to file an answer
within the thirty day period constitutes a consent to the expungement of the
applicant’s or petitioner’s records.

Whereas the statute seemingly required a court to grant an expungement petition if

the State failed to file a timely response, see Art. 27, § 737(d) (providing that “[u]nless the

State’s attorney files an objection to the petition within [thirty] days after it is served on

him, the court shall enter an order requiring the expungement of police records and court

records pertaining to the charge”), the rule seemingly was different, providing that the

State’s untimely response “constitutes a consent to the expungement of the applicant’s or

petitioner’s records.”14 Md. Rule EX4 c.

Although the scope of the expungement remedy has been expanded several times

since the original enactment of the statute,15 the procedural limitation on a trial court’s

14
In State v. Nelson, 156 Md. App. 558, 564-65 (2004), we referred to this provision,
recodified without substantive change at CP § 10-105(d)(2), as “waiver.”
15
Originally, expungement was available only in cases that did not result in a final
judgment of conviction. See Md. Code (1957, 1976 Repl. Vol.), Art. 27, § 737(a) (person
charged with a crime eligible for expungement if acquitted, the charge was dismissed,
(continued)
13
authority remains.16 Section 10-105 of the Criminal Procedure Article provides in pertinent

part17:

(a) A person who has been charged with the commission of a crime, including
a violation of the Transportation Article for which a term of imprisonment
may be imposed, or who has been charged with a civil offense or infraction,
except a juvenile offense, may file a petition listing relevant facts for
expungement of a police record, court record, or other record maintained by
the State or a political subdivision of the State if:

***

(4) a nolle prosequi or nolle prosequi with the requirement of drug or alcohol
treatment is entered;

***

(c)(1) Except as provided in paragraph (2) of this subsection, a petition for
expungement based on an acquittal, a nolle prosequi, or a dismissal may not
be filed within 3 years after the disposition, unless the petitioner files with
the petition a written general waiver and release of all the petitioner’s tort
claims arising from the charge.

probation before judgment was entered, nolle prosequi was entered, or the proceeding was
placed on the stet docket). Since that time, eligibility for expungement has been expanded
to include persons who, though convicted, have received a full gubernatorial pardon,
CP § 10-105(a)(8); to persons convicted of “nuisance crimes,” CP § 10-105(a)(9); and
most recently, under the Justice Reinvestment Act, to persons convicted of other
enumerated misdemeanors (and even a few felonies such as theft, burglary, and possession
with intent to distribute a controlled dangerous substance). CP § 10-110(a)(1)-(3).
16
See, e.g., Reid v. State, 239 Md. App. 1, 13 (2018) (noting that the current
expungement statute lodges “no discretion in the [trial] court”) (citations and quotations
omitted); Nelson, 156 Md. App. at 568 (same).
17
Amendments to the expungement statute, including CP § 10-105, were enacted in
the 2022 Session of the General Assembly, as part of the Cannabis Reform Act, and will
become effective, pursuant to Maryland Constitution, Art. II, § 17(b) (without the
Governor’s signature), contingent on the passage of a constitutional amendment. 2022 Md.
Laws, ch. 26, secs. 5, 14. Those statutory amendments have no relevance to this appeal.

14
***

(d)(1) Except as provided in § 10-105.1 of this subtitle, the court shall have
a copy of a petition for expungement served on the State’s Attorney.

(2) Unless the State’s Attorney files an objection to the petition for
expungement within [thirty] days after the petition is served, the court shall
pass an order requiring the expungement of all police records and court
records about the charge.

(e)(1) If the State’s Attorney files a timely objection to the petition, the court
shall hold a hearing.

(2) If the court at the hearing finds that the person is entitled to expungement,
the court shall order the expungement of all police records and court records
about the charge.

(3) If the court finds that the person is not entitled to expungement, the court
shall deny the petition.

(4) The person is not entitled to expungement if:

(i) the petition is based on the entry of probation before judgment, except a
probation before judgment for a crime where the act on which the conviction
is based is no longer a crime, and the person within [three] years of the entry
of the probation before judgment has been convicted of a crime other than a
minor traffic violation or a crime where the act on which the conviction is
based is no longer a crime; or

(ii) the person is a defendant in a pending criminal proceeding.

