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Michigan Expungement (Order to Set Aside a conviction)

SETTING ASIDE OR SEALING A RECORD OF CRIMINAL CONVICTION

Our greatest glory is not in never failing,
but in rising up every time we fail.

— Ralph Waldo Emerson-

New legislation passed effective March 14, 2017

Summarizing the new amendments to MCL §780.621, other than inserting dates for the prior amendment, the statute has not substantively changed from January 2015 which still includes the following:
A. Allows a person who was convicted of not more than one felony and not more than two misdemeanors to petition the convicting court to set aside the felony;
B. Allows a person WITH NO FELONY conviction, who was convicted of not more than two misdemeanors to petition the court(s) to set aside one or both of the misdemeanor convictions;
C. Requires a conviction that had been deferred and dismissed to be considered a misdemeanor conviction for purposes of eligibility for expunction;
D. Requires an application for expunction to include a list of all actions that had been deferred and dismissed;
E. Prohibits expunction for certain convictions;
F. Now makes fourth degree criminal sexual conduct (CSC IV) an excluded offense with one exception. The Statute allows an expunction for CSC IV weather an attempt or conviction, if the conviction occurred before the bill’s effective date (ie 1/12/2015) and the applicant had not been convicted of another offense except one or two minor offenses as defined by that section;
G. Revised the provision that establishes when an application for expunction may be filed;
H. Allows the Michigan Department of State Police (MSP) to make available to the Department of Corrections (DOC) a nonpublic record of a conviction that had been set aside, if a person with an expunged conviction applied to the DOC for employment.
I. Exempts the victim of a crime for which a conviction had been expunged from the criminal penalty for disclosing information concerning an expunged conviction.

NOTE: A separate application for each misdemeanor conviction is required if you are applying to have more than one misdemeanor set aside. A conviction on more than one count whether felony of misdemeanor, is considered a multiple “offense” conviction.

A Criminal “Expungement” is the process of going to court to ask a Judge to set aside and seal a criminal conviction from public record. The expungement process also gives clients the personal satisfaction of rebounding from a past mistake and error in judgment by making a “fresh start” in the eyes of the Michigan law enforcement and judicial system. A person must understand and consider this as a “privilege and conditional and is not a right” granted by the laws of Michigan for a “second chance”.   No such privilege is currently available for a Federal conviction.

Under current Michigan law, as amended Am. 2014, Act 335, Eff. Jan. 14, 2015 ;– Am. 2014, Act 463, Imd. Eff. Jan. 12, 2015, section (1) of MCL §780.621 states in part “a person who is convicted of not more than 1 offense, regardless of whether it was a differed may file an application with the convicting court for the entry of an order setting aside 1 or more convictions as follows:
(a) A person who is convicted of not more than 1 felony offense and not more than 2 misdemeanor offenses may petition the convicting court to set aside the felony offense or
(b) a person who is convicted of not more than 2 misdemeanor offenses and no other felony or misdemeanor offenses may petition the convicting court or the convicting courts to set aside 1 or both of the misdemeanor convictions”.

An application may be filed under section (1) by a person 18 or more years old, five (5) or more years after whichever of the following events occurs last:
(a) Imposition of the sentence for the conviction that the applicant seeks to set aside.
(b) Completion of probation imposed for the conviction that the applicant seeks to set aside.
(c) Discharge from parole imposed for the conviction that the applicant seeks to set aside.
(d) Completion of any term of imprisonment imposed for the conviction that the applicant seeks to set aside.

Additionally added by the amendments, section (4) allows a person 16 or older who is convicted of soliciting prostitution or an immoral act, admits a person or knowingly allows them to remain in a place, structure, house, building or vehicle for purpose of prostitution, or aids, assists, or abets another person to commit or offer to commit such an act (MCL §§750.448; 449 & 450), to apply and have that conviction set aside if he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation. A person may apply to have more than 1 conviction set aside under subsection (4) and the application may be filed at any time following the date of the conviction(s) to be set aside.

