Cleaning Up Criminal History – Felonies

Michael P. BrodskyMichael P. Brodsky, Attorney at Law
120 Prospect Street
Bellingham, WA 98225-4300
Phone: (360) 756-5120
Fax: (360) 671-1285

Last month I wrote about how a person with misdemeanor criminal history can go about trying to clean up some of that undesirable past.  Cleaning up felony history is more complicated.  But is it is also more important because felony history can be so much more debilitating to one’s ability to get a job or even rent an apartment and, unlike misdemeanors, you can vacate more than one.

What You Can’t Vacate

RCW 9.94A.640 governs the vacation of felonies and prohibits vacation of certain of the more serious felony offenses under any circumstances.[1]  Those include violent offenses as defined in RCW 9.94a.030(54)[2]:

  • Any class A felony or an attempt to commit a class A felony;
  • Criminal solicitation of or criminal conspiracy to commit a class A felony;
  • Manslaughter in the first degree;
  • Manslaughter in the second degree;
  • Indecent liberties if committed by forcible compulsion;
  • Kidnapping in the second degree;
  • Arson in the second degree;
  • Assault in the second degree;
  • Assault of a child in the second degree;
  • Extortion in the first degree;
  • Robbery in the second degree;
  • Drive-by shooting;
  • Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and
  • Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

RCW 9.94A.640 also prohibits vacation of offenses deemed as “crimes against persons” as defined in RCW 43.43.830 which includes, in addition to all of the above offenses designated as “violent” offenses, the following:

  • third degree assault;
  • third degree assault of a child;
  • third degree rape;
  • third degree rape of a child;
  • second degree robbery;
  • first or second degree extortion;
  • indecent liberties;
  • incest;
  • first degree promoting prostitution;
  • communication with a minor;
  • unlawful imprisonment;
  • simple assault;
  • sexual exploitation of minors;
  • first or second degree criminal mistreatment;
  • endangerment with a controlled substance;
  • child abuse or neglect as defined in RCW 26.44.020;
  • first or second degree custodial interference;
  • first or second degree custodial sexual misconduct;
  • malicious harassment;
  • second, or third degree child molestation;
  • first, second degree sexual misconduct with a minor;
  • commercial sexual abuse of a minor; child
  • abandonment;
  • promoting pornography;
  • selling or distributing erotic material to a minor;
  • custodial assault;
  • violation of child abuse restraining order;
  • child buying or selling;
  • prostitution;
  • felony indecent exposure;
  • criminal abandonment;

If a person wants to remove any of the foregoing convictions, their only remedy is to seek a pardon under RCW 9.94A.885.

Certificate of Discharge and other Requirements

RCW 9.94A.640 also precludes vacation if the person has any criminal charges pending in any state or federal court or if the person has been convicted of any new charges of any kind, including felonies and misdemeanors, since the date of discharge.  This second condition is crucial.  In order to vacate a felony the person must have completed all conditions of the sentence including payment of all legal financial obligations as well as restitution, if any.  The date of discharge triggers the clock for the passage of time necessary to vacate a felony charge: 5 years for Class “C” felonies, 10 years for Class “B”.  Problems can arise, however, because most people fail to request a certificate of discharge when they have completed the obligations.  Fortunately, most Courts will agree to issue certificate of discharge “nunc pro tunc” (Latin for “now for then”) so as to back date the 5 or 10 year waiting period to the date the obligations were completed.

The date of the certificate of discharge is also important because it commences the period in which the person can have no new convictions.   Remember that something as minor and innocuous as driving while license suspended in the 3rd degree, disorderly conduct or urinating in public can count as a new conviction if it occurs after the date of discharge. Thus any new conviction will prevent vacation of the existing conviction unless it is first vacated as well.  However, new convictions that occur after the conviction the person is seeking to discharge but before the date of the certificate of discharge should not prevent vacation. More on that below.

Not Limited to 1

An odd and inexplicable inconsistency between the laws that govern vacation of non-felonies and felonies is that, unlike misdemeanors and gross misdemeanors, a person can serially vacate as many felonies as they qualify for.  That is because case law interpreting RCW 9A.94.640 holds that, for the purposes of vacating felony convictions, once a matter has been vacated the defendant is relieved of all adverse consequences except for use in a subsequent conviction.  State v. Smith, 158 Wn. App. 501, 246 P.3d 812 (2010) and State v. Breazeale, 144 Wash.2d at 837, 31 P.3d 1155 (2001). Essentially, since vacation of a misdemeanor or felony charge permits the person by statute, to state that he or she has not been convicted of that crime and that the person has been “released from all penalties and disabilities resulting from the offense”, the subsequent conviction cannot bar subsequent felony vacations.

This result stands in stark and irrational contrast to RCW 9.96.060, the statute that governs vacation of misdemeanors and gross misdemeanors, which specifically limits a person to one and only one vacation of a misdemeanor or gross misdemeanor by barring any applicant  that “has ever had the record of another conviction vacated.”  That prohibition includes felony vacations as well which would bar anyone from having a non-felony vacated if they have already vacated a felony or non felony charge.  A possible exception may exist for misdemeanors and gross misdemeanor convictions that occur on the same day.

What a Felony Vacation Accomplishes

RCW 9.94A.640(3)[3] describes what vacation does accomplish. Specifically a vacated felony:

  • cannot be used in the calculation of a defendant’s offender score for the purposes of sentencing;
  • releases the offender “from all penalties and disabilities resulting from the offense from” and;
  • permits the offender to “state that the offender has never been convicted of that crime” for purposes of responding to questions on employment applications and the like.

What a Felony Vacation Does Not Do

What is not accomplished by a felony vacation is equally important. In particular a felony vacation:

  • does not restore one’s right to possess a firearm which would have been lost upon the conviction of any felony or assault in the fourth degree – domestic violence. Restoration of firearm rights can be accomplished by civil petition to the court and does not require that the conviction that caused the loss of that right be vacated.
  • may not convince the Canadian’s to permit you to enter Canada;
  • will NOT eliminate the conviction for immigration purpose in most instances. See Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001) (9th Cir.) and Matter of Roldan, 22 I&N Dec. 547 (BIA 1999).

Cleaning up one’s felony history is even more important and more complicated than cleaning up misdemeanors.  The good news is that the inconsistencies between the governing statutes permit multiple felony vacations. However, you will almost certainly need the assistance of an attorney familiar with all the ins and outs, exceptions and requirements of these arcane statutes.  Please call or email if I can be of assistance with any post-conviction clean-up including vacating a misdemeanor, gross misdemeanor or felony, restoration of firearm rights or terminating sex offender registration.

[1] Although both clemency or pardon remain possibilities.

[2] Soon to be recodified as 9.94A.030(55).

[3] (3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution. Wash. Rev. Code Ann. § 9.94A.640 (West)