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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 102,383 STATE OF KANSAS, Appellant, v. ALLEN F. JABEN, Appellee.

SYLLABUS BY THE COURT 1. Because K.S.A. 21-4619(d)(6) requires that a petition for expungement be docketed in the original criminal action, the State was not permitted to directly appeal the district court's order granting an expungement under procedural rules applicable to civil appeals. Instead, K.S.A. 22-3602(b)(3), which permits the prosecution to appeal on a question reserved, provided the only basis for the State's appeal in this case.

2. Questions reserved by the prosecution generally presuppose that the case on appeal has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.

3. A statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively or the statutory change is procedural or remedial in nature and does not prejudicially affect the parties' substantive rights.

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4. Because the legislature did not clearly indicate an intent to retrospectively apply K.S.A. 21-4619, the expungement statute in effect at the time the defendant filed his petition for expungement, it applies only prospectively. Thus, in determining whether expungement of the defendant's convictions was permitted, the district court correctly applied the expungement statute in effect at the time of the commission of the crimes underlying the convictions sought to be expunged.

Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed June 1, 2012. Appeal denied.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellant.

William K. Rork, of Rork Law Office, of Topeka, argued the cause, and Wendie C. Bryan, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: In this State appeal of a question reserved pursuant to K.S.A. 223602(b)(3), the State contends the district court erred in expunging Allen F. Jaben's 1977 convictions for attempted rape, rape, aggravated sodomy, aggravated kidnapping, and aggravated battery. The State urges us to find that the district court should have applied the expungement statute in effect at the time Jaben filed his expungement petition, K.S.A. 21-4619(c), which prohibited expungement of those convictions. Instead, the district court applied the statute in effect at the time Jaben committed his crimes of conviction, K.S.A. 21-4617 (Weeks), which permitted expungement of Jaben's convictions.

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We answer the question reserved by concluding that because the legislature did not clearly indicate an intent to retrospectively apply the statute in effect at the time Jaben filed his petition, K.S.A. 21-4619, it applies only prospectively. Thus, in determining whether expungment of Jaben's convictions is permitted, the district court in this case correctly applied the expungement statute in effect at the time the crimes underlying the convictions sought to be expunged were committed. FACTUAL AND PROCEDURAL BACKGROUND In 1977, Jaben pleaded guilty to two counts of rape and one count each of attempted rape, aggravated sodomy, aggravated kidnapping, and aggravated battery for crimes he committed in 1974 and 1975. Jaben received a controlling maximum sentence of life imprisonment from which he was paroled in 2001.

Jaben was released from parole in 2004 and, in June 2008, he filed two separate petitions seeking to expunge his 1977 convictions. The State objected to Jaben's petitions, arguing his convictions for rape and aggravated sodomy could not be expunged under K.S.A. 21-4619(c), the expungement statute in effect at the time Jaben filed his petitions. Citing State v. Anderson, 12 Kan. App. 2d 342, 744 P.2d 143 (1987), the district court applied the expungement statute in effect at the time the offenses were committed, K.S.A. 21-4617(a) (Weeks), and expunged Jaben's convictions.

After consolidating Jaben's petitions for purposes of appeal, the State initially appealed on a question reserved pursuant to K.S.A. 22-3602(b)(3). However, the State later filed an amended notice of appeal adding "K.S.A. 60-2103" as an additional basis for appeal. The appeal was transferred to this court on the court's own motion under K.S.A. 20-3018(c).

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DISCUSSION The State's appeal is permissible only on a question reserved. The State suggested at oral argument that because it filed its notice of appeal both from a question reserved and as a direct civil appeal, this court can directly consider the district court's decision granting expungement instead of ruling only on a question reserved. We disagree.

A petition for expungement must be docketed in the original criminal action. K.S.A. 21-4619(d)(6). Thus, K.S.A. 60-2103, which governs appellate procedure in civil actions, does not apply. Instead, K.S.A. 22-3602(b)(3), which permits an appeal on a question reserved, provides the only basis for the State's appeal in this case.

Moreover, we do not entertain questions reserved by the prosecution merely to show that the district court erred in its ruling. Instead, questions reserved "generally presuppose that the case on appeal has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases." State v. Masterson, 261 Kan. 158, 161, 929 P.2d 127 (1996). See also State v. Berreth, 294 Kan. 98, 273 P.3d 752, 767 (2012) (questions reserved by State in criminal prosecutions must be issues of statewide interest important to the correct and uniform administration of criminal law and will not be entertained merely to determine whether error was committed by the district court in its rulings adverse to the State; appellate courts' answers to questions reserved have no effect on the criminal defendant in the underlying case).