A newly added subsection (c) allows an exception for a conviction or attempt of 4th degree criminal sexual conduct [CSC IV] pursuant to MCL §750.520e of the Michigan penal code. A person convicted of a violation or an attempt of MCL §750.520e prior to January 12, 2015, may now file an application to set aside the conviction, provided the individual has not been convicted of another offense other than not more than 2 minor offenses. As used in this subdivision, “minor offense” as now defined means a misdemeanor or ordinance violation to which all of the following apply:
(i) The maximum permissible term of imprisonment does not exceed 90 days.
(ii) The maximum permissible fine is not more than $1,000.00.
(iii) The person who committed the offense is not more than 21 years old.(emphasis added)

NOTE: However, successful expungements do not extinguish the continued requirement for sex offender registration under SORA.

Another newly added section (6) allows a person to refill a denied application and states; “If a petition under this act is denied by the convicting court, a person shall not file another petition concerning the same conviction or convictions with the convicting court until 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.

Deferral/dismissals as misdemeanor convictions.
Currently, some misdemeanor offenses allow a first-time offender to have the conviction deferred; if the offender successfully completes probation, the charges are dismissed. In addition, offenders between the ages of 17 and 21 may be eligible to have misdemeanor and/or felony convictions deferred and dismissed if assigned youthful trainee status under the Holmes Youthful Trainee Act (HYTA). Though the person was not “convicted” of the crime, a non-public record of the deferral and dismissal is retained by law enforcement agencies. In addition, a deferral and dismissal is sometimes counted as a prior offense for the purposes of sentencing. The statute now considers such a deferral and dismissal (whether for a misdemeanor or a felony offense) as a misdemeanor when determining a person’s eligibility for expunction of a different felony or misdemeanor.

The offenses described in the statue that count as a misdemeanor conviction even though the charge was deferred and dismissed include:
(1) Section 703 of the Michigan Liquor Control Act (purchase, possession, and consumption by a minor).
(2) Section 1070(1)(B)(i) of the Revised Judicature Act (dismissals related to completion of drug treatment program).
(3) Offenses under the Code of Criminal Procedure dealing with (a) assignment ofyouthful trainees, (b) domestic violence, or (c) cases of delayed sentencing.
(4) Section 7411 of the Public Health Code relating to first time drug offenses.
(5) Section 350a of the Michigan Penal Code, which deals with the taking or retaining of a child by an adoptive or natural parent with the intent to conceal from another with parenting rights.
(6) Section 430 of the Penal Code, which deals with health professionals working under the influence of alcohol or controlled substances.
(7) A dismissal under any other Michigan law or of one of its political subdivisions similar in nature and applicability to these that provides for the deferral and dismissal of a felony or misdemeanor charge.

When a record is sealed, it does not appear as a “public record” or in a criminal background check. For most purposes of the law, after obtaining a court order to set aside a conviction ”the applicant shall be considered not to have been previously convicted”. MCL §780.622 (1). However, it is important to remember that a sealed record is not destroyed. By State law, the State Police must retain a nonpublic record of the order setting aside a conviction and of the record of the arrest, fingerprints, conviction, and sentence of the applicant in the case for which the order applies. This nonpublic record cannot be disclosed under the Freedom of Information Act and can only be made available to the courts if the petitioner is later sentenced on another conviction, an agency of the judicial branch of state government, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor and even then only for purposes allowed by statute (for instance, to show that a person who has filed an application to set aside a conviction has previously had a conviction set aside). The statute amended this provision to expand access to the nonpublic records to include the Department of Corrections, but only as specified in the act as described above or to determine if a person applying for employment with the department had had a conviction set aside. In addition under Federal law, Homeland Security and certain licensing agencies may have access to sealed court files for restricted purposes.

If the application to set aside applies to a conviction for an “assaultive crime”[1] under MCL §780.621 to §780.624 of the Michigan Compiled Laws, or a “serious misdemeanor” under MCL §780.621 to §780.624 of the Michigan Compiled Laws, and if the name of the victim is known by the prosecuting attorney, the prosecuting attorney is required to give the victim of the crime, written notice of the application and forward a copy of the application to the victim. The victim than has the right to appear or file documents that must be considered by the judge at the time set for hearing the motion. See MCL §780.772a & §780.827a


[1] An “assaultive crime” is now defined in MCL §770.9a; “serious misdemeanor” is now defined in MCL §780.811

BENEFITS OF AN EXPUNGEMENT:

YOU MAY LEGALLY SAY ON AN APPLICATION THAT YOU HAVE NEVER BEEN CONVICTED OF A CRIME!

