IN RE: APPLICATION OF FINLEY ( 2019 )

135 Nev., Advance Opinion 6.5
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 76715-COA
APPLICATION OF EDWARD
TARROBAGO FINLEY, FOR AN
ORDER TO SEAL RECORDS.
FILED
EDWARD TARROBAGO FINLEY,
DEC 2 6 2019
Appellant,
vs.
CITY OF HENDERSON; AND THE
STATE OF NEVADA,
Respondents.
Appeal from a district court order denying a petition to seal
criminal records. Eighth Judicial District Court, Clark County; Susan
Johnson, Judge.
Reversed and remanded.
The Wright Law Group and John Henry Wright and Christopher B.
Phillips, Las Vegas,
for Appellant.
Steven B. Wolfson, District Attorney, and John T. Niman, Deputy District
Attorney, Clark County,
for Respondent State of Nevada.
Nicholas Vaskov, City Attorney, and Marc M. Schifalacqua, Senior
Assistant City Attorney, Henderson,
for Respondent City of Henderson.
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BEFORE GIBBONS, C.J., TAO and BULLA, JJ.
OPINION'
By the Court, TAO, J.:
As an act of grace, the Nevada Legislature has decided that
persons convicted of certain types of crimes (both misdemeanors and many
felonies) may, in certain circumstances and if they have not committed any
new crimes for a certain length of time, ask the judiciary to have their
convictions "sealed," which means that the convictions are "deemed never
to have occurred," thereby restoring a panoply of civil rights that convicted
felons otherwise do not enjoy. See NRS 179.285. Not all convictions are
eligible to be sealed—for example, sex offenses and crimes against children
are never eligible to be sealed no matter how old the convictions. See NRS
179.245(6). But for many other offenses, if the person has proven able to
successfully turn their life around and live crime-free long enough, the
Legislature has enacted a series of statutes designed to give courts the
power to seal convictions for those deemed "rehabilitate& and who deserve
"second chances." See NRS 179.2405 (declaring the public policy behind
sealing statutes).
Iterations of these criminal record sealing statutes have been
around a long time, but in recent years the Legislature has changed the
procedures that must be followed to obtain such sealing. Previously,
petitioners had to file a separate petition in each court in which they were
3-We originally resolved this appeal in an unpublished order of
reversal and remand. Appellant subsequently filed a motion to publish the
order as an opinion. We grant the motion and replace our earlier order with
this opinion. See NRAP 36(0.
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convicted of any crime, and that court could seal only the convictions that it
issued. If the person was convicted of different crimes in different levels of
the judiciary (e.g., municipal court, justice court, or district court), then they
had to file separate petitions in each court to address the convictions issued
by that court. But recently the Legislature decided to permit a convicted
person to file a single consolidated petition in a single district court asking
to seal convictions involving multiple cases from different courts.
The question raised by this appeal is this: on the one hand,
criminal convictions are eligible to be sealed only if the person was not
convicted of any subsequent crimes for a certain prescribed period of time
thereafter (ranging from one year to ten years after the expiration of the
prior sentence), see NRS 179.245 (1), (5); and on the other hand, once sealed,
a conviction is "deemed never to have occurred," see NRS 179.285.
Normally, an earlier conviction followed very quickly by another conviction
renders the first conviction ineligible for sealing. But suppose enough time
elapses so that the latest conviction is eligible to be sealed. Once that later
conviction is sealed and "deemed neyer to have occurred," does that then
make an earlier conviction eligible to also be sealed (since it is no longer
chronologically followed by another later conviction), even though it would
not have been eligible prior to sealing the later conviction? And can entire
chains of otherwise ineligible successive convictions now all be sealed by
unwinding the convictions one after 'another in reverse chronological order
all the way back in time to the person's first conviction?
The plain words of the statutes provide our answer: as enacted,
the statutes vest district cotirts with considerable discretion in handling
petitions involving multiple convictiCons. If they wish, district courts may
evaluate successive convictions in reverse chronological order, thereby
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potentially sealing earlier convictions that would not have been eligible had
the court instead considered the convictions in forward chronological order
(i.e., by deeming the later convictions to have never occurred). On the other
hand, the statutes do not require that district courts handle a train of
multiple successive convictions this way. Quite to the contrary, NRS
179.295 "does not prohibit" courts from considering previously sealed
convictions when determining whether to grant a petition to seal other
criminal records. In other words, even if a later conviction has been sealed,
the district court may still consider it in deciding whether earlier
convictions should be sealed or not, and may rely upon the later sealed
conviction to conclude that the petitioner was not truly rehabilitated and
refuse to seal the earlier conviction.