Here, the question reserved is whether, when faced with a petition for expungement, the district court applies the expungement statute in effect at the time of the filing of the petition, in this case K.S.A. 21-4619, or the expungement statute in effect
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at the time the crimes were committed. We agree with the State that this presents a question of statewide importance, resolution of which will further the uniform administration of the law.

The expungement statute in effect at the time Jaben filed his petition, K.S.A. 21-4619, does not apply retrospectively to his petition for expungement. Because resolution of this issue involves interpretation of statutes and prior cases, our review is unlimited. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 (2006).

Before considering the question reserved by the State in this case, we first note that the expungement statute in effect at the time Jaben filed his expungement petition, K.S.A. 21-4619, has been renumbered and amended and can now be found at K.S.A. 2011 Supp. 21-6614c. We caution that our discussion below of the issue of whether K.S.A. 21-4619 has retrospective application should not be read or interpreted to apply to the statute currently in effect or any other future amended version of the statute.

K.S.A. 21-4617 (Weeks), the expungement statute in effect at the time Jaben's crimes were committed (and the statute applied by the district court in this case to expunge his convictions) provided, in relevant part:

"(a) Every offender who was twenty-one (21) years of age or older at the time of the commission of the crime for which he was committed and who has served the sentence imposed or who has fulfilled the conditions of his . . . parole for the entire period thereof . . . may petition the court five (5) years after the end of such sentence, the fulfilling of such conditions of . . . parole or such discharge from . . . parole and may request that his record be expunged of such conviction if during such five (5) year period such person has exhibited good moral character and has not been convicted of a felony." K.S.A. 21-4617 (Weeks).

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In 1978, the legislature repealed K.S.A. 21-4617 and replaced it with K.S.A. 214619. See L. 1978, ch. 120, sec. 28. In June 2008, when Jaben petitioned to expunge his convictions, K.S.A. 21-4619 provided, in relevant part:

"(b) Except as provided in subsection (c), no person may petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed . . . or was discharged from . . . parole, . . . if such person was convicted of a class A, B or C felony, or for crimes committed on or after July 1, 1993, if convicted of an off-grid felony or any nondrug crime ranked in severity levels 1 through 5 or any felony ranked in severity levels 1 through 3 of the drug grid, or: [specifically listed crimes]. "(c) There shall be no expungement of convictions for the following offenses or of convictions for an attempt to commit any of the following offenses: (1) Rape as defined in K.S.A. 21-3502, and amendments thereto; . . . (5) aggravated criminal sodomy as defined in K.S.A. 21-3506, and amendments thereto; . . . or (22) any conviction for any offense in effect at any time prior to the effective date of this act, that is comparable to any offense as provided in this subsection. .... "(e) At the hearing on the petition, the court shall order the petitioner's arrest record, conviction or diversion expunged if the court finds that: (1) The petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare." (Emphasis added.)

Thus, while the expungement statute in effect when Jaben filed his petition in 2008 prohibited expungement of Jaben's convictions, the expungement statute in effect at

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the time Jaben committed his crimes of conviction in 1974 and 1975 permitted expungement of those crimes if certain other conditions were met.

In granting Jaben's petitions, the district court relied on State v. Anderson, 12 Kan. App. 2d 342. There, the defendant sought expungement of his conviction under K.S.A. 21-3511 for aggravated indecent solicitation of a child. As in the present case, at the time of Anderson's conviction in 1974 the law permitted a defendant to petition for expungement 5 years after fulfilling the terms of his or her probation. 12 Kan. App. 2d at 343; K.S.A. 21-4617(a) (Weeks).

Nevertheless, in Anderson the district court applied the statute in effect at the time the defendant filed his expungement petition, K.S.A. 1986 Supp. 21-4619(c)(6), which prohibited expungement of convictions for violations of K.S.A. 21-3511. The sole issue in Anderson was whether the district court's retrospective application of K.S.A. 1986 Supp. 21-4619(c)(6) violated the Ex Post Facto Clauses of the United States Constitution. 12 Kan. App. 2d at 343. See U.S. Const. Art. I,

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