Rebecca Hentz v. State of Mississippi , 2014 Miss. LEXIS 591 ( 2014 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-01217-SCT
REBECCA HENTZ a/k/a EMILY REBECCA
HENTZ
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/18/2013
TRIAL JUDGE: HON. JAMES MCCLURE, III
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: TOMMY WAYNE DEFER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KING, JUSTICE, FOR THE COURT:
¶1. This Court is presented with the following issue: whether a convicted felon is entitled
to an expungement of her conviction after receiving an executive pardon. Because there is
no statutory authority in Mississippi for the courts to order an expungement under these
circumstances, we affirm the trial court’s order denying the request for expungement in
today’s case.
FACTS
¶2. On March 10, 2000, the Tallahatchie County Grand Jury indicted Rebecca Hentz for
one count of conspiracy to manufacture methamphetamine and two counts of attempt to
manufacture methamphetamine. On September 25, 2000, Hentz pleaded guilty to one count
of attempt to manufacture methamphetamine. The Circuit Court of the First Judicial District
of Tallahatchie County sentenced Hentz to thirty years, suspended, unsupervised probation,
and a $5,000 fine. The trial court remanded to the file the other counts in Hentz’s indictment.
¶3. On January 10, 2012, Governor Haley Barbour granted Hentz a “full, complete, and
unconditional pardon” for the attempt-to-manufacture-methamphetamine conviction. Later
in 2012, on October 2, Hentz filed a Motion to Expunge Record, claiming that the records
of her conviction should be expunged because she had received a pardon. On May 20, 2013,
Hentz filed an Amended Motion to Expunge Record, which included additional support for
the contention that the records of her conviction should be expunged. After hearing oral
argument from Hentz’s counsel, the trial court denied her motion. Hentz then timely
appealed to this Court.
ANALYSIS
¶4. Hentz raises one issue on appeal: whether a convicted felon may have her criminal
record expunged after receiving an executive pardon.1
¶5. Expungement is statutory in nature, and the Mississippi Legislature has “authorized
expungement of criminal offender records in limited cases . . . .” Caldwell v. State, 564 So.
1
Polk v. State, __ So. 3d __, 2014 WL 5035942 (Miss. Oct. 9, 2014), a case in which
the mandate has not issued, addresses the same issue as is presented in today’s case.
2
2d 1371, 1372 (Miss. 1990). As an example, Mississippi Code Section 99-19-71 permits
criminal defendants to apply for expungement in a number of circumstances: (1) persons
convicted of a misdemeanor as a first offender; (2) persons convicted of certain felonies as
a first offender;2 (3) and persons in “any case in which an arrest was made, the person
arrested was released and the case was dismissed or the charges were dropped or there was
no disposition of such case.” See also Miss. Code Ann. § 99-15-59 (Rev. 2007) (expungment
of misdemeanor charges); Miss. Code Ann. § 99-15-57(2) (Rev. 2007) (“Upon petition
therefor, the court shall expunge the record of any case in which an arrest was made, the
person arrested was released and the case was dismissed or the charges were dropped or there
was no disposition of such case.”); Miss. Code Ann. § 99-23-23 (Rev. 2007) (expungement
upon completion of drug court program).
¶6. Hentz concedes that there is no statutory provision for expungement in cases of a
pardon. Rather than claiming she is statutorily entitled to have her criminal record expunged,
Hentz claims that the nature of a pardon itself should permit the expungement. In support
of this proposition, Hentz quotes Jones v. Board of Registrars, 56 Miss. 766 (1879). In
Jones, a convicted felon received a presidential pardon for federal embezzlement charges and
subsequently was denied voter registration. Id. at 766. Finding that Jones might register to
vote after the pardon, this Court stated:
If granted after conviction, [the pardon] removes the penalties and disabilities,
and restores him [the convict] to all his civil rights; it makes him, as it were,
2
Hentz’s conviction – attempt to manufacture methamphetamine under Mississippi
Code Section 97-1-7 – is not one of the specific felonies listed in Section 99-19-71. See
Miss. Code Ann. § 97-1-7 (Rev. 2014).
