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In Re Ronald C. Kollman

July 9, 2012

IN RE RONALD C. KOLLMAN, JR.,


On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Chief Justice Rabner

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)

In re Ronald C. Kollman, Jr.,

Petition for Expungement

(A-126-10) (067807)

Argued March 13, 2012

Decided July 9, 2012

RABNER, C.J., writing for a unanimous Court.

The Court considers whether a petition to expunge the criminal record of Ronald C. Kollman, Jr. was correctly denied based on the community's right to be aware of the record and the nature of the offense.

In 2000, undercover police officers allegedly purchased ecstasy from Kollman on three occasions. Kollman was arrested and indicted for three counts of distribution of a controlled dangerous substance (CDS) and other related crimes. In January 2001, Kollman pled guilty to one count of third-degree distribution of a CDS. As part of the plea agreement, the remaining charges were dismissed. In March 2001, the trial court sentenced Kollman to forty-five days in county jail, a three-year term of probation, and fines and penalties. Probation was terminated after eighteen months. Kollman successfully completed all conditions of probation in September 2002.

In March 2010, Kollman filed a petition to expunge his conviction. He offered proof that he had completed college, worked full-time while in school, and was active in various community service projects. He also provided twenty-one letters of support describing his work habits, community involvement, character, and personal growth in recent years. Kollman certified that he had not been in any further trouble with the law. The State opposed the petition based on the nature of Kollman's conviction and the community's need for continued access to his criminal record. The trial court determined that the State bore the burden of proving, by a preponderance of the evidence, that expungement was not in the public interest. Applying that standard, the judge denied the petition. Although the judge acknowledged Kollman's positive activities and behavior since completing probation, he concluded that expungement would not be consistent with the public interest because of the relatively serious nature of the offense and the community's right to be aware of it.

The Appellate Division affirmed. The panel agreed with the standard applied by the trial court and, although it commented that Kollman had led an exemplary life since his conviction, it found no abuse of discretion in the denial of the petition. The Supreme Court granted Kollman's petition for certification. 207 N.J. 189 (2011).

HELD: Defendants seeking relief under the statute's new five-year pathway to expungement have the burden of proving why expungement of a criminal record is in the public interest. Because petitioner appears to have met that burden, the Court reverses the denial of his expungement application and remands to the trial court to assess the petitioner's character and conduct as of the date of its new ruling.

1. To give a second chance to one-time offenders convicted of less serious offenses who have led law-abiding lives since conviction, the Legislature enacted a law that allows certain records to be expunged. Expungement means that criminal records are extracted and isolated. However, expunged records remain available to the courts, prosecutors, and probation officers to set bail, prepare presentence reports, and use at sentencing, and they may be provided to the Parole Board and the Department of Corrections in certain situations. (pp. 2; 10-11)

2. Prior to 2010, expungement was available for certain offenses if a petitioner proved that ten years had passed since the completion of the criminal sentence and there had been no additional convictions. Criminal records for homicide, kidnapping, aggravated sexual assault, robbery, arson, endangering the welfare of a child, perjury, and other serious crimes could not be expunged. The statute permitted expungement of certain CDS offenses only if they involved twenty-five or less grams of marijuana or five or less grams of hashish. If a petitioner met his burden of proof on the objective elements of the statute, expungement was presumed and the burden shifted to the State to prove that a prerequisite had not been met or that there was another statutory basis for denying relief. (pp. 12-14)

3. To promote employability, the Legislature amended the statute in 2010 to reduce the waiting period for certain cases to five years if there have been no additional convictions and if expungement is in the "public interest." The amendment also broadened the law to include any third- or fourth-degree CDS conviction. To decide whether expungement is in the "public interest," courts consider the "nature of the offense" and the applicant's "character and conduct since conviction." Courts also consider whether the need for the availability of records outweighs the desirability of expungement. Petitioners must establish the objective elements-the passage of five years, without an additional conviction, after committing a third- or fourth-degree CDS violation. Petitioners also bear the burden of proving that expungement is in the public interest and of demonstrating that the benefits of expungement outweigh the need for the records. If the State objects on statutory grounds, the burden of proof shifts to the State. (pp. 14-19)

4. The "nature of the offense" factor of the public-interest analysis examines undisputed or proven facts about the crime and its commission, including the definition, grade, and elements of an offense. Judges also may consider what the petitioner did, how and with whom he acted, and the harm he may have caused, along with any related charges that have been dismissed if the underlying facts have been substantiated or are undisputed. However, the statute does not allow judges to reject expungement applications based on generic grounds; for example, judges cannot add to the list of offenses that the Legislature has found too serious to qualify. For drug offenses that meet the statute's objective criteria, judges cannot rule out expungement by finding a particular drug too "serious." But courts may consider how many times the petitioner distributed drugs, whether the drugs were sold to children, whether a weapon was involved, and other relevant factors that are not in dispute or have been proven. (pp. 19-21)

5. To evaluate a petitioner's character and conduct since the conviction, courts may examine performance while in jail and on probation, and whether the petitioner engaged in activities that either enhanced or limited the risk of re-offending. Facts relating to a dismissed charge or an arrest that did not result in conviction may also offer insight into a petitioner's character and conduct. Courts may further consider conduct before the time of conviction to gauge whether the offense was aberrational. With regard to all of these factors, courts may only consider established or undisputed facts, not unproven allegations. If the State's argument extends beyond established facts already in the record and the petitioner contests those assertions, the State must present proofs to support its position. The court must make appropriate findings, after a hearing if necessary, before it can rely on a material fact that remains in dispute. To assist the court, an applicant must include with his petition the transcripts of plea and sentencing hearings and a copy of the presentence report. (pp. 21-24)

