PEOPLE OF THE STATE OF MICHIGAN v. JASON EDWARD KOERT (2024)

Murray, J. (concurring).

I concur with the majority opinion that defendant was statutorily entitled to have his fourth-degree criminal sexual conduct conviction (CSC-IV), MCL 750.520e(1)(a), set aside once a court order was entered setting aside the two marijuana convictions, MCL 333.7401(2)(d)(iii). And, I agree that this could be accomplished during one hearing, so long as orders setting aside the two marijuana convictions were entered prior to addressing the CSC-IV conviction. But in reaching this conclusion, I do not read MCL 780.621(1)(d) as being ambiguous. That subsection is plain and unambiguous—it allows a CSC-IV conviction to be set aside so long as an applicant has no more than two convictions for minor offenses. MCL 780.621(1)(d).

The dispute here arose because the marijuana convictions do not qualify as minor offenses, see MCL 780.621(1)(d). But, once set aside by entry of an order, the marijuana convictions are deemed to have never existed. MCL 780.622(1). At that point, under MCL 780.621(1)(d), there are no prior convictions on defendant's record (minor or otherwise). Thus, as the majority concludes, under these two statutes the circuit court was free to set aside the CSC-IV conviction at the same hearing where the marijuana convictions were set aside, so long as the order setting aside the marijuana convictions was entered before addressing the CSC-IV conviction.

The lack of specific language within MCL 780.621(1)(d) as to how this can play out in circuit court does not make the statute ambiguous. “[S]ound principles of statutory construction require that Michigan courts determine the Legislature's intent from its words, not from its silence.” People v Gardner, 482 Mich 41, 58-59; 753 NW2d 78 (2008) (quotation marks and citation omitted). “A statutory provision is ambiguous only if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning.” People v Savage, 327 Mich App 604, 618; 935 NW2d 69 (2019) (quotation marks and citation omitted). See also Norman v Norman, 201 Mich App 182, 184; 506 NW2d 254 (1993) (“Silence does not equal ambiguity if the law provides a rule to be applied in the absence of a provision to the contrary.”).

Focusing on what MCL 780.621(1)(d) does address, it is apparent that it provides the substantive rule for when a CSC-IV conviction can be set aside. There is nothing ambiguous about this language. That MCL 780.621(1)(d) does not provide a timing mechanism/procedure for obtaining that expungement when other eligible convictions are also at issue does not make ambiguous the otherwise clear language. Stated differently, that there are different ways in which this procedure can occur does not make the language that is otherwise contained in the statute ambiguous. It simply means that the Legislature did not address the issue.

Other rules and statutes do, however. The court rules (see, e.g., MCR 1.105 and MCR 2.119(E), requiring the court rules be utilized to ensure timely and efficient proceedings, and detailing motion practice), MCL 780.621d(5) (which allows a court to shorten the normal 3 year wait period to “an earlier date” before an applicant can re-file a previously denied motion to set aside), and general judicial discretion as to how hearings are to be conducted, easily answer any procedural questions that may arise. That the issue was not addressed in MCL 780.621(1)(d) does not make its otherwise clear text ambiguous.

Christopher M. Murray