3
a new man, and gives him a new credit and capacity. . . . A pardon is an act
of grace by which an offender is released from the consequences of his
offense, so far as such release is practicable and within the control of the
pardoning power, or of officers under its direction. In contemplation of law,
it so far blots out the offence, that afterwards it cannot be imputed to him to
prevent the assertion of his legal rights. A pardon of treason or felony, even
after an attainder, so far clears the party from the infamy, and all other
consequences thereof, that he may have an action against any who shall
afterwards call him traitor or felon; for the pardon makes him, as it were, a
new man.
Id. at 768 (internal citations and quotations omitted). Although Jones discusses the after-
effects of pardon, it does not specifically address expungement. See id.
¶7. Hentz also cites Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931), in support of
her contention that the nature of a pardon should permit the trial court to expunge her
criminal record. While Crisler does state that a “full pardon absolves the party from all the
legal consequences of his crime and his conviction, direct and collateral; including the
punishment, whether of imprisonment pecuniary penalty, or whatever else the law has
provided;” the opinion expressly limits itself to cases of attorney disbarment. Id. at 103-04
(quoting 8 Bishop’s Criminal Law § 916) (“What we here hold, and all that we do hold, is
that a full pardon absolves an attorney at law from all the consequences of an order of
disbarment . . . .”).
¶8. Jones, 56 Miss. 766, and Crisler, 159 Miss. 247, both cite Ex parte Garland, 71 U.S.
333, 18 L. Ed. 366 (1866), in which the United States Supreme Court also concluded that
pardon “releases the punishment and blots out the existence of guilt.” The language in
Garland, however, has since been held to be dicta; and more recent caselaw holds that a
pardon does not “blot out” the existence of guilt:
4
But modern case law emphasizes . . . that this historical language was dicta and
is inconsistent with current law. See In re North, 62 F.3d 1434, 1437 (D.C.
Cir. 1994). A pardon in no way reverses the legal conclusion of the court; it
“does not blot out guilt or expunge a judgment of conviction.” North, 62 F.
3d at 1437; see also Nixon v. United States, 506 U.S. 224, 232, 113 S. Ct. 732,
122 L. Ed. 1 (1993) (“a pardon is in no sense an overturning of a judgment of
conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79,
94, 35 S. Ct. 267, 59 L. Ed. 476 (1915) (a pardon “carries an imputation of
guilt”). The effect of a pardon is not to prohibit all consequences of a
pardoned conviction, but rather to preclude future punishment for the
conviction. See Nixon, 506 U.S. at 232, 113 S. Ct. 732; Bjerkan v. United
States, 529 F.2d 125, 127-28 (7th Cir. 1975).
Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir. 2005)
(emphasis in original); see also Fletcher v. Graham, 192 S.W.3d 350 (“[W]hile a pardon
will foreclose punishment of the offense itself, it does not erase the fact that the offense
occurred, and that fact may later be used to pardonee’s detriment.”).
¶9. Further, recent caselaw supports the contention that, absent statutory authority,
expungement is not permitted after a pardon. In Eubanks v. State, 53 So. 3d 846 (Miss. Ct.
App. 2011), a defendant with a driving-under-the-influence conviction requested that the
court consider an “equitable expungement” in cases where expungement was not statutorily
provided. The Court of Appeals rejected this argument, finding that trial courts had the
power to expunge a felony conviction pursuant to a guilty plea only under certain statutory
conditions. Id. at 848. See also Turner v. State, 876 So. 2d 1056, 1059 (Miss. Ct. App.
2004) (recognizing that circuit courts lack inherent power to order expungement of criminal
records).
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¶10. Although this Court has not directly addressed the issue presented in today’s case,3
the Mississippi Attorney General’s Office has addressed this exact issue. See Smith, 2012
Op. Att’y Gen. 337, 2012 WL 3611766 (Miss. A.G. Aug. 10, 2012). The Attorney General
was presented with the following question: “Does receiving a pardon from the Governor
allow the defendant to then request that the record of the conviction, which includes the
arrest, indictment, conviction, and sentence be expunged?” Id. The opinion recognizes that
“there is no statutory or constitutional authority providing for the expungement of an offense
as a result of a pardon by the Governor.” 4 Id. The dissent emphasizes that Article 5, Section
124 of the Constitution of the State of Mississippi empowers the Governor to grant reprieves
and pardons, and that to give that section effect, an expungement must go part and parcel
with the pardon. However, Article 5, Section 124, unlike the U.S. constitution and that of
some other states,5 limits the Governor’s pardon power by mandating that “no pardon shall
be granted before conviction.” Miss. Const. art. 5, § 124. Thus, the constitution specifies that
no pardon may be granted until a record of the crime is created via conviction. The
Legislature has not chosen to negate this record required by the constitution by providing for
3
See fn. 1 supra.
