In re Borja

Opinion

I IN THE SUPERIOR COURT OF GUAM 2 TAP wi 31 ktt 3 IN THE MATTER OF JARED JOHN BORJA, SPECIAL PROCEDINGS 4 CASE NO. SP0010-14 Petitioner.

s DECISION AND ORDER 6

7 INTRODUCTION

8 This matter came before the HONORABLE VERNON P. PEREZ on January 31, 2014 9

10 Attorney Raymond Ilagan represented the Petitioner. Counsel for the Government was no

II present. Having reviewed the pleadings and arguments presented, the Court now issues the 12 following Decision and Order.

13 BACKGROUND

14 On March 9, 2006, Petitioner was indicted on Four Counts of Third Degree Criminal 15

16 Sexual Conduct (As a 2nd Degree Felony). Ver. Pet. ¶ 2. On April 24, 2007, Petitioner entered

17 a Deferred Plea Agreement to One Count of Third Degree Criminal Sexual Conduct (As a 2nd 18 Degree Felony) and was placed on probation for a period of three years. Ver. Pet. ¶ 3. On April 19 4, 2011, a Stipulation and Order for Dismissal was filed dismissing the case. Ver. Pet. ¶ 4.

20 Petitioner now seeks to have all records relative to that criminal matter expunged. Counsel for 21

22 the Petitioner informed the Court that the Government was served with notice prior to the 23 hearing. The Court still has not received any submission from the Government relative to the 24 Petition.

25 DISCUSSION

f7 26

27 Title 8 GCA §§ 11.10 and 11.11govern expungement. Section 11.10 provides:

28 The official records of the court, Attorney General and the police reports in connection therewith dealing with a violation by an adult of territorial law or a regulation having the force and effect of law shall be expunged when the subject Decision and Order SP0010-14;In the Matter of fared John Borja

Page 1 of 6

of the report is acquitted of the offenses charged, when the prosecuting attorney I decides not to prosecute the offense or when the time for commencing the 2 criminal action as prescribed by Chapter X of this Title has passed.

3 8 GCA § 11.10. Expungment "means the sealing of records to all persons outside of the la 4 enforcement agencies of Guam and federal agencies entitled thereto and a refusal by such 5 agencies to admit the existence of such records to persons not entitled to examine them. 8 GC A 6 § 11.11.

7

8 In the present case, Petitioner does not meet any of the three factors under § 11.10, which

9 would warrant an expungement of his records. First, Defendant entered into a deferred plea 10 agreement. Although the case was dismissed upon completion of the terms of his probation II Defendant was not "acquitted" for purposes of expungement. Second, by entering into a plea 12

13 agreement with the Government, Defendant cannot now argue that the prosecutor decided not tc

14 prosecute the offense. Finally, the third factor is inapplicable as the Government did in fad 15 commence criminal action in the underlying case. Petitioner argues that because the allege 16 victim is now 23, and because a prosecution for a felony criminal sexual conduct involving 17 person under the age of consent may be commenced up to three years after the minor reaches the 18

19 further age of consent, criminalthe

action

thirdwithin

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not Ccommenced any,

ourt, however

20

21 construes the third factor as a scenario, for example, whereby a case has been initiated via 22 complaint and subsequent police reports, but the Government then fails to commence a criminal 23 action accordingly. Thus the third factor is inapplicable.

24

25 The Court notes that expungement orders may issue in a criminal case where there is

26 deferred plea agreement. However the possibility of expungement must be specifically 27 negotiated and provided for in the plea agreement. People v. Ho, 2009 Guam 18 ¶ 32. At th e 28 January 31, 2014 hearing, counsel for Petitioner informed the Court that at the time of the

Decision and Order SP0010-14; In the Matter ofJared John Borja deferred plea agreement, the Attorney General's office had a policy to not include expungemeni I

2 provisions in the terms of the agreement. Therefore, Petitioner executed the plea agreemen

3 despite that fact. Notwithstanding, counsel for Petitioner further argued that the Court should 4 expunge Petitioner's records pursuant to the Court's inherent authority, as discussed by the 5 Guam Supreme Court in People v. Ho, 2009 Guam 18. In that case, the Guam Supreme Courl 6

7 reversed a trial court's expungement of Petitioner Ho's criminal records. Ho's underlyin g

8 conviction resulted from a negotiated plea agreement. The trial court entered judgment again 9 Ho for gambling under 9 GCA § 64.10(a)(1) and sentenced him to one year of unsupervised 10 probation, a fine of $1,000, and court costs. The trial court later expunged his records dealing II with that case, citing its inherent authority to expunge its own records as an extension of it 12

13 power to control judicial functions and its agents. Ho, ¶ 3.

14 In Ho, the Supreme Court did not definitively resolve the issue of whether trial court' 15 possess an inherent authority to expunge records, but it did discuss the relevant schools o 16 thought pertaining to that issue. There are two main categories: 1) jurisdictions holding that 17 courts do not have the power to expunge a criminal record unless a statute so provides; and 2 18

19 jurisdictions holding that, absent statutory authority, courts have some power to expunge

20 criminal record under certain circumstances. Ho, ¶ 11. The second category is further split int 21 two subsets. The first is that "expungement is appropriate upon a showing that either 22 constitutional right of petitioner has been violated or there is an extreme need or exception 23 circumstance that warrants expungement " Ho, ¶ 13. The second is that "courts can expunge 24 25 criminal record upon a showing of less than a constitutional error or an extreme necessity." The

26 trial court in Ho, based its grant of Ho's expungement request on this second subset. 27 In the instant case, Petitioner argues for expungement under both subsets. First 28 Petitioner argues that his constitutional rights are being violated because his records affect hi

Decision and Order SP0010-14; In the Matter of Jared John Borja

Page 3 of 6

employments rights, and his ability to join the military. Petitioner also a rgues an extreme

2 necessity for expungement because he will be terminated if he does not get his records expunged.

