Appeal from the Superior Court of the District of Columbia (D-4062-00) (Hon. Rafael Diaz, Trial Judge)
Before Terry and Steadman, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Newman, Senior Judge
Whitney Davis sought to seal the record of her arrest for a minor infraction of the District's drinking statute. The District of Columbia now claims that the trial court abused its discretion in granting Davis' motion to seal her arrest record when she did not show, by clear and convincing evidence, that no crime was committed or that she did not commit the crime. We agree with the District; we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 2000, Davis was walking down a public sidewalk in the District with an open bottle of beer in her hand. She was stopped by two police officers who, when they discovered she was only twenty years old, *fn1 placed her under arrest for underage possession of an alcoholic beverage, in violation of D.C. Code § 25-103 (a) (March 2000 Supp). She was advised of her rights and released on citation. After an information was filed against Davis as a result of the arrest, the District offered her a chance to enter the Pretrial Diversion program in lieu of further prosecution of the case. Davis entered the program and completed it, at which point the government entered a nolle prosequi in the case.
On June 28, 2001, Davis filed a motion to seal her arrest record. On July 5th, the trial court ordered the government to respond to the motion within sixty days. On October 9th, the government filed a response opposing the motion and a motion for enlargement of time. On October 10th, the government filed a second opposition. Davis opposed both of the government's oppositions on the grounds that they were filed too late, noting that under Super. Ct. Crim. R. 47-I (c), the court could treat the motion as conceded, but did not specifically ask that the court do so. The trial court issued its Order to Seal Arrest Record on November 9, 2001, without holding a hearing. In the order, the court did not note that it considered the motion to seal conceded, nor did it grant Corporation Counsel's motion for enlargement of time. The court simply found that Davis had completed the Pretrial Diversion Program after her arrest and that the government had dismissed the case by entering a nolle prosequi.
Judicial decisions under Rule 118 constitute findings of fact. If the trial court "finds by clear and convincing evidence that the offense for which the movant was arrested did not occur or that the movant did not commit the offense" it must seal the record. Super. Ct. Crim. R. 118 (e) (2001). The trial court's factual findings under Rule 118 are therefore reviewed to determine whether they are "clearly erroneous." Morris v. United States, 728 A.2d 1210, 1215 (D.C. 1999); Hawkins v. United States, 461 A.2d 1025, 1030 n.6 (D.C. 1983), cert. denied, 464 U.S. 1052, 104 S. Ct. 734(1984); D.C. Code § 17-305 (a). However, the decision to treat a motion as conceded is "committed to the sound discretion of the trial judge." Garris v. United States, 295 A.2d 510, 512, n.3 (D.C. 1972) (motion to suppress not treated as conceded under Super. Ct. Crim. R. 47-I (c) despite lack of opposition); we review for abuse of discretion. Cobb v. Cobb, 462 A.2d 461 (D.C. 1983) (discussing a trial court's decision to treat a motion to dismiss as conceded under Super. Ct. Dom. Rel. R. 7 (b)(2) (then R. 7 (b)(1)(v)), which contains a provision identical to Super. Ct. Crim. R. 47-I (c)). See generally Johnson v. United States, 398 A.2d 354 (D.C. 1979) (abuse of discretion).
B. Sealing an Arrest Record
Superior Court criminal procedure rules state the guidelines for granting a motion to seal an arrest record as follows: "If, based upon pleadings or following a hearing, the Court finds by clear and convincing evidence that the offense for which the movant was arrested did not occur or that the movant did not commit the offense, the Court shall order the movant's arrest records retrieved and sealed. . . ." Super. Ct. Crim. R. 118 (e) (2001). This rule essentially codifies the rule laid down in District of Columbia v. Hudson, 404 A.2d 175 (D.C. 1979) (en banc) ("Hudson I"), and amplified in District of Columbia v. Hudson, 449 A.2d 294 (D.C. 1982) (en banc) ("Hudson II"). As the government points out, Davis has never met this standard. *fn2 She committed the offense for which she was arrested, could not show otherwise, and except for a bald assertion in her original motion that "there is clear and convincing evidence that no crime was committed by Ms. Davis," she does not try to show that she meets the standard set out in Rule 118. Rather, in opposing this appeal, Davis relies on Rule 47-I, which ...