FACTUAL AND PROCEDURAL HISTORY
Edward Tarrobago Finley filed a consolidated petition in
district court to seal records associated with multiple different criminal
convictions in multiple different courts throughout Clark County. The
State of Nevada (through the Clark County District Attorney) and the City
of Henderson (the City) opposed Finley's petition on various grounds, only
one of which matters to this appeal. The City argued that one of Finley's
convictions, a 2004 non-felony battery domestic violence conviction, was
ineligible to be sealed because Finley was convicted of new felony offenses
within the seven-year time period specified in NRS 179.245(1)(e) for him to
remain crime-free in order to have the 2004 non-felony conviction sealed.
Following a brief hearing, the district court issued a written
order denying Finley's petition. The district court concluded that, because
Finley was convicted of new crimes within the seven-year waiting period
required to invoke the district court's discretion to seal a non-felony battery
domestic violence conviction, the 2004 conviction was ineligible for sealing.
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The district court further concluded that Finley had not satisfied the
requisite waiting periods for the new offenses and therefore also failed to
invoke the court's discretion to seal those convictions. Finley now appeals.
ANALYSIS
On appeal, Finley primarily argues that the district court's
interpretation of the governing statutes2 produced an absurd result and
rendered a particular statute (NRS 179.2595) meaningless. Specifically, he
argues that the district court should have considered whether he was
eligible to have his records sealed by considering each of his convictions
individually in reverse chronological order (i.e., it should have started with
his most recent conviction, determined whether to seal that record, and if
so, proceeded to evaluate the next most recent conviction). Finley argues
that this is so because under NRS 179.285, once a record is sealed, all
proceedings recounted in that record are deemed never to have occurred,
meaning that a district court working in reverse chronological order could
2Some of the relevant statutes in this case—NRS 179.245, .2595, .285,
and .295—were recently amended. See 2019 Nev. Stat., ch. 77, § 2, at 411;
2019 Nev. Stat., ch. 256, §§ 1.5, 1.7, at 1460-61; 2019 Nev. Stat., ch. 633,
§§ 37, 40-41, at 4405, 4408-09. We cite the current versions herein. We
note—and the State concedes—that the district court applied the incorrect
version of NRS 179.245 when considering Finley's petition as to his felony
convictions; it applied the 2015 version of the statute even though the
Legislature amended it in 2017 in a manner that impacts whether Finley
was eligible to petition to have certain records sealed, see 2017 Nev. Stat.,
ch. 378, § 7, at 2413 (decreasing the waiting period for crimes of violence
from 15 years to 10 years), and Finley filed his petition in 2018. The district
court concluded that, because Finley was not discharged from probation for
his December 2004 felonies until December 2007, he was not entitled to
petition to have those records sealed until December 2022 (15 years later).
However, Finley filed his petition following the requisite 10-year period,
and thus, the district court should have considered—and must consider on
remand—whether to seal Finley's December 2004 felonies.
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not consider those proceedings (if sealed) when determining whether a
petitioner is eligible to have an earlier record sealed. Finley argues that he
could have achieved this result by incrementally filing multiple petitions in
each separate court in which he was convicted in reverse chronological
order, and that the district court's failure to consider his convictions in that
order defeated the purpose of NRS 179.2595, which allows petitioners to
file, in one district court, one omnibus petition for all of the records they
want sealed.
Because resolving this issue requires interpreting Nevada's
criminal record sealing statutes, and because the parties overlooked part of
the statutory scheme, we take this opportunity to clarify the statutes and
the broad discretion that they provide courts tasked with deciding whether
to seal criminal records.
Standard of review
This court generally reviews a district court's decision whether
to seal criminal records for an abuse of discretion. See State v. Cavaricci,
108 Nev. 411, 412, 834 P.2d 406, 407 (1992). However, we review a district
court's interpretation of statutes de novo. State, Dep't of Motor Vehicles &
Pub. Safety v. Frangul, 110 Nev.. 46, 48-51, 867 P.2d 397, 398-400 (1994)
(interpreting criminal record sealing statutes). When interpreting a
statute, we will not look beyond its plain language if it is "clear on its face."
