On appeal from Superior Court of New Jersey, Law Division, Mercer County, 97-12-229-I.
Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Thomas M. King appeals from an order vacating a prior order of February 21, 1991, that had expunged his conviction under Mercer County Indictment No. 814-77, for possession of a controlled dangerous substance with the intent to distribute, and "[u]nlawfully maintaining a place for Controlled Dangerous Substance [sic]."*fn1 Defendant also appeals from that provision of the order denying his application for expungement.
Defendant filed his petition for expungement on July 30, 1990. The only arrest mentioned in the petition for expungement was an arrest of March 14, 1978, in Ewing Township. On September 11, 1979, defendant entered pleas of guilty to two counts of the indictment that resulted from the March 14, 1978 arrest and he was sentenced on November 2, 1979, to two concurrent nine-month terms in the Mercer County Correction Center. The remaining three counts of the indictment were dismissed.
A hearing regarding defendant's petition for expungement was scheduled for October 12, 1990. Pursuant to N.J.S.A. 2C:52-10, defendant gave notice of the hearing to the persons specifically designated in that statute to receive notice. On October 1, 1990, the New Jersey State Police notified the Mercer County Prosecutor that defendant was ineligible for expungement because he failed to enumerate "at least seven other arrests" in his petition. That notification also referred to "three criminal and two disorderly persons convictions", rendering defendant ineligible for expungement. The parties appear to agree that a hearing did not take place on October 12, 1990. Although the attorney who represented defendant at the time the application was made*fn2 has certified that the judge signed the expungement order on the date fixed for the hearing, the order is dated February 21, 1991. We are unable to determine from the record presented to us on appeal whether the Mercer County Prosecutor's Office ever communicated the objection raised by the State Police to the judge, or what took place on October 12, 1990, February 21, 1991, or any other date regarding the expungement application. In the certification, defendant's attorney claims that the judge advised him he would sign the order because there appeared to be no opposition. The order was never filed or served on any of the designated law enforcement agencies.
In September 1997, defendant was charged with the fourth- degree offense of possession of a weapon by one previously convicted of a crime. N.J.S.A. 2C:39-7(b). Pursuant to a plea agreement, defendant entered a guilty plea and was sentenced to probation. Defendant appealed, contending that the trial judge failed to elicit a sufficient factual basis for the entry of the plea in light of his statement during the plea colloquy that he thought the predicate offense had been expunged. In an unpublished opinion, we reversed because defendant failed to give a sufficient factual basis to establish possession of the weapon. State v. King, A-4022-97, decided May 12, 1999. In dictum, we observed that if the predicate offense had indeed been expunged, it could not be used to form the basis of the charge. We then noted that if the expungement order had been signed, the accusation must be dismissed. We also said that we perceived "no impediment to defendant's now serving the February 21, 1990 order to those persons designated in that order."
While the remand proceedings were pending in Hunterdon County, the Hunterdon County Prosecutor and the Mercer County Prosecutor made a joint application in Mercer County to vacate the expungement order. The motion judge concluded that the State's application was timely filed, and that defendant was not eligible for expungement. In his opinion, the judge indicated that defendant was ineligible for expungement because his conviction was for possession of marijuana in excess of twenty-five grams with the intent to distribute.*fn3 Accordingly, he vacated the expungement order, considered the application on its merits, and denied it.
On this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN VACATING AN EXPUNGEMENT ORDER MORE THAN FIVE YEARS AFTER IT WAS SIGNED.
THE STATE'S MOTION TO VACATE WAS BARRED UNDER THE DOCTRINES OF EQUITABLE ...