Expungement Blog

State Supreme Court Tells Lower Courts to Focus on Defendant Rehabilitation When Using Discretion to Grant or Deny Vacate Petition.

Posted by Ryan Robertson on Oct 31, 2022 | 0 Comments

In a State Supreme Court ruling this week (October 27, 2022), the Court instructed lower courts to focus on a defendant's post-conviction rehabilitation when exercising discretion whether to grant or deny a vacate petition.

Washington law states that persons convicted of most felony and misdemeanor crimes may petition the court to vacate the conviction record.  While our laws state specific requirements each person must meet to qualify to vacate, ultimately the judge has final say.  Each judge has discretion to grant or deny a vacate petition.

While the vacate laws have existed for decades, it has never been clear exactly how a judge should use their discretion.  In the last few years this issue has been raised in several appellate court cases.  This blog will address this recent case history, and describe the impact of the State Supreme Court's decision.

As a preliminary matter, the vacate laws set forward clear parameters describing which types of conviction records may not be vacated – ever.  Felony offenses classified as Class A felonies (murder, rape, etc.) may never be vacated.  Offenses classified as “violent offenses” (RCW 9.94A.030) and “crime against persons” (RCW 43.43.830) may never be vacated.  Felony DUI convictions may never be vacated.  In 2019, the legislature allowed certain Assault 2°, Assault 3°, and Robbery 2° convictions to be vacated.  Certain misdemeanor offenses may never be vacated: DUI convictions, “violent offenses,” sex crimes, obscenity and pornography crimes, child exploitation crimes, and domestic violence crimes under certain circumstances.  There is no opportunity for a court to exercise discretion in these cases.

For all other convictions the door remains open to vacating the conviction record.  Regardless of the felony or misdemeanor categorization, the vacate laws share common additional requirements.  First, the defendant must show completion of all sentencing requirements.  For felonies, this means obtaining a Certificate of Discharge.  The defendant must wait a minimum time period.  The defendant cannot have any intervening convictions during the wait period.  Finally, the person must not have any pending criminal charges when a vacate petition is filed.

All of these criteria, if met, allow a vacate petition to get to the judge.  But at this point the judge may or may not grant the request.  How does a judge exercise this discretion?  What else should a judge consider?

In 2020, the State Appellate Court (a court beneath the jurisdiction of the State Supreme Court) held in State v. Kopp that a judge may consider the facts of the case in exercising discretion to deny a vacate request.  In Kopp, the defendant was initially charged with rape (a crime that cannot be vacated.).  But the charge was later reduced to Assault 3° (a crime that since 2019 can now be vacated.).  Even though Kopp could meet the requirements to vacate, the Appellate Court held it was okay for the judge to consider the allegations of rape and conclude that the conviction record for Assault 3° should not be vacated.

There is a saying amongst lawyers that “bad facts make bad law.”  Kopp proves this.  It is understandable that descriptions of a sexual assault could lead a judge to refuse to vacate a conviction, even if the defendant was not convicted of that crime.  But the Kopp decision created a larger problem.  If the facts of a case can be the basis to deny a vacate petition, how can any case be vacated?  Put another way, what set of fact constituting a criminal act would be “good enough” to vacate?  Any accusation of assault, theft, drug use, robbery, etc., represents a person's worst moment.  Kopp didn't help clarify how to exercise discretion; it became a justification to never exercise it.

Then came State v. Hawkins.  Like Kopp, Hawkins was charged with an offense that could not be vacated (Assault 1°), but was convicted of a reduced charge (Assault 3°) that could.  When Hawkins later sought to vacate the conviction, the judge cited Kopp, considered the facts of the case, and denied the vacate request.

However, Hawkins' presentation to the court was very different than Kopp.  Hawkins presented substantial evidence detailing how her crimes occurred (mental health breakdown) and detailed how hard she worked to address those issues post-conviction.  Hawkins presented testimony of support from the victim (her mother) and also medical reports showing her high and consistent level of rehabilitation.  Despite this information, the judge still rejected the vacate request.

Hawkins took her case to the State Supreme Court.  There, the Court reversed the judge's decision, and set forward criteria for how a judge should properly exercise discretion.

To understand what judicial discretion means in the context of a vacate request, the Supreme Court looked to the history and evolution of the vacate laws in our State.

What is the purpose of the [vacate] statute? We have previously explained that the [vacate] statute is “a legislative expression of public policy” that a deserving offender should be restored to her “pre-conviction status as a full-fledged citizen.”

[Vacate] entitles an individual to rejoin society free of “all penalties and disabilities resulting from the offense.” In fact, the statute provides that “an offender whose conviction has been vacated may state that the offender has never been convicted of that crime” for all purposes, “including responding to questions on employment applications.”

[T]he trial court must focus on whether the applicant has demonstrated sufficient post-conviction change to show rehabilitation.

[A court] exercise[s] its discretion by considering information about whether the defendant has shown sufficient rehabilitation since the time of the crime. Information relevant to rehabilitation will be specific to each individual and each crime. For example, if the individual has a substance use problem that contributed to the crime, information that they have taken steps to address that problem will be relevant to rehabilitation. Likewise, if the individual has mental health issues or an anger management problem, evidence that they have addressed those issues will be relevant.

Therefore, the Supreme Court held that a judge exercises discretion properly by focusing on four factors:

  • Determine that the defendant's conviction can be vacated. An ineligible conviction may not be vacated under any circumstances.
  • Determine that the defendant has completed sentencing conditions. For felony offenses this requires the defendant to obtain a Certificate of Discharge.
  • Determine that all other pre-requisites have been satisfied: wait periods, no pending charges, etc.
  • Determine whether the defendant has demonstrated appropriate rehabilitation since the conviction, as stated above.

Our firm has been doing this for years.  It has always been our belief that a judge will exercise discretion in our client's favor when we tell the client's story.  Everyone has worked hard to overcome obstacles created by a criminal conviction before they even contacted our office.  We have focused on the client's story in each and every vacate request we have ever filed in any court, and we will continue to do so.

Motivations to file a vacate request will vary.  But each vacate shares a common theme.  It represents the true end of the case.  You dealt with the stress and trauma associated with an arrest and having to go to court.  You persevered dealing with incarceration, paying fines, performing community service, or completing treatment.  Finally, you moved on.  You have lived with the consequences of the conviction record for several years.  Now it is the time to end the case.

Our firm is dedicated to telling your story of rehabilitation.  If you have questions about your conviction and whether to qualify to have it vacated, please call or email our office.

About the Author

Ryan Robertson

Ryan is a creative and articulate advocate who limits his practice to criminal appeals and post-conviction relief including vacation, expungement, and sealing of records. He has worked exclusively in the criminal defense field since passing the Washington State bar exam in 1998. Ryan has been recognized as a Rising Star lawyer by Law & Politics Magazine.


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