Pawlik v. Deng, 134 Nev. 83, 85, 412 P.3d 68, 71 (2018) (quotation marks
omitted). Moreover, when possible, we must interpret a statute in harmony
with other statutes "to avoid unreasonable or absurd results." We the People
Nev. v. Miller, 124 Nev. 874, 881, 192 P.3d 1166, 1171 (2008). "If a statute
is ambiguous, meaning that it is susceptible to differing reasonable
interpretations, [it] should be construed consistently with what reason and
public policy would indicate the Legislature intended." Star Ins. Co. v.
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Neighbors, 122 Nev. 773, 776, 138 P.3d 507, 510 (2006) (quotation marks
omitted).
Nevada's criminal record sealing statutes
The Nevada Legislature has expressly "declare [d] that the
public policy of this State is to favor the giving of second chances to offenders
who are rehabilitated and the sealing of the records of such persons in
accordance with NRS 179.2405 to 179.301, inclusive." NRS 179.2405. In
implementing its stated policy, the Legislature crafted a statute that
distinguishes between a petitioner's "eligibility" to seek sealing and the
district court's "discretion" to decide whether to seal or not. The process
involves multiple steps. A court must first determine whether a petitioner
statutorily qualifies to file a petition seeking sealing. If so, it then must
consider whether the particular convictions targeted by the petition are
statutorily eligible to be sealed. Only if both of these are met does the
district court then proceed to the final step, which is to exercise its
discretion to decide whether sealing is appropriate. In no instance does the
statute ever require any court to seal any conviction; under the statute, a
court always possesses the discretion to refuse to seal any conviction even
when it is eligible to be sealed. It all works as follows.
The first test of eligibility is timeliness: a petition must be
timely and not premature. A petitioner may only file a petition to seal a
particular conviction if a certain number of years has passed from the date
of his or her release from actual custody, the date of his or her discharge
from parole or probation, or the date when he or she is no longer under a
suspended sentence, whichever occurs latest. NRS 179.245(1). The statute
sets forth different waiting periods depending upon the class or severity of
the crime, with category A felonies and certain violent crimes being
assigned the longest period (ten years), and certain non-violent
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misdemeanors being assigned the shortest period (as short as one year). Id.NRS 179.245(6) also identifies certain types of crimes that are never eligible
for sealing no matter how much time has passed, including such crimes as
sexual assault, DUI involving death, and crimes against children. As
relevant to Finley, an individual convicted of non-felony battery
constituting domestic violence must wait seven years. NRS 179.245(1)(e).
If not enough time has elapsed, then the person is not eligible to request
that the conviction be sealed, and the inquiry ends there and the petition
must be dismissed.
If enough time has elapsed and the petition is timely, then the
eligibility inquiry proceeds to the next step. NRS 179.245(2) sets forth the
contents that a petitioner must include in the petition. The petitioner must
include his or her "current, verified records received from the Central
Repository for Nevada Records of Criminal History." NRS 179.245(2)(a).
The petitioner must also include a list of entities or other custodians of
records that he or she reasonably knows to possess records of the conviction
he or she is seeking to have sealed, as well as information that "accurately
and completely identifies the records to be sealed," including the petitioner's
date of birth, the specific conviction to which the records sought to be sealed
pertain, and the date of arrest for that specific conviction. NRS
179.245(2)(c)-(d).
NRS 179.245(3) and (4) then require that the court notify the
law enforcement agency that arrested the petitioner for the relevant crime,
as well as the attorneys that prosecuted the petitioner (including the
Attorney General). The prosecuting attorney may stipulate to the sealing
of the records, in which case the court may seal the records pursuant to NRS
179.245(5) without a hearing. NRS 179.245(4). If the prosecuting entity
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does not stipulate to the petition, then the court "muse conduct a hearing
on the matter. Id. At the hearing, the court analyzes the contents of the
petition and examines the relevant convictions in order to determine
whether or not the petitioner was subsequently convicted of another offense
within the prescribed waiting period that would disqualify a conviction from
being sealed. NRS 179.245(5). If the court finds that the person was
convicted of other crimes (other than minor moving or standing traffic
violations) within the waiting period, a conviction cannot be sealed; it fails
the test of eligibility. See id.; Cavaricci, 108 Nev. at 412, 834 P.2d at 407
(concluding that a petitioner had "failed to invoke the district court's
discretionary power [to order a record sealedl" where he failed to satisfy the
relevant waiting period in a prior version of NRS 179.245).
