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Journey v. Alaska (5/12/95), 895 P 2d 955
NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM J. JOURNEY, )
) Supreme Court No. S-5672
Petitioner, ) Court of Appeals No. A-4018
v. ) Superior Court No.
) 4FY-S89-17 CR
STATE OF ALASKA, )
) O P I N I O N
______________________________) [No. 4197 - May 12, 1995]
Petition for Hearing from the Court of Appeals of the
State of Alaska, on Appeal from the District Court, Fourth
Judicial District, Fairbanks, Charles Pengilly, Judge.
Appearances: William J. Journey, pro se, Fairbanks,
Paul Canarsky, Assistant Public Defender, Fairbanks, and John
Salemi, Public Defender, Anchorage, for Petitioner. Kenneth M.
Rosenstein, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Respondent.
Before: Moore, Chief Justice, Rabinowitz, Matthews,
Compton, and Eastaugh, Justices.
After successfully completing the terms of his
probation, William Journey (Journey) moved to have his conviction
for disorderly conduct set aside and his criminal record expunged
pursuant to AS 12.55.085(e). The district court denied his
expunction request, stating that it lacked the authority to do
so. Journey appealed and the court of appeals held that the
district court did not err in denying Journey's request to
expunge his criminal record. We affirm.
I. FACTS AND PROCEEDINGS
The court of appeals set out the facts of this case as
William Journey was convicted of
disorderly conduct after pleading no contest
to the charge; he received a suspended
imposition of sentence [SIS] and was placed
on probation. After successfully completing
his probation, Journey moved to have his
conviction set aside in accordance with the
provisions of AS 12.55.085(e).
At the evidentiary hearing on his
motion, Journey requested [the district
court] . . . to expunge all records relating
to his arrest and conviction. Journey
asserted that he had originally understood
that his record would be expunged upon
completion of the suspended imposition of
sentence; Journey testified that he had been
hampered in attempting to secure employment
because of his arrest record. [The district
court] . . . set aside Journey's conviction
but declined to order his record expunged.
The judge concluded that the suspended
imposition of sentence statute did not
expressly authorize the court to order
Journey's record expunged and that the court
had no inherent authority to issue such an
Journey v. State, 850 P.2d 663, 664 (Alaska App. 1993) (footnote
More precisely, Journey argued before the district
court that potential employers had access to his criminal record:
Well, the way I understood the process
was I wasn't going to have a record, and that
I wasn't going to be hindered. . . . I have
been looking for work for quite awhile . . .
[and] this hinders me in [obtaining the kind
of work I am looking for,] . . . police work,
investigative work for the State, eligibility
technician, [and] child support enforcement
. . . .
Fifty-seven different times, I thought I
did not have a conviction because of the set
aside. So, on the State [job] applications,
57 different times I said I had no
convictions. I couldn't figure out why I
wasn't getting a job. I'd go for an
interview, but, you know, nothing would
result out of it. So, I did a re-assessment.
And then I found out. I says, hey, I'm in
the computer. And they have access to the
Though his assertion that he was denied employment on
account of his criminal record is suspect,1 the district court
sympathized with Journey's frustration:
I've got a lot of sympathy for your
position, Mr. Journey, especially in light of
the fact that judges around here routinely
said [sic], when a guy gets an SIS, behave
yourself, stay out of trouble. If you do
that, the conviction will be set aside, and
after that you can honestly say you don't
have a conviction in this case.
. . . .
. . . I know a lot of defendants are
hearing that. And, for that reason, I [have]
a lot of sympathy for your situation.
On appeal, the court of appeals affirmed the district
court's order denying expunction of Journey's criminal record.2
The court of appeals noted "that no Alaska statute, rule, or
judicial decision expressly vests sentencing courts with the
power to expunge criminal records . . . ."3 After discussing
whether an Alaska court has the inherent judicial authority to
order records expunged, the court of appeals stated:
In our view, however, this case requires
no definitive resolution of the inherent
authority issue. Even assuming that Alaska
courts have inherent power to order criminal
records expunged, we believe that this power
could not properly be exercised in Journey's
. . . case.
. . . .