***

Section 10-107 of the Criminal Procedure Article also is relevant to this appeal and

provides:

(a)(1) In this subtitle, if two or more charges, other than one for a minor
traffic violation, arise from the same incident, transaction, or set of facts, they
are considered to be a unit.

(2) A charge for a minor traffic violation that arises from the same incident,
transaction, or set of facts as a charge in the unit is not a part of the unit.

15
(b)(1) If a person is not entitled to expungement of one charge or conviction
in a unit, the person is not entitled to expungement of any other charge or
conviction in the unit.

(2) The disposition of a charge for a minor traffic violation that arises from
the same incident, transaction, or set of facts as a charge in the unit does not
affect any right to expungement of a charge or conviction in the unit.

The current version of the implementing rule, Maryland Rule 4-505, is substantially

similar to its predecessor, former Rule EX4. The current rule provides:

(a) Answer to Application. Within [thirty] days after service of an
application for expungement, if the law enforcement agency objects to the
expungement, the agency shall file an answer and serve a copy on the
applicant or the attorney of record.

(b) Answer to Petition. Within [thirty] days after service of a petition for
expungement, the State’s Attorney shall file an answer, and serve a copy on
the petitioner or the attorney of record.

(c) Contents. An answer objecting to expungement of records shall state in
detail the specific grounds for objection. A law enforcement agency or
State’s Attorney may by answer consent to the expungement of an
applicant’s or petitioner’s record.

(d) Effect of Failure to Answer. The failure of a law enforcement agency
or State’s Attorney to file an answer within the [thirty] day period constitutes
a consent to the expungement as requested.

There is a conflict between CP § 10-105 and Maryland Rule 4-505, which traces all

the way back to the original statute and rule.18 The statute appears to require a circuit court

18
The operative language in CP § 10-105(d)(2) was enacted in 2001, without
substantive change from former Art. 27, § 737(d), as part of the code recodification project.
2001 Md. Laws, ch. 10, § 2. Likewise, Maryland Rule 4-505 was adopted in 1984, without
substantive change from former Rule EX4, as part of the 1984 rules recodification. Rules
Order, 11 Md. Reg. S-1 through S-126 (April 27, 1984).

16
to grant an expungement petition if the State fails to file a timely objection, whereas the

rule is couched in terms of the State’s “consent.”

It is settled law that a trial court may refuse to enter a consent judgment and that

such refusal “is reviewable for abuse of discretion.” Long v. Long, 371 Md. 72, 86 (2002)

(citations omitted). Moreover, under authority conferred by Article IV, Section 18(a) of the

Constitution of Maryland, the Court of Appeals “may, by rule, overturn a statute enacted

by the legislature governing legal practice or procedure.” Friedman, supra, at 169.

Furthermore, when “there is a conflict between such a law and rule, the last enacted

prevails.” Id. (citing 66 Op. Atty. Gen. 80 (May 14, 1981)).

The Court of Appeals adopted former Rule EX4, effective April 1, 1976, which was

later than the July 1, 1975 effective date of the expungement statute. And furthermore, the

operative provisions of both the statute and the enabling rule, which are now

CP 10-105(d)(2) and Maryland Rule 4-505, have remained unchanged ever since.

Accordingly, we hold that the Court of Appeals, in adopting former Rule EX4 and current

Rule 4-505, effectively amended the expungement statute, so that, notwithstanding its

mandatory language, seemingly requiring a trial court to grant expungement if the State

fails to file a timely objection to a petition, a trial court retains discretion to deny a petition,

to the same extent that it has discretion to refuse to enter a consent judgment. Long, 371

Md. at 86.

We further note that the Court of Appeals, in enacting former Rule EX4 and its

successor, Rule 4-505, properly acted within its rule-making authority and did not either

create or remove a substantive right of a petitioner such as appellant. For the purposes of

17
this case, the substantive rights created by the expungement statute are contained in

CP §§ 10-105(a) and 10-107, which define those persons eligible to seek expungement.19

In contrast, those parts of the statutory scheme establishing how and where an

expungement petition may be filed, and the actions the State and the circuit court should

follow in response to a petition, are procedural. Because CP § 10-105(d)(2), which sets

forth the procedure a court should follow after a petition is filed, and the State fails to file

a timely objection, does not establish a substantive right, it (and its statutory antecedent,

former Art. 27, § 737(d)) was subject to amendment under the rule-making authority of the

Court of Appeals.