4
The dissent argues that Mississippi Code Section 99-15-57(2) provides statutory
authority for expungement in this case, because it provides for expungement when “an arrest
was made, the person arrested was released and the case was dismissed or the charges were
dropped or there was no disposition of such case.” We point out that none of those situations
apply. The case was not dismissed, the charges were not dropped, and the case was disposed
of via Hentz’s conviction. Indeed, each of these situations are applicable only to cases in
which no conviction exists, and thus are clearly inapplicable here.
5
See U.S. Const. Art. II § 2, cl. 1; Fletcher v. Graham, 192 S.W.3d 350 (Ky. 2006).
6
expungement in the case of a pardoned offense, indicating that the history behind the offense
should be retained unless or until the Legislature provides otherwise.
¶11. Because there is no statutory basis in Mississippi for an expungement after a criminal
defendant receives an executive pardon, the trial court in today’s case did not err in denying
Hentz’s motion to expunge her criminal record. As such, we affirm the judgment of the trial
court.
CONCLUSION
¶12. For the reasons discussed above, we affirm the judgment of the Circuit Court of the
First Judicial District of Tallahatchie County.
¶13. AFFIRMED.
WALLER, C.J., AND PIERCE, J., CONCUR. RANDOLPH, P.J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.,
CHANDLER AND COLEMAN, JJ. LAMAR, J., NOT PARTICIPATING.
RANDOLPH, PRESIDING JUSTICE, SPECIALLY CONCURRING:
¶14. Justice King’s opinion is not only well-stated and most persuasive, it reaches the same
conclusion agreed to by a majority of the members of this Court, with all nine justices
participating, in a prior case. See Polk v. State of Mississippi, 2013-CA-00701-SCT (Oct. 9,
2014) (reh’g denied Dec. 4, 2014). In Polk, five justices agreed that no authority exists under
this Court’s caselaw or our state’s statutes allowing for the expungement of the record of a
criminal conviction for which a pardon was granted. In today’s case, the eight justices
participating are deadlocked on the same issue.
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¶15. Thus, I am constrained to specially concur and express my view that the issuance of
a judgment of affirmance is the appropriate disposition of the case sub judice. Today, four
justices agree to affirm the trial court’s judgment, and four justices disagree. Thus, the
judgment of the trial court should be affirmed. See Rockett Steel Works v. McIntyre, 15 So.
2d 624 (Miss. 1943) (“trial court must be, and is, affirmed”).
¶16. This disposition was first articulated by Chief Justice Marshall for the United States
Supreme Court. Chief Justice Marshall wrote:
No attempt will be made to analyze [the parties’ arguments and cited cases],
or to decide on their application to the case before us, because the Judges are
divided respecting it. Consequently, the principles of law which have been
argued cannot be settled; but the judgment is affirmed, the court being divided
in opinion upon it.
Etting v. Bank of United States, 24 U.S. 59, 78, 11 Wheat. 59, 6 L. Ed. 419 (1826). In
Durant v. Essex Co.,74 U.S. 107, 7 Wall. 107, 19 L. Ed. 154 (1868), addressing the effect
of affirmance by a divided court, Justice Field wrote that:
There is nothing in the fact that the judges of this court were divided in
opinion upon the question whether the decree should be reversed or not, and,
therefore, ordered an affirmance of the decree of the court below. The
judgment of affirmance was the judgment of the entire court. The division of
opinion between the judges was the reason for the entry of that judgment; but
the reason is no part of the judgment itself.
Durant, 74 U.S. at 110. If division of opinion is the reason for the judgment, what purpose
do the conflicting opinions serve? The principles of law argued cannot be settled by eight
evenly divided justices, and the conflicting opinions provide no authority for the
determination of other cases.