In short, whatever inherent authority to
expunge criminal records Alaska courts might
possess by virtue of their expressly granted
powers to preside over criminal cases,
invocation of that authority would have
amounted to an abuse of discretion in the
specific circumstances of Journey's . . .
We granted Journey's petition for hearing as to two
matters: (A) the alleged failure of the court of appeals to
differentiate between a "set aside"of a conviction order and
expungement; that is, whether expunction is a necessary component
of a set aside order under AS 12.55.085(e); and (B) the asserted
failure of the court of appeals to address whether a trial court
has the inherent authority to order expunction of criminal
records. II. DISCUSSION
A. Expunction as a Component of Alaska's Statutory Set
Alaska Statute 12.55.085 authorizes our trial courts to
suspend the imposition of a sentence and thereafter set aside a
conviction if the defendant successfully completes a probationary
period. Alaska Statute 12.55.085 provides, in part:
(a) Except as provided in (f) of this
section, if it appears that there are
circumstances in mitigation of the
punishment, or that the ends of justice will
be served, the court may, in its discretion,
suspend the imposition of sentence . . . and
shall place the person on probation, under
the charge and supervision of the probation
officer of the court during the suspension.
. . . .
(e) Upon the discharge by the court
without imposition of sentence, the court may
set aside the conviction and issue to the
person a certificate to that effect.
See also Alaska R. Crim. P. 35.2(a).
The issue of whether the term "set aside" includes
expungement6 of the defendant's criminal record is one of first
impression. Journey acknowledges that the meaning of the "set
aside"language has never been precisely defined, yet he contends
that our case law, other jurisdictions' case law, and principles
of statutory construction, as well as common sense, lead to but
one conclusion: expungement is a necessary component of a set
aside of a conviction. We disagree.
1. Statutory Interpretation and Alaska Case Law
Looking first to the statutory language, AS
12.55.085(e) refers only to setting aside the conviction;
expungement is not mentioned. Similarly, Alaska Criminal Rule
35.2, which implements AS 12.55.085(e), reiterates the statutory
mandate that a certificate setting aside the conviction be
issued, but is silent as to expungement. Passed in 1965, AS
12.55.085 has no legislative history to illuminate the meaning of
its text. However, we note that in contrast to AS 12.55.085(e),
the legislature has explicitly addressed the issue of criminal
records in a related context.7 Though not necessarily
dispositive, the fact that the legislature has expressly provided
for the sealing of a minor's criminal record demonstrates both
its recognition of the issue as well as its ability to act
Similarly, holding that AS 12.55.085 allows for
expunction renders the statute internally inconsistent. That is,
if convictions that are set aside are to be expunged, then a
portion of subsection (f)(3) of the statute is effectively
meaningless.9 Principles of statutory interpretation militate
against such a reading.10
Journey relies heavily on Mekiana v. State11 in which
the court of appeals held that the enactment of AS 12.55.085 was
"clearly intended to provide probationers who received a
suspended imposition of sentence with the prospect of a clean
slate and the promise of a new beginning . . . ."12 Journey
argues that such a prospect has little meaning if it fails to
protect probationers from the adverse effect that a criminal
record has upon one's employment prospects and reputation. In
citing Larson v. State,13 Journey similarly argues that since AS
12.55.085 "ensure[s] that a defendant will not be prejudiced in
his later law-abiding life by the collateral consequences flowing
from a criminal conviction,"14 expungement is but a natural
extension of an already accepted doctrine.
In Larson, the court of appeals held that a conviction
which had been set aside under AS 12.55.085(e) could not be
considered a conviction for presumptive sentencing purposes.15
However, the court of appeals also held that the set aside
conviction could be used for certain other purposes related to
sentencing. Specifically, the court of appeals allowed the use
of the conviction to justify the imposition of the maximum
sentence.16 Implicit in this holding is that the court of appeals
anticipated the preservation of records of the set aside
conviction for use in certain limited circumstances. Thus, as
Larson makes clear, the premise that the "collateral
consequences"of a set-aside verdict should be limited does not
lead to the conclusion that expungement is part and parcel of a
set aside under AS 12.55.085(e).17
The pernicious effects of criminal records are well
documented. Courts,18 commentators,19 and legislatures20 have
recognized that a person with a criminal record is often burdened
by social stigma, subjected to additional investigation,
prejudiced in future criminal proceedings, and discriminated
against by prospective employers.21 Though we recognize this
unfortunate reality, Journey's overall argument that expungement
is a necessary component of a set aside is unpersuasive.
