525
Argued and submitted August 21, 2019, vacated and remanded July 15, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEVIN DENNIS McVEIN,
Defendant-Appellant.
Clackamas County Circuit Court
CR0510834; A167947
471 P3d 796
In 2005, defendant admitted to having committed two counts of contempt of
court. Although contempt is not actually a “crime” and does not result in a “conviction,” the trial court records nevertheless indicated that he had pleaded guilty
to and been convicted of a crime. In 2018, defendant filed a motion to expunge
his records under ORS 137.225. The court denied his motion, reasoning that,
whatever the trial court record might say, ORS 137.225 only authorizes expungement of actual convictions. On appeal, defendant challenges the trial court’s
conclusion, arguing under State v. Simrin, 289 Or App 68,
408 P3d 244 (2017),
that he was entitled to expunge his records regardless of whether contempt is a
crime because they subject him to the same social stigma as any other criminal
defendant. Held: Defendant was entitled to expunge his records. Under Simrin,
eligibility for expungement turns on whether the content of a defendant’s records
subjects that defendant to stigma, not whether those records are accurate. Here,
defendant’s records clearly indicated that he had been convicted of a crime and
subjected him to the same stigma as any other defendant convicted of a crime.
Vacated and remanded.
Thomas J. Rastetter, Judge.
Andy Simrin argued the cause and filed the brief for
appellant. Also on the brief was Andy Simrin PC.
Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Mooney, Judge, and
Kamins, Judge.*
______________
* Kamins, J., vice Hadlock, J. pro tempore.
526 State v. McVein
KAMINS, J.
Vacated and remanded.
Cite as 305 Or App 525 (2020) 527
KAMINS, J.
Defendant appeals an order denying his motion
under ORS 137.225(1)(a) to expunge records indicating that
he was “convicted” of two counts of contempt. Under ORS
137.225(1)(a), a defendant who is convicted of a crime and
fully serves the sentence imposed can apply to the trial
court for an order setting aside the records of that conviction if the defendant meets several requirements. The trial
court concluded that defendant’s convictions were ineligible
for the relief statute because contempt is not technically a
“crime” and thus does not result in a “conviction.” See State
v. Coughlin, 258 Or App 882, 885-86,
311 P3d 988 (2013),
abrogated in part on other grounds by State v. J. N. L.,
268
Or App 802,
344 P3d 59 (2015) (“Contempt is not a crime.
Perhaps more to the point, we have repeatedly held that a
finding of contempt—even of punitive contempt—is not a
conviction.” (Citations omitted.)).
Defendant does not dispute that a finding of contempt is not a conviction. However, he maintains that ORS
137.225(1)(a) permits a court to expunge his records anyway
because, even if erroneous, they still indicate that he was
convicted of a crime and subject him to the same stigma
as any criminal defendant. We agree that, under the circumstances here, ORS 137.225(1)(a) allowed the trial court
to expunge defendant’s records. Accordingly, we vacate the
trial court’s order and remand for the court to determine
whether defendant meets the statute’s other requirements.
The facts underlying this appeal are undisputed.
In 2005, the Clackamas County District Attorney’s Office
filed a “Complaint for Imposition of Punitive Sanctions of
Contempt” charging defendant with five counts of contempt
for violation of a Family Abuse Prevention Act (FAPA)
restraining order filed in a domestic relations case. The
District Attorney’s filing prompted the opening of a misdemeanor case file in the Clackamas County Circuit Court
that was assigned a criminal case number. Defendant
pleaded guilty to two of the five contempt counts using a
form captioned “petition to enter plea of guilty.” That form
indicated that defendant “wish[ed] to plead guilty to and
admit [he] did commit the following crime(s): Counts 1+3
528 State v. McVein
Violation of FAPA Restraining Order.” The form also listed
all of the rights defendant would be giving up by pleading
guilty, including his right to a jury trial, right to be proven
guilty beyond a reasonable doubt, right to counsel, and right
to remain silent. The court entered a judgment indicating
that defendant had been convicted of two misdemeanors on
a plea of guilty and sentenced him to 18 months of probation on each count. It also imposed a unitary assessment
of $67 on each count, the amount required after conviction
for a misdemeanor under former ORS 137.290(1)(b) (2003),
repealed by Or Laws 2011, ch 597, § 118.