6. Kollman met the basic criteria that five years had passed since his conviction, he had not been convicted of any subsequent offenses, and he was convicted of a third-degree CDS offense. He also presented a certification and twenty-one letters to demonstrate that expungement would be in the public interest. The trial court denied the application based on the right of the community to be aware of the convictions and because of the "relatively serious nature of the offense." Such universal concerns could rule out expungement in all drug cases. Although the Legislature found all third- or fourth-degree CDS offenses eligible, the judge's ruling focused on the type of drug Kollman sold. The court also considered Kollman's multiple drug sales and his financial motives. The judge deemed unfavorable the fact that Kollman was employed when he sold the drugs and his desire to perform volunteer work with children, but those factors could have been considered in a more positive light. In any event, they should have been weighed alongside the substantial evidence of character and conduct since Kollman's conviction, which received little attention. (pp. 24-28)

7. Kollman has led an exemplary and law-abiding life since his conviction, which weighs heavily in favor of expungement. The Court remands to the trial court to weigh the relevant factors in light of the principles set forth in this opinion and to assess Kollman's character and conduct as of the date of its new ruling. If Kollman has committed another offense in the interim, he may no longer qualify for expungement. On the other hand, additional proof of rehabilitation would weigh further in his favor on the public-interest prong. (pp. 28-29)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.

JUSTICES LaVECCHIA, ALBIN, HOENS and PATTERSON, and JUDGE WEFING (temporarily assigned), join in CHIEF JUSTICE RABNER's opinion.

PETITION FOR EXPUNGEMENT.

Argued March 13, 2012

CHIEF JUSTICE RABNER delivered the opinion of the Court. Millions of adults nationwide have criminal records that affect their re-entry into society years after their sentence is complete. Criminal records can present barriers to employment, licensing, and housing, among other things.

To afford a second chance to one-time offenders convicted of less serious offenses, who have led law-abiding lives since conviction, the Legislature enacted a law that allows certain records to be expunged after ten years. N.J.S.A. 2C:52-2(a). In 2010, the Legislature amended the statute to broaden opportunities for expungement.

Under the revised law, defendants may apply for expungement five years after completing their sentence. N.J.S.A. 2C:52-2(a)(2). To decide whether expungement is in the "public interest" in those cases, as the statute requires, courts consider the "nature of the offense" as well as the applicant's "character and conduct since conviction." Ibid.

In this appeal, we clarify the factors that courts may consider as part of that fact-sensitive inquiry. We also conclude that defendants seeking expungement have the burden of proof to demonstrate why their case warrants relief under the statute's public-interest prong.

Applying those standards to this case, we conclude that the motion for expungement was improperly denied. We therefore reverse the judgment of the Appellate Division, which affirmed the trial court. We also remand the case to the trial court for further proceedings.

I.

Beginning around February 2000, law enforcement officials investigated the sale of controlled dangerous substances (CDS) at a nightclub in Somers Point, New Jersey. On three separate occasions, undercover officers allegedly purchased ecstasy from petitioner Ronald C. Kollman, Jr. Kollman sold an officer ten white pills for $200 on the night of February 24, 2000. Hours later on February 25, 2000, Kollman allegedly sold five pills for $100 to another officer. A third officer also allegedly paid Kollman $100 for five pills on April 20, 2000. According to police reports, all three officers identified Kollman as the seller from a photo, and lab testing confirmed that the pills were methylenedioxymethamphetamine, commonly referred to as MDMA or ecstasy.

The police arrested Kollman on June 22, 2000. He was later indicted for three counts of distribution of CDS, N.J.S.A. 2C:35-5(a)(1), three counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), three counts of distribution of CDS within 500 feet of a public zone, N.J.S.A. 2C:35-7.1, and three counts of possession of CDS, N.J.S.A. 2C:35-10(a)(1).

The three counts for each offense corresponded to the three undercover transactions.

Kollman pled guilty on January 16, 2001 to one count of third-degree distribution of CDS, contrary to N.J.S.A. 35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13).*fn1 The plea related only to the sale of ecstasy on February 24, 2000. As part of a plea agreement, the State agreed to recommend (a) dismissal of the remaining charges in the indictment, and (b) a sentence of forty-five days in county jail and probation. The State also agreed not to pursue additional charges related to events at another nightclub in March 2000.

On March 2, 2001, the trial court sentenced Kollman to forty-five days in county jail (subject to daily reporting of at least two days per week, if eligible), a three-year period of probation, and various fines and penalties. Kollman was twenty-three years old at the time of sentencing.

After eighteen months, Kollman's probation was terminated. He successfully completed all of the conditions of probation on September 13, 2002.

Seven and one-half years later, on March 18, 2010, Kollman filed a petition to expunge his conviction. In support of his application, Kollman offered proof that he completed college and received a Bachelor of Science degree from the Richard Stockton College of New Jersey in May 2009. He also certified that he worked full-time while in school and had become active in various community service projects.

Petitioner also submitted twenty-one letters to the court. His employer for sixteen years described him as a hard-working leader and a role model to others. The employer credited Kollman for accepting responsibility and taking steps to improve himself and deter others after his conviction. The District Director for the Boy Scouts of America praised Kollman and his family for hosting annual toy drives to help underprivileged families and teenagers with alcohol and drug abuse problems. Kollman also served on the district board of directors of a scholarship committee for scouting. Several other community groups ...


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