Moreover, the decisions from other states which Journey
cites do not support his position. Unlike AS 12.55.085(e),
several jurisdictions' set aside statutes expressly provide for
expungement or the sealing of records.22 In contrast, and as
already discussed, AS 12.55.085(e) does not speak to expungement
or the sealing of records.
2. Expungement Pursuant to 6 AAC 60.100(a)
Journey also cites 6 Alaska Administrative Code (AAC)
60.100(a) to support his expungement claim. It states in
PURGING OF CRIMINAL HISTORY RECORD
INFORMATION. (a) Criminal history record
information collected, stored, processed or
disseminated within the Alaska justice
information system must be purged as follows:
. . . .
(2) Upon final disposition of an arrest
or criminal proceeding in favor of the
arrestee, all criminal history record
information collected and stored as a result
of that arrest or proceeding must be
immediately closed, except fingerprint
classifications and medical information under
6 AAC 60.110.
(3) Criminal history record information
closed under . . . (2) of this subsection
must be expunged no sooner than 60 and no
later than 90 days after closure.
Journey argues that successful completion of a suspended
imposition of sentence is a disposition in his favor, entitling
him to expungement under 6 AAC 60.100(a).23
On the merits, Journey's SIS is not a "disposition in
his favor"pursuant to 6 AAC 60.100. Journey's case is similar
to City of St. Paul v. Froysland24 where the Minnesota Supreme
Court denied an expunction request. After her arrest, Froysland
pled guilty to a charge of disorderly conduct, and received a six-
month stay of imposition of sentence pursuant to Minnesota's
probation statute.25 The trial court instructed the defendant
that if she did not get into any more trouble, the charge would
be dismissed, and that after dismissal she would be able to state
that she had not been convicted of the offense. After the six-
month period, the trial court struck the guilty plea, vacated the
conviction, and dismissed the charge. However, when Froysland
attempted to obtain the return of criminal identification data
under a statute that provided for such return "[u]pon the
determination of all pending criminal actions or proceedings in
favor of the arrested person,"26 the City of St. Paul denied her
The trial court upheld the denial. To this effect, the
trial court reasoned that the statute providing for the return of
criminal identification records was intended to benefit
individuals who either were acquitted of an offense or were
released without further proceedings, and that in the absence of
legislative action extending the statute's protections to
individuals who have admitted guilt, return of the records would
infringe upon the record-keeping functions of the executive
branch.28 The Minnesota Supreme Court affirmed the trial court's
decision.29 Thus, whether or not applicable, we conclude that
Journey is not entitled to expungement per 6 AAC 60.100.
3. Cases Interpreting the Federal Youth Corrections
Lastly, Journey relies upon Doe v. Webster30 in which
the court rejected the government's argument that the use of the
term "set aside"indicated a Congressional intent not to allow
expunction. The Webster court based its holding on a provision
of the former Federal Youth Corrections Act which provided a
procedure for youthful offenders to have convictions set aside.31
18 U.S.C. 5021(b) (repealed 1984). Journey correctly notes
that when construing AS 12.55.085, this court has looked to cases
construing the former Federal Youth Corrections Act.32
Nonetheless, Webster is not entirely helpful to Journey's case.
Though it construed the Act to mandate expunction of the
conviction, the Webster court held that the Act did not require
expunction of the record of arrest.33 With regard to the
defendant's arrest record, the Webster court applied the federal
test for exercise of a court's inherent authority to expunge, and
held that the defendant had not shown any extraordinary
circumstances warranting expunction.34 Furthermore, a number of
federal circuits have reached a result contrary to Webster,
concluding that the Act requires expunction of neither arrest nor
In short, we conclude that our case law, the decisions
of our sister states, and the application of traditional canons
of statutory construction all lead to the conclusion that AS
12.55.085(e) does not authorize a court to expunge a defendant's
criminal record relating to the underlying conviction which is to
be set aside.