An expungement of your criminal conviction will help you avoid the legal, economic, and social problems of a criminal record in several other ways:
Background Checks: Your felony will no longer appear when potential employers check your record so you can stop fearing or being embarrassed when someone does a background check on you.  If anyone does a background check on you, court law enforcement agency public records will indicate, “no criminal record exists”.
Civil Service: You will be eligible to serve on a jury, eligible for student loans, eligible for housing assistance; eligible for more types of professional licenses and certificates; or even eligible to run for a public office.
Voting: You will regain the right to vote in state elections.
Employment: Expunging felonies from your record will help you get that dream job.

Is it possible to have my felony record from 7 years ago cleared so I can purchase a firearm?

NOTE:Under federal law, the rights of felons to own firearms are governed by the relevant state jurisdiction’s restoration of felons’ civil rights, including the restoration of the unfettered rights to own and carry firearms. 18 U.S.C. 921(a)(20); 18 U.S.C. 922(g)(1); Caron v. United States,524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998); United States v. Green,109 FSupp2d 688, 690 (E.D.Mich., 2000).  For more info here is a link to Firearms Laws in Michigan.

MCL §750.224 (f); (felon-in-possession) recently amended to include ammunition (see HB 4715-4717) places felons in two different categories depending on whether the felon was convicted of a “felony” or a “specified felony” as defined in the statute.  You may be considered ineligible to possess a “firearm” as defined in MCL §750.222(d) (ie a pistol,shotgun or rifle), based on MCL §28.424 also recently amended (see HB 4717)without an expungment. However, under 224 (f),  if the felony, as defined in the statute was a violation of the law of this state, or of another state, or of the United States punishable by imprisonment for 4 years or more, or an attempt to violate such a law, and it was “non-specified”, you would be eligible to possess a firearm  license 3 years after,
1. all fines are paid,
2. the person has served all terms of imprisonment imposed,
3. all conditions of probation or parole are completed.

Even If the violation involved a “specified felony” as defined in MCL §750.224 (f),  you would be eligible to possess a firearm license, unless the expungment order, or pardon expressly provides that the person shall not possess a firearm.

Current Michigan law allows a criminal offender the privilege to request a court to expunge (remove the conviction) from the persons record if he or she satisfies all of the requirements of the Statute found at MCL §780.621.  Serious crimes punishable by up to life imprisonment(or an attempt to commit such a felony) like 1st or 2nd degree murder, kidnapping, armed robbery or aggravated assault or attempts, and Criminal Sexual Conduct CSC 1-3 convictions or attempts, (with the exception of CSC in the 4th degree);for offenses involving child sexually abusive materials; for offenses involving the use of a computer to commit numerous crimes including soliciting sex with a minor, stalking,causing death by explosives, or swatting;
RE: Offenses reportable to the Michigan Secretary of State:
Although MCL §257.732(22)prevents the expunction of a record maintained by the Secretary of State, the Michigan Court of Appeals in People v McCann, 314 Mich App 605; 887 NW2d 440 (2016), citing People v. Droog, 282 Mich App 68,72,73; 761 NW2d 822(2009) held the setting aside of a conviction under the Code of Criminal Procedure is much broader than the expunction of a violation reportable to the Secretary of State under the Vehicle Code. citing MCL §780.622(1). “The two statutes have to do with different subjects and, thus, their provisions are not in conflict.” Droog supra, at 73 (footnote omitted) What these cases arguably stand for is that although a court may not set aside an entry with the Secretary of State (SOS) in the driving record as mandated by the Motor Vehicle Code , a court  in its discretion may never the less set aside the underlying criminal conviction (felony or misdemeanor) pursuant to MCL §780.621, as it is separate and distinct from the SOS record.  The Vehicle Code limitation on a court’s authority to order the expunction of a Secretary of State record does not affect the authority granted by the Code of Criminal Procedure to set aside a criminal conviction or convictions for traffic offense’s reportable to the Secretary of State” Droog supra, at 73 . Many driving offenses, like driving on a suspended license, are misdemeanors, and therefore count as convictions. Presumably this would include felony convictions involving DUI and/or impaired driving.