Here, in Case No. 029, the circuit court’s docket entries unambiguously state that

appellant’s expungement petition was filed April 13, 2021, that electronic service was

effected that same day, and that the State’s objection was filed more than thirty days after

the petition was served, on May 24, 2021. Thus, the State consented to expungement in

Case No. 029, and the circuit court’s authority to refuse to enter a consent judgment and,

instead, deny appellant’s petition turns on whether it abused its discretion in doing so.

Under CP § 10-107(a)(1), “if two or more charges, other than one for a minor traffic

violation, arise from the same incident, transaction, or set of facts, they are considered to

be a unit.” Thus, the charges under Case No. 029 and Case No. 477 are a unit. Under

19
In a related vein, when the General Assembly enacted CP § 10-110 as part of the
Justice Reinvestment Act, 2016 Md. Laws, ch. 515, thereby expanding the list of
convictions eligible for expungement, it was creating substantive rights that previously did
not exist.

18
CP § 10-107(b)(1), if “a person is not entitled to expungement of one charge or conviction

in a unit, the person is not entitled to expungement of any other charge or conviction in the

unit.” See Nelson, 156 Md. App. at 567-68. Plainly, the charges in Case No. 477 are

ineligible for expungement. Therefore, under CP 10-107(a)(1) and (b)(1), also ineligible

are the charges in Case No. 029.

“An abuse of discretion exists ‘where no reasonable person would take the view

adopted by the [trial] court, or when the court acts without reference to any guiding rules

or principles.’” Cagle v. State, 462 Md. 67, 75 (2018) (quoting Alexis v. State, 437 Md.

457, 478 (2014)). Given that the charges in Case No. 029 are ineligible for expungement,

we cannot say that the circuit court acted unreasonably or “without reference to any guiding

rules or principles” in denying appellant’s petition in Case No. 029. Therefore, the court

did not abuse its discretion in doing so.20 For the same reason, we reject appellant’s

contention that the circuit court denied him due process of law. Where the appellant was

ineligible for expungement and the court followed the governing Rule there is no denial of

due process or the equal protection of the laws.

Appeal No. 1435

20
In passing, we note that our holding does not rely upon CP § 10-105(e)(3), and
we reject the State’s interpretation of that subsection, which, by our reading of the statute,
applies only to a case in which, unlike here, the State has filed a timely objection and the
circuit court then holds a hearing on the petition.

19
In the interest of brevity, we need not set forth a detailed summary of the parties’

contentions in Appeal No. 1435, because, in the underlying case, Case No. 042, the

following procedural facts are uncontroverted:

1. On April 13, 2021, appellant filed a petition for expungement in Case No.
042.

2. On May 13, 2021, the State filed a timely response, averring that appellant
“is entitled to expungement of the records in the instant matter.”

3. On June 3, 2021, the circuit court issued an order of expungement in Case
No. 042.

4. On July 8, 2021, the State filed a “Motion for Appropriate Relief,”
asserting that the charges in Case No. 042 are ineligible for expungement and
requesting that the court rescind its June 3rd order.

5. On October 20, 2021, the circuit court granted the State’s “Motion for
Appropriate Relief” in Case No. 042 and purported to rescind the June 3rd
expungement order in that case.

The key facts here are that the June 3rd expungement order was a final judgment,

Md. Rule 4-508(c), and the State filed its “Motion for Appropriate Relief” more than thirty

days after entry of judgment. Therefore, the circuit court had authority to revise its

judgment only on grounds of “fraud, mistake, or irregularity.”21 The State concedes that no

such basis exists in this case, given the exceedingly narrow scope of “fraud, mistake, or

irregularity.” See, e.g., Powell v. Breslin, 430 Md. 52, 71-72 (2013) (discussing the narrow

21
It is unnecessary for us to determine whether an expungement proceeding is a
collateral, civil action, or if it is a part of the original criminal case. If the former is true,
then Rule 2-535(b) applies, and if the latter is true, then Rule 4-345(b) applies. Those
provisions, however, are substantially identical. Bereska v. State, 194 Md. 664, 690 (2010);
Minger v. State, 157 Md. App. 157, 172 (2004).