B. Expunction as a Function of a State Trial Court's
Journey contends that the court of appeals improperly
avoided the issue of whether trial courts have the inherent
authority to grant expunction of a defendant's criminal record as
a remedy. The court of appeals declined to decide whether a
court has the inherent authority to expunge, asserting that such
a decision would amount to a de facto advisory opinion.37
Given the fact that neither party provides adequate
briefing on the question of how state courts, as opposed to
federal courts, have decided the inherent authority to expunge
issue, we conclude that this case presents an inappropriate
occasion upon which to decide the issue.38
C. Trial Courts Should Not Foster Legally Unsupportable
In sympathizing with Journey, the district court stated
that defendants who receive SISs are routinely informed that
"_[i]f you [fulfill your probation], the conviction will be set
aside, and after that you can honestly say that you don't have a
conviction[.]_ . . . I know a lot of defendants are hearing
that." The district court also stated:
It's problematic . . . . I've got a lot of
sympathy for people that get SISs on the
belief that their conviction is going to
somehow go away if they complete probation.
And then they're . . . bitterly disappointed
when it turns out that it only goes away in
the sort of a narrow, technical sense.
Assuming such advice is commonplace, it is not only
"problematic," but inappropriate and potentially misleading as
well. In the event a trial court has the occasion to explain to
a defendant the consequences of the imposition of an SIS, it must
refrain from inadvertently fostering legally unsupportable
expectations on the defendant's part.39
Expunction of a defendant's criminal record is not
authorized under the set aside provisions of AS 12.55.085(e). We
therefore conclude that the district court was correct in its
ruling that it lacked statutory authority to order Journey's
criminal record expunged upon "discharge by the court without
imposition of sentence"and the subsequent setting aside of his
The judgment of the court of appeals is AFFIRMED.
1 We note that "access to specified classes of criminal justice information
in criminal justice information systems is available only to individual law
enforcement agencies according to the specific needs of the agency." AS
12.62.030(a). An exception to this rule exists for "qualified persons for
research related to law enforcement,"but is subject to procedures to
protect the privacy of individuals about whom such information is released.
AS 12.62.030(b). An "interested person"may obtain "records of all felony
convictions, convictions involving contributing to the delinquency of a
minor, and convictions involving any sex crimes,"of any applicant for a
job where the applicant "would have supervisory or disciplinary power over
a minor or dependent adult,"but the applicant must receive a copy of the
information provided. AS 12.62.035.
Journey was convicted only of disorderly conduct, an offense that fits in
none of the categories covered under AS 12.62.035. See AS 11.61.110.
Moreover, assuming arguendo that an employer could receive Journey's
conviction record under AS 12.62.035, Journey would have received a copy of
the information, and thus would have proof of the disclosure. Journey
provided no such proof in his motion.
2 Journey, 850 P.2d at 668.
3 Id. at 665.
4 Id. at 665, 667.
5 Interpretation of a statute presents a question of law, which this court
reviews de novo. Borg-Warner Corp. v. Avco Corp. (Lycoming Div.), 850 P.2d
628, 631 n.8 (Alaska 1993). Applying our independent judgment, we will
adopt the rule of law that is most persuasive in view of precedent, reason,
and policy. In the Matter of J.L.F. and K.W.F., 828 P.2d 166, 168 n.5
6 Though some courts and commentators distinguish between "expunction"and
"expungement,"we regard the terms as interchangeable, the more common
practice. See, e.g., United States v. Bush, 438 F. Supp. 839, 840 n.1
(E.D. Pa. 1977) (stating that "expungement"contemplates only a notation
that a conviction has been eliminated while "expunction"refers to the
actual destruction of criminal records themselves); Karen A. Henson,
Comment, Criminal Procedure: Expunction - Fact or Fiction? 31 Okla. L.
Rev. 978, 981 (1978) (cautioning that terminology in this field is
inconsistent and that various cases and statutes attach different meanings
to the same terms). Though Journey construes expunction as the "deletion
of the computerized criminal history information related to his set aside
conviction,"his principal concern -- employer access -- could arguably be
satisfied by less drastic measures (i.e. restricted dissemination,
"sealing"of records, etc.). In any event, it is unnecessary in this
instance to define the substantive semantical distinctions between
7 AS 47.10.090, which applies to proceedings involving a delinquent minor,
provides in relevant part:
(a) The court shall make and keep
records of all cases brought before it.