“Be the change you want to see in the world.”
Mahatma Gandhi

PREPARING FOR THE HEARING:
A petition for expungement of a criminal record may not be filed until five years from the later of
(a) Imposition of the sentence for the conviction that the applicant seeks to set aside.
(b) Completion of probation imposed for the conviction that the applicant seeks to set aside.
(c) Discharge from parole imposed for the conviction that the applicant seeks to set aside.
(d) Completion of any term of imprisonment imposed for the conviction that the applicant seeks to set aside.
A typical case proceeds upon the filing of a petition by application and motion to set aside that must include certified copy(ies) of the record(s) of conviction the applicant wishes to set aside, and 1 set of fingerprints. Most courts will schedule a hearing date at the time you file the application. In the 3rd Circuit Court for Wayne County, a hearing is scheduled after the Michigan State Police and the Attorney General respond. If no hearing date was set by the court when you filed your application packet, you should contact the court to schedule a hearing date when you receive the report from the Michigan State Police after which a Notice of Hearing must then be sent by 1st class mail to the Michigan AG’s office and the county prosecutors office. After review by the Michigan Attorney Generals office and criminal background checks are completed by the Michigan State Police and the FBI (3-4 months), the case will be heard in the Circuit or District Court were the petitioner was convicted and sentenced. If the former sentencing judge is still presiding on the bench, that judge will hear the motion. Otherwise it will be reassigned. The hearing cannot be held until the court receives the Michigan State Police report required by MCL §780.621(5). The petitioner will be sworn in and may be asked to testify under oath. I recommend my clients to additionally submit written,signed, and dated letters of recommendation, or affidavits from any of petitioners past or present employers, counselors or class instructors. The Judge will review petitioners file and weigh and evaluate petitioners current “circumstances and behavior” against past conduct in view of petitioners beneficial interests to society and the “public welfare”. The petitioner has the burden of persuading the court that his or her actions and behavior since the conviction have been consistent with and demonstrate good conduct and in view of petitioners reputation within the community and people in which the petitioner resides, works and socializes. Such conduct takes into consideration petitioners community involvement and commitment to self-improvement. Examples that demonstrate an improved personal sense of direction or “changed life style” will be among the factors considered by the court.  These can include things such as the petitioners goals and accomplishments since the prior conviction. For some this may be a successful completion and continued commitment to maintaining personal rehabilitation gained from counseling or awareness programs; enrollment in and/or the completion of a high school certification, technical or college degree program; accomplishments through petitioners employment. Even just the fact a petitioner has been holding down a job or manages and maintains a family may be included among factors considered. Other things considered may include the petitioners active participation in voluntary non-profit type programs, extracurricular school, church or local community activities, or involvement in junior athletics or community sports programs. Any thing that evidences a demonstrated commitment to the petitioners active participation in programs beneficial to societies interest and away from behavior that lead to petitioners previous misconduct would be relevant to the courts consideration. The Judge must be convinced there has been a significant positive change away from petitioners previous conduct and behavior that resulted in the prior conviction. The judge must be confident the person deserves to have a second chance and confident it would be unlikely for petitioner to make the same mistake again. The court must make a sufficient analysis of the facts and circumstances in your case and cannot deny your request without an explanation on the record as to the basis of the determination. If the petitioner is successful in convincing the Judge they are worthy of a clean criminal record, the person will be granted an order setting aside the conviction.

Michigan Court Forms:

Application & Order to set aside (Adult conviction)

Application & Order to set aside (Juvenile conviction)

COMPLETION TIME:If you would like to “erase” or expunge a criminal conviction from your record, I can certainly assist you. The laws and requirements for setting aside a conviction in Michigan have recently been in transition and should be checked before you plan to apply.

Please keep in mind that sealing or expunging a record can take 5-7 months on average. The sooner you start the sooner it will be done. Clients often ask if it can be done faster. The answer is no and there is nothing that I can do as an attorney to complete the process faster. Several federal, state and county agencies must be notified and sign off generally before the court schedules the hearing. Each one of them takes their own respective time to complete their part.

Interested in a second chance?  Get a FREE MICHIGAN EXPUNGEMENT EVALUATION!

STEP 1 – DETERMINE IF YOU QUALIFY. Review the application form link above. Additional information can be obtained from the following links to the State Appellete Defenders Office (SADO) or Michigan self-help web site.

If you would like my assistance to prepare and file the application materials and appear with you at the hearing before the Judge, e-mail me at prj@prjoneslaw.com to discuss terms.

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