Defendant served his probation without incident
and, 13 years later, he filed this motion to expunge his
records under ORS 137.225(1)(a). At a hearing on the motion,
defendant argued that, even though contempt is not technically a “crime” and does not result in a “conviction,” he was
entitled to expungement anyway. He explained that in State
v. Simrin, 289 Or App 68, 76,
408 P3d 244 (2017), we held
that ORS 137.225 permits a court to expunge the records of
an individual erroneously charged with “misdemeanor contempt” because those records subject that individual to the
same social stigma as an actual criminal defendant. Here,
he argued, the trial court register, plea petition, and judgment all clearly indicate that he was convicted of a crime
and subject him to that exact stigma.
The trial court rejected his argument. The court
distinguished Simrin because, there, the defendant was
charged in a citation that indicated he had been accused
of a misdemeanor. Here, the “Complaint for Imposition of
Punitive Sanctions of Contempt” made no similar accusation.
On appeal, defendant challenges the trial court’s
conclusion. He argues that, even if the charging instrument
does not indicate that he was accused of a crime, the other
documents in the trial court record do. The state responds
that we have repeatedly held that a finding of contempt
does not qualify as a “conviction.” See, e.g., Coughlin, 258 Or
App at 885-86. It suggests instead that defendant’s remedy
would have been to appeal the conviction or file a motion in
the trial court to correct the judgment to accurately reflect
the nature of the offense.
Cite as
305 Or App 525 (2020) 529
Whether documents reflecting that defendant was
convicted in a contempt case qualify as a “conviction” for
purposes of expunging those documents under ORS 137.225
is an issue of statutory interpretation. See Simrin, 289 Or
App at 71. Accordingly, we look to the statute’s text, context,
and, if helpful, legislative history to determine the intent of
the legislature. State v. Gaines, 346 Or 160, 171-72,
206 P3d
1042 (2009).
Under ORS 137.225(1)(a), “any defendant who has
fully complied with and performed the sentence of the court
and whose conviction is described in subsection (5) of this
section” may apply by motion for an expungement. As the
state points out, we have repeatedly held for other purposes
that contempt is not a “crime” and does not result in a “conviction.” See, e.g., State v. Larrance, 256 Or App 850, 851,
302
P3d 481 (2013) (acknowledging that defendant’s judgment
was incorrect because contempt is not a crime and cannot be
the subject of a conviction); Johnston/State v. Jung,
255 Or
App 507, 508,
296 P3d 1287 (2013) (same); State v. Caldwell,
247 Or App 372, 375 n 1,
270 P3d 341 (2011) (same); State v.
Campbell,
246 Or App 683, 684,
267 P3d 205 (2011) (same).
We have even held that a finding of contempt does not qualify as a “conviction” for the purposes of a different paragraph of the same statute, former ORS 137.225(6)(b) (2013),
renumbered as ORS 137.225(7)(b) (2015). Coughlin,
258 Or
App at 888.
However, as we observed in Simrin, even though
cases like Coughlin have held that contempt is not legally
a “crime,” the legislature did not intend eligibility for ORS
137.225 to depend on the legal definitions of “crime” and
“conviction.” 289 Or App at 75. The legislature intended
ORS 137.225 to combat the stigma associated with the public nature of a record of arrest or conviction by providing
individuals with such a record the opportunity to purge it
and start fresh. Id. (citing State v. Gwyther, 57 Or App 34,
37,
643 P2d 1296 (1982)). Accordingly, eligibility turns on the
content, not the accuracy, of the public record. See
id. at 76.
To the extent that public records indicate that a defendant
was convicted of a crime and subject him to the same stigma
as any other criminal defendant, the legislature intended
530 State v. McVein
those records to fall within the purview of ORS 137.225.
See
id.
Here, as in Simrin, public record clearly indicates
that defendant was convicted of a crime. Indeed, the public record is a criminal case file with a criminal case number. The public records within that criminal case file reflect
that defendant admitted to having committed the “crime”
of contempt. Those public records also include his acknowledgment that, by pleading guilty to contempt, he was giving
up his rights as a defendant in a criminal case. Additional
records contained within that public criminal case file
include a judgment declaring that defendant had been “convicted” of two criminal misdemeanors and imposing a $67
unitary assessment on each count—the amount required by
statute after conviction for a misdemeanor. Even if erroneous because contempt is not legally a crime, those records
still subject defendant to the same stigma as any other
defendant convicted of a crime. That allows him to apply
for expungement under ORS 137.225(1)(a). Accordingly, we
vacate the trial court’s order denying defendant’s motion
and remand for a new hearing on whether defendant has
met the other requirements for expungement contained in
ORS 137.225(1)(a).
Vacated and remanded.