. . . .
(c) Within 30 days of the date of a
minor's 18th birthday . . . the court shall
order all the court's official records
pertaining to that minor sealed, as well as
records of all driver's license proceedings
under AS 28.15.185, criminal proceedings
against the minor, and punishments assessed
against the minor. A person may not use
these sealed records for any purpose except
that the court may order their use for good
cause shown or may order their use by an
officer of the court in making a
presentencing report for the court.
AS 47.10.090 was amended as recently as 1994. Ch. 113, 12, SLA
8 Similarly, the United States Sentencing Commission treats expunged
convictions differently than those that have been set aside when
determining the presence of aggravating factors. See United States
Sentencing Commission, Federal Sentencing Guidelines Manual, 4A1.2(j) &
cmt. 10 (West 1994-95 ed.). The commentary to this section states:
10. Convictions Set Aside or Defendant
Pardoned. A number of jurisdictions have
various procedures pursuant to which previous
convictions may be set aside or the defendant
may be pardoned for reasons unrelated to
innocence or errors of law, e.g., in order to
restore civil rights or to remove the stigma
associated with a criminal conviction.
Sentences resulting from such convictions are
to be counted. However, expunged convictions
are not counted.
Id. at 4A1.2 cmt. 10.
By treating expunged convictions differently than set
aside convictions, the Sentencing Commission recognized that
expungement is not synonymous with, nor a necessary component of,
9 AS 12.55.085(f)(3) provides:
The court may not suspend the imposition of
sentence of a person who
(3) is convicted of a violation of AS
11.41.210 - 11.41.250 or 11.41.510 - 11.41-
530, and the person has, within the 10 years
preceding the commission of the offense for
which the person has been convicted, one or
more prior convictions for a violation of AS
11.41 or for a violation of a law in this or
another jurisdiction having substantially
similar elements to an offense defined in AS
11.41; for the purposes of this paragraph, a
person shall be considered to have a prior
conviction even if that conviction has been
set aside under (3) of this section or under
the equivalent provision of the laws of
(Emphasis added.) This provision was amended in 1993; however,
the amendment has no bearing on this case. Ch. 40, 7, SLA
10 Homer Elec. Ass'n v Towsley, 841 P.2d 1042, 1045 (Alaska 1992) (stating
that, as a general rule, statute should be construed so that effect is
given to all its provisions and no part is inoperative or superfluous, void
11 707 P.2d 918 (Alaska App. 1985), rev'd on other grounds, 726 P.2d 189
12 Id. at 921.
13 688 P.2d 592 (Alaska App. 1984).
14 Id. at 596.
15 Id. at 597.
16 Alaska Statute 12.55.155(c)(8) allows the sentencing court to consider as
an aggravating factor whether "the defendant's prior criminal history
includes conduct involving aggravated or repeated instances of assaultive
behavior . . . ." In Larson, the defendant had received a five-year
suspended sentence for armed robbery of a cab driver. Larson, 688 P.2d at
17 This is essentially the reasoning adopted by the district court in the
present case. The district court stated its belief that a set aside merely
reinstates such civil privileges as the right to vote or serve on a jury.
The district court then continued:
At the same time, there are a lot of other cases that make it clear that
even though . . . a set aside is granted, the case isn't supposed to
disappear. It's supposed to be considered for certain purposes and not for
18 See, e.g., Menard v. Saxbe, 498 F.2d 1017, 1024 (D.C. Cir. 1974); Davidson
v. Dill, 503 P.2d 157, 159 (Colo. 1972) (en banc).
19 Aidan R. Gough, The Expungement of Adjudication Records of Juvenile and
Adult Offenders: A Problem of Status, 1966 Wash. U. L.Q. 147, 153-59.
