Application to set aside a conviction; MCL 780.621(14); Balancing the circumstances & behavior of a petitioner against the public welfare; People v Boulding; “Public” & “public welfare”

The court held that the Court of Appeals erred by finding the statements of two individuals comprised the “public welfare,” and abused its discretion by denying defendant’s application to set aside his conviction. Thus, it reversed both the judgment of the Court of Appeals and the trial court’s decision to deny his application to set aside his conviction, and remanded to the trial court for entry of an order in accordance with MCL 780.621. He was charged with CSC II, indecent exposure, and third-degree child abuse for “groping his two stepdaughters’ breasts and masturbating in their presence when they were between 13 and 16 years old.” He pled no contest to one count of third-degree child abuse in exchange for the dismissal of the original charges. The trial court sentenced him to 9 months in jail and 2 years of probation and required that he register as a sex offender. After completing probation, he applied to have his conviction set aside. The two victims submitted written statements objecting to his application, and the trial court denied it. He filed a second application to set aside his conviction, concurrently petitioning to discontinue sex offender registration. The trial court granted his motion to discontinue sex offender registration, but denied his application to set aside his conviction. He later filed a third application, which was also denied. The Court of Appeals affirmed, finding the trial court properly exercised its discretion in determining that setting aside his “conviction was not consistent with the public welfare given the ongoing negative impact of defendant’s actions on his victims.” On appeal, the court held that the trial court abused its discretion when it concluded that granting defendant’s application to set aside his conviction would not be consistent with the public welfare. The trial court reached this decision on the basis that “the two victims remained affected by defendant’s actions. Although the two victims were understandably unsupportive of defendant’s request to set aside his conviction, we reiterate that the public welfare must consist of more than the subjective opinions of the two victims. Without more, we conclude that their objections are insufficient to support the trial court’s conclusion that granting defendant’s application to set aside his conviction was not consistent with the public welfare.” Public welfare “cannot be determined by looking solely to the impact of setting aside a conviction on individuals or a limited class of people.” In addition, “no record evidence supported a finding that either the ‘circumstances and behavior’ of defendant or the ‘public welfare’ weighed in favor of denying defendant’s application.”

Concurring part and dissenting in part, Justice Zahra agreed with the majority that the trial court abused its discretion by denying defendant’s application. But he disagreed with the majority’s understanding of public welfare. “Whether two individuals compose the public welfare is not relevant. What is relevant is whether the substance of the statements made by the two individuals and relied upon by the trial court provides a sufficient basis to conclude that expungement is not consistent with public welfare.”

Dissenting, Justice Viviano disagreed with the majority that the trial court abused its discretion by denying defendant’s application. He also disagreed with the majority that defendant was entitled to an expungement as a matter of law. “After interpreting the broad concept of the ‘public welfare’ as excluding the victims, the majority ignores the textual indications in the statute that the Legislature intended that victims be given an opportunity to provide input in the process.”