¶17. The U.S. Supreme Court has explained that:
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it is obvious that that which has been done must stand unless reversed by the
affirmative action of a majority. It has therefore been the invariable practice
to affirm, without opinion, any judgment or decree which is not decided to be
erroneous by a majority of the court sitting in the cause. . . . [A]n affirmance
by an equally divided court is . . . a conclusive determination and adjudication
of the matter adjudged; but the principles of law involved not having been
agreed upon by a majority of the court sitting prevents the case from becoming
an authority for the determination of other cases, either in this or in inferior
courts.
Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S. Ct. 621, 622-23, 54 L. Ed. 1001 (1910)
(emphasis added).
¶18. Thus, as the judgment of the Circuit Court of Tallahatchie County has not been
decided to be erroneous by a majority of the justices sitting in this case, we should affirm
without opinion.
KITCHENS, JUSTICE, DISSENTING:
¶19. The breadth of Mississippi common law regarding the effect of a gubernatorial pardon
persuades me that Hentz is entitled to an expungement of her criminal record. Because my
learned colleagues in the plurality have reached a contrary conclusion, I respectfully dissent.
¶20. Hentz received the following pardon on January 10, 2012:
NOW, THEREFORE, I, Haley Barbour, Governor of the State of
Mississippi, under and by virtue of the authority vested in me by the
Constitution and Laws of this State, do hereby grant to Rebecca Hentz née
a/k/a Rebecca Whatley a/k/a Rebecca Hentz a full, complete and unconditional
pardon for the crime and conviction named herein; and henceforth, shall be
absolved from all legal consequences of this crime and conviction.
(Emphasis added.) This Court’s longstanding jurisprudence regarding the scope of executive
pardons tracks that of the United States Supreme Court:
The doctrine of the authorities is, that “a pardon reaches both the punishment
prescribed for the offence, and the guilt of the offender,” and that “it releases
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the punishment and blots out of existence the guilt, so that, in the eye of the
law the offender is as innocent as if he had never committed the offense.” “If
granted after conviction, it removes the penalties and disabilities, and restores
him [the convict] to all his civil rights; it makes him, as it were, a new man,
and gives him a new credit and capacity.” Ex parte Garland, [71 U.S. 333, 18
L. Ed. 366,] 4 Wall. 333, 380 [(1866)]; United States v. Padelford, [76 U.S.
531, 19 L. Ed. 788,] 9 Wall. 531 [(1869)]; United States v. Klein, [80 U.S.
128, 20 L. Ed. 519,] 13 Wall. 128 [(1871)]; Carlisle v. United States, [83 U.S.
147, 21 L. Ed. 426,]16 Wall. 147 [(1872)]; Knote v. United States, 95 U.S.
149[, 5 U.S. 149, 24 L. Ed. 442 (1877)]. In the case last cited, it is said that “a
pardon is an act of grace by which an offender is released from the
consequences of his offence, so far as such release is practicable and within the
control of the pardoning power, or of officers under its direction.” “In
contemplation of law, it so far blots out the offence . . . .”
Jones v. Bd. of Registrars of Alcorn County, 56 Miss. 766, 768, 31 Am. Rep. 385 (1879)
(emphasis added). Likewise, in Ex Parte Crisler, this Court maintained the rule from Jones
that:
A pardon by the governor is an act of sovereign grace, proceeding from the
same source which makes conviction of crime a ground of exclusion from
suffrage. The act of absolution is of as high derivation and character as the act
of proscription. The pardon must be held to rehabilitate the person in all his
rights as a citizen, and to deny to any officer of the State the right to impute to
him the fact of his conviction. After the pardon, he is as if he was never
convicted. It shall never be said of him that he was convicted. The pardon
obliterates the fact of conviction, and makes it as if it never was.
Ex Parte Crisler, 159 Miss. 247, 250, 132 So. 103 (1931) (quoting Jones, 56 Miss. at 768)
(emphasis added).
¶21. The plurality attempts to distinguish Crisler: “the opinion expressly limits itself to
cases of attorney disbarment.” Crisler, decided in 1931, did involve an attorney, disbarred
from the practice of law following a conviction of embezzlement, who sought reversal of the
order of disbarment. Crisler, 159 Miss. at 249. Likewise is true, as the plurality notes, that
this Court held that “a full pardon absolves an attorney at law from all the consequences of
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an order of disbarment . . . as part of the punishment for the commission of a crime.” Id. at
251. But Crisler relied on a broader rule articulated by this Court in the 1878 Jones case,
which involved restoration of suffrage to a convicted person following a presidential pardon.