20 See Henson, supra note 6.
21 Larry W. Yackle, Postconviction Remedies 146, at 538 (1981).
22 Minnesota's statutes allow the court to suspend the imposition of sentence
in the case of certain offenses relating to the possession of controlled
substances. Minn. Stat. Ann. 152.18(1) (West 1994). The Minnesota
statute specifically provides:
Upon the dismissal of such person and
discharge of the proceedings against the
person . . ., such person may apply to the
district court in which the trial was had for
an order to expunge from all official
records, other than the nonpublic record
the department of public safety . . . all
recordation relating to arrest, indictment or
information, trial and dismissal and
discharge . . . . If the court determines,
after hearing, that such person was
discharged and the proceedings against him
dismissed, it shall enter such order. The
effect of the order shall be to restore the
person, in the contemplation of the law, to
the status he occupied before such arrest or
indictment or information.
Minn. Stat. Ann. 152.18(2) (West 1994); see also Or. Rev. Stat.
137.225(1)-(3) (1993) (permitting a criminal defendant who has
had their conviction set aside to petition the court to issue an
order sealing the record of conviction).
23 Relying on an informal opinion of the Attorney General, 1986 Vol. II
Informal Op. Att'y Gen. 441, the State does not address the merits of
whether an SIS is a "disposition"in Journey's "favor"and instead contends
that 6 AAC 60.100(a) is inapplicable. The basis for the attorney general's
conclusion was former AS 12.62.070(3), the definition section of chapter
62. Former AS 12.62.070(3) defined "criminal justice information system"
"[C]riminal justice information system"means
a system, including the equipment,
facilities, procedures, agreements, and
organizations related to the system funded in
whole or in part by the Law Enforcement
Assistance Administration [LEAA], for the
collection, processing, or dissemination of
criminal justice information.
Since the State's current computerized criminal record
information system -- the Alaska Public Safety Information
Network ["ASPIN"] -- is not funded with LEAA money, the Attorney
General concluded that the regulations were inapplicable. 1986
Vol. II Informal Op. Att'y Gen. at 443. Instead of addressing
this semantical issue, we address the merits. We also note that
recent legislation redefining "criminal justice information
system"so as to omit any reference to the basis of the system's
funding renders the Attorney General's informal opinion moot, if
not incorrect. See Ch. 118, 2, SLA 1994 (codified at AS
24 246 N.W.2d 435 (Minn. 1976).
25 Id. at 436; see also Minn. Stat. Ann. 609.135 (West 1994).
26 Minn. Stat. Ann. 299C.11 (West 1994).
27 Froysland, 246 N.W.2d at 436.
28 Id. at 436-37.
29 Id. at 439; see also State ex. rel. Peach v. Tillman, 615 S.W.2d 514 (Mo.
App. 1981) (per curiam); cf. Gregg v. Commonwealth of Virginia, 316 S.E.2d
741, 742-43 (Va. 1984) ("The expungement statute applies to innocent
persons, not to those who are guilty. Under the first offender statute,
probation and ultimate dismissal is conditioned on a plea of guilty or a
finding of guilt. In the present case, the accused pled guilty. One who
is _guilty_ cannot occupy the status of _innocent_ so as to qualify under
the expungement statute as a person whose charge has been _otherwise
30 606 F.2d 1226 (D.C. Cir. 1979).
31 Id. at 1233.
32 See Mekiana, 726 P.2d at 192.
33 Webster, 606 F.2d at 1230.
34 Id. at 1230-31.
35 E.g., United States v. Doe, 859 F.2d 1334, 1335 (8th Cir. 1988); United
States v. Doe, 732 F.2d 229, 230-32 (1st Cir. 1984) (holding that
congressional intent was to protect youthful offenders only from legal
detriment, not to allow them to hide their past from employers).
36 Whether a trial court has the inherent authority to order expunction of a
defendant's criminal record presents a question of law. We review
questions of law under the independent judgment standard, adopting the rule
of law that is most persuasive in light of precedent, reason, and policy.
Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991).
37 Journey, 850 P.2d at 665-67.
38 See, e.g., Kollodge v. State, 757 P.2d 1028, 1036 (Alaska 1988) ("The
briefing on this issue . . . is inadequate. Thus, we do not address this
issue."); McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1337
n.12 (Alaska 1984).
39 This admonition is not intended to be, nor should it in any manner be
construed as, an addition to the mandatory advisement requirements of
Criminal Rule 11(c)(3)(i).