20
grounds for relief from an enrolled judgment afforded under “fraud, mistake, or

irregularity”). We accept that concession, and we therefore conclude that the circuit court

lacked the authority to issue its October 20th order. Accordingly, the circuit court’s June

3rd order of expungement in Case No. 042 remains in effect, even though the charges in

that case are ineligible for expungement under CP § 10-107(a)(1) and (b)(1). Therefore,

we turn next to consider what actions are appropriate on remand so as to minimize the

damage ensuing from the erroneous grant of expungement in this case.

Expungement is defined by statute:

“Expungement” with respect to a court record or a police record means
removal from public inspection:

(1) by obliteration;

(2) by removal to a separate secure area to which persons who
do not have a legitimate reason for access are denied access; or

(3) if access to a court record or police record can be obtained
only by reference to another court record or police record, by
the expungement of it or the part of it that provides access.

CP § 10-101(e).

Obviously, under the circumstances of this case, obliteration of records in Case No.

042 is inappropriate. Therefore, the only alternative is provided under subsections (e)(2)

and (e)(3). For further guidance, we turn to Maryland Rule 4-512 (“Disposition of

Expunged Records”):

Disposition of expunged records shall be as follows:

(a) Removal. The original of all court files and records ordered to be
expunged and any unitized microform of record shall be removed from their
usual and customary filing or storage location.

21
(b) Sealing--Unsealing. The original case file, and all other court records in
the clerk’s custody relating or referring to the action or proceeding, including
any unitized microform of records and certificates of compliance, shall be
sealed in a manila envelope on which the docket or case file number, and a
clerk’s Certificate of Expungement and Caution, shall be endorsed or
stamped . . .Sealed expunged records may be unsealed on written order of
court on good cause shown, and the court may by order permit access to
expunged records in the interest of justice.

***

(f) Minimum Period of Retention. Expunged records shall be retained by
the clerk for a minimum period of three years after the date the order for
expungement was entered. Expunged case files in multiple defendant cases
shall be retained by the clerk until the prison terms, if any, of all
co-defendants convicted in the action have been served.

(g) Destruction Method and Schedule. Upon the expiration of the
minimum retention period provided in section (f) of this Rule, and unless
otherwise ordered by the court, expunged records may be destroyed by the
clerk by shredding or other method of complete destruction. Upon
destruction of the expunged records, the name of the person whose court
records have been destroyed shall be deleted from the listing maintained
under section (c) of this Rule. Destruction of expunged records shall
promptly be reported to the Records Management Division of the Hall of
Records Commission on an appropriate destruction schedule.

Id. (emphasis added). Under Rule 4-512(b), the circuit court has the authority to unseal

expunged records by written order “on good cause shown,” and it has the authority to issue

an order permitting “access to expunged records in the interest of justice.” Given that the

records in Case No. 042 are co-mingled with those in Case No. 477, which resulted in

appellant’s convictions and which is the subject of ongoing postconviction proceedings,

we encourage the circuit court to exercise its authority under Rule 4-512(b) to ensure that

postconviction proceedings be conducted without hindrance. We further observe that Rule

4-512(g) confers authority on the circuit court to issue an order that the records in Case No.

22
042 be exempt from destruction for as long as necessary after the expiration of the

minimum retention period provided in Rule 4-512(f).

JUDGMENT OF THE CIRCUIT COURT
FOR WICOMICO COUNTY AFFIRMED
IN APPEAL NO. 700. JUDGMENT OF THE
CIRCUIT COURT FOR WICOMICO
COUNTY VACATED AND REMANDED IN
APPEAL NO. 1435 FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH
THIS OPINION. COSTS TO BE ASSESSED
EQUALLY BETWEEN THE PARTIES.

23