Jones, 56 Miss. at 771. The Jones Court cited precedents in which the United States
Supreme Court contemplated the extent of the presidential pardons offered by Presidents
Lincoln and Johnson to persons involved in rebellion against the United States during the
1860s. In U.S. v. Padelford, for instance, Chief Justice Salmon P. Chase opined that, “[i]n
the case of Garland, this court held the effect of a pardon to be such ‘that in the eye of the
law the offender is as innocent as if he had never committed the offence’ . . . .” U.S. v.
Padelford, 76 U.S. 531, 543, 19 L. Ed 788, 9 Wall. 531 (1869) (quoting Garland, 4 Wall.
at 380) (emphasis added).
¶22. In spite of its broad, sweeping language, the plurality recites that “[t]he language in
Garland, however, has since been held to be dicta; and more recent caselaw holds that a
pardon does not ‘blot out’ the existence of guilt . . . .” (citing Hirschberg v. Commodity
Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir. 2005)). With respect, an opinion
from the United States Court of Appeals for the Seventh Circuit is of no moment to this
Court’s analysis of the effect given an executive pardon under controlling Mississippi case
law. Beyond that, one of the cases upon which the Seventh Circuit relied to support its
position that the Garland language more recently has been rendered dicta is Burdick v.
United States, 236 U.S. 79, 94, 35 S. Ct. 267, 59 L. Ed. 476 (1915). There, President
Woodrow Wilson offered Burdick a pardon in exchange for his testimony. Burdick, 236 U.S.
at 85. Burdick refused the pardon, then was held in contempt and incarcerated. Id. at 87. The
11
question before the United States Supreme Court, which ultimately ordered Burdick
discharged from custody, involved the distinction between legislative immunity and a
presidential pardon:
The latter carries an imputation of guilt; acceptance a confession of it. The
former has no such imputation or confession. It is tantamount to the silence of
the witness. It is noncommittal. It is the unobtrusive act of the law given
protection against a sinister use of his testimony, not like a pardon, requiring
him to confess his guilt in order to avoid a conviction of it.
Burdick, 236 U.S. at 95. But Burdick involved a preconviction pardon which Burdick
refused; the case is silent regarding whether a pardon entitles the pardonee to an
expungement.
¶23. The plurality’s citation of expungement cases from the Mississippi Court of Appeals,
likewise, is not helpful regarding the effect of a gubernatorial pardon on a convict’s request
for expungement. Neither Eubanks v. State, 53 So. 3d 846 (Miss. Ct. App. 2011), nor
Turner v. State, 876 So. 2d 1056, 1059 (Miss. Ct. App. 2004), addresses the question that
is before this Court today: whether a gubernatorial pardon entitles a pardonee to an
expungement. The opinion from the Mississippi Attorney General referenced by the majority
answers the question in the negative. But in the context of an adversarial system in which the
Attorney General is an interested party in this very case, his opinion, while interesting, is far
from dispositive.
¶24. The plurality further opines that, “[e]xpungement is statutory in nature, and the
Mississippi Legislature has ‘authorized expungement of criminal offender records in limited
cases . . . .’ Caldwell v. State, 564 So. 2d 1371, 1372 (Miss. 1990).” But Mississippi Code
Section 99-15-52(2) (Rev. 2007) provides that, “[u]pon petition therefor, the court shall
12
expunge the record of any case in which an arrest was made, the person arrested was released
and the case was dismissed or the charges were dropped or there was no disposition of such
case.” Section 99-15-57(2), coupled with the breadth of the common law language articulated
in Crisler that a gubernatorial pardon “makes [the fact of conviction] as if it never was,”
mandates expungement. Crisler, 159 Miss. at 250.
¶25. Article 5, Section 124, of the Constitution of the State of Mississippi empowers the
governor “to grant reprieves and pardons.” Today, the plurality diminishes the effect of
gubernatorial pardons in Mississippi. That which previously was regarded as “an act of
sovereign grace” now is relegated to a mere piece of paper emblazoned with the dubious
phrase “absolved from all legal consequences of this crime and conviction.” I, therefore,
dissent.
DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., JOIN THIS OPINION.
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