3 With regard to Petitioner's constitutional argument, the Court finds that it is not type o 4 constitutional violation contemplated for purposes of expungement. "In the context o 5 expunging records, violations of a n individual's constitutional rights typically involve the 6 individual denied due process or the severe infringement of his right to be let alone." Ho, ¶ 17.

7

s The court in Ho, acknowledge that in Colorado, expungements have been granted i n t he

9 following separate instances: "(1) where there was improper dissemination of a person's criminal 10 records, (2) where arrests have been deemed illegal, and (3) where the harm to an individual' s II right to privacy outweighed the public interest in the retention of such records." Id. (citing 12

13 Davidson v. Dill, 503 P.2d 157, 161 (Colo. 1972)). Petitioner's purported issues pertaining to hi s

14 employment is not the type of constitutional violation contemplated as Petitioner is not being 15 denied due process nor is there a severe infringement of his right to be let alone. The Courl 16 cannot, therefore, grant an expungement of Petitioner's records on that basis.

17 Next, the Court shall consider Petitioner's arguments regarding extreme necessity o 18

19 exceptional circumstances. In Ho, the trial court found that the Petitioner's threat of deportation

20 was an exceptional circumstance that qualified him for expungement. However, on appeal, the 21 Supreme Court disagreed, stating that "there must be evidence of the possibility that Ho will 22 actually be deported as a result of his criminal conviction-or the assurance that Ho will not be 23 deported if the expungement of his conviction record is granted." Ho, ¶ 27. In this case, counsel 24

25 for Petitioner represented to the Court that, without an expungement, Petitioner will be

26 terminated from his employment. That is because Petitioner's job at Wafts Constructio 27 sometimes involves projects on the military bases on Guam, which Petitioner has been denied 28 access, pursuant to the Sex Offender Registration and Notification Act of 2006. The Supreme

Decision and Order SPOO10-14;In the Matter of fared John Borja

Court in Ho, however, acknowledged that both the "Ninth Circuit and Seventh Circuit view mos

2 collateral civil consequences as insufficient to warrant expungment." Ho, ¶ 21. Thus

3 difficulties in securing employment, or in this case, maintaining employment, would not b 4 sufficient for the Court to expunge Petitioner's records, at least under the extreme necessity o 5 exceptional circumstance view.

6 The trial court in Ho, however, based its expungement on the minority view or the more 7

s lenient "balancing test" test approach. The trial court considered: (1) the extent that the 9 petitioner has demonstrated difficulties in securing employment or housing, (2) the seriousness 10 and nature of the offense, (3) the potential risk that the petitioner poses and how this affects th I1 public's right to access the records, (4) any additional offenses or rehabilitative efforts, and (5 12

13 other objective evidence of hardship under the circumstances when determining whether the

14 benefit of expungement is commensurate with societal burdens." Ho, ¶ 2 5 (citing State v.

15 K.M.M., 721 N.W.2d 330, 335 (Minn. Ct. App. 2006). Even under the more lenient approach 16 the Supreme Court ultimately held that Ho was still ineligible for expungement. The facts of th e 17 present case, however, are distinguishable from those in Ho. Most salient is the fact that Ho'

18

19 plea agreement still resulted in a conviction. In this case, Petitioner's completion of the terms

20 with underthe hisPetition.

deferred plea agreement

In Ho, resultedCourt the Supreme found it worthy in a dismissal. to mention Still, however, the that

Courtforhas

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21

22 deportation to qualify under the hardship factor, there needed to be actual evidence that H 23 would have been deported as a result of his criminal conviction. In the present case, there are n 24

25 sworn statements in the Court's file asserting a factual basis for the relief requested i.e. tha

26 Petitioner would be terminated from employment without the expungement; or that Petition 27 will be allowed access to the military bases with the expungement. Most of Petitioner'

28

Decision and Order SP0010-14; In the Matter of Jared John Borja assertions were received via counsel's representations to the Court. Without more, the Couri I

2 cannot make a conclusive determination as to whether expungement would be appropriate.

3 The motion to expunge will be held in abeyance pending further submissions to the 4 Court. Petitioner is instructed to provide the Court with additional information relative to the 5 factual bases for which the relief is requested.

6

7 As a final note, the Court is unsure of how exactly an expungement would impac

s Petitioner's situation. As mentioned above, 8 GCA § 11.11 still allows for federal la

9 enforcement agencies to access the records. What effect an expungement will have i 10 Petitioner's situation is uncertain.

II CONCLUSION

12

13 For the foregoing reasons, the Petition for Expungement will be HELD IN

14 ABEYANCE pending further submissions to the Court. 15 16 IT IS SO ORDERED this day of March _l' , 2014.

17

18

19 HONORABLE VERNON P. PEREZ 20 Judge, Superior Court of Guam 21 SERVICE MIA UIUffr irox I aFkw-wIedg- m a rawy of 8m Origi,J ncrt,,nrgp Pi recd .n bc 22

23

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25 r. Clerk, l upcnm utt.FUum

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A Deci on and Order SP0010-14; In the Matter of Jared John Borja