If, and only if, no such subsequent convictions occurred during
the waiting period, then the discretionary phase of the analysis kicks in,
and "the court may order sealed all records of the [corresponding]
conviction." NRS 179.245(5). It is not, however, required to. If the court
exercises its discretion to order a record sealed,
[alll proceedings recounted in the record are
deemed never to have occurred, and the person to
whom the order pertains may properly answer
accordingly to any inquiry, including, without
limitation, an inquiry relating to an application for
employment, concerning the arrest, conviction,
dismissal or acquittal and the events and
proceedings relating to the arrest, conviction,
dismissal or acquittal.
NRS 179.285(1)(a) (emphasis added).
Finally, as relevant here, "[i]f a person wishes to have more
than one record sealed and would otherwise need to file a petition in more
than one court," that person may instead "file a petition in district court for
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the sealing of all such records." NRS 179.2595(1). This includes "records in
the justice or municipal courts." NRS 179.2595(2).
These are the procedures set forth in the statutes for
determining whether a court may seal a conviction. The next question at
stake in this appeal relates to the legal consequences that follow once a
conviction is sealed.
Nevada courts have discretion to consider sealed convictions for purposes of
determining whether a prior conviction is eligible to be sealed
Finley argues that, if his most recent conviction was sealed,
that sealing would make his earlier convictions eligible for sealing, and the
district court should then unroll his prior convictions in reverse
chronological order all the way to the beginning of his criminal record. But
Finley overstates the legal effect of sealing.
The Nevada Supreme Court has remarked that, once a record
is sealed, "all proceedings in the record and all events and proceedings
relating to the [conviction] are deemed never to have occurred." Frangul,
110 Nev. at 51, 867 P.2d at 399 (quotation marks omitted). This applies to
the sealing process itself. See NRS 179.245(7) (providing that if the court
grants a petition to seal records pursuant to that section, it may also seal
"all records of the civil proceeding in which the records were sealed").
Moreover, the court has held that the purpose of Nevada's record-sealing
statutes is "to remove ex-convicts criminal records from public scrutiny and
to allow convicted persons to lawfully advise prospective employers that
they have had no criminal arrests and convictions with respect to the sealed
events." Baliotis v. Clark Cty., 102 Nev. 568, 570, 729 P.2d 1338, 1340
(1986); see also Zana v. State, 125 Nev. 541, 545, 216 P.3d 244, 247 (2009)
("[S]ealing orders are intended to permit individuals previously involved
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with the criminal justice system to pursue law-abiding citizenship
unencumbered by records of past transgressions.").
But this principle is not quite as broad as it may appear. For
example, the court has held that it applies only to events related to criminal
proceedings, not to the underlying conduct giving rise to the proceedings or
separate civil proceedings stemming from that conduct.3 See Frangul, 110
Nev. at 50-51, 867 P.2d at 399-400. "[The sealing statute] erases an
individual's involvement with the criminal justice system of record, not his
actual conduct and certainly not his conduces effect on others." Zana, 125
Nev. at 546, 216 P.3d at 247. In Baliotis, the court noted that "Where is no
indication that the statute[s] w [ere] intended to require prospective
employers or licensing authorities to disregard information concerning an
applicant that is known independently of the sealed records." 102 Nev. at
570, 729 P.2d at 1340. Accordingly, the court held that "persons who are
aware of an individual's criminal record!' are not required "to disregard
independent facts known to them," even if the individual is otherwise
authorized to disavow those facts. Id. at 571, 729 P.2d at 1340. However,
where proof of the conviction itself is at issue—at least in the context of
impeaching a witness at trial with a prior conviction—the court concluded
that a sealed conviction is deemed never to have occurred and thus will not
suffice as proof of that conviction, even though the State may still possess
3Fin1ey argues that the statute should be construed in his favor under
the rule of lenity, but the rule of lenity is "a rule of construction that
demands that ambiguities in criminal statutes be liberally interpreted in
the accused's favor." State v. Lueero, 127 Nev. 92, 99, 249 P.3d 1226, 1230
(2011) (alterations and internal quotation marks omitted). A petition to
seal records is a civil proceeding, not a criminal prosecution, and
furthermore the statutes are not ambiguous so no rule of construction is
needed to interpret them.
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independent records of it. Yllas v. State, 112 Nev. 863, 866-67, 920 P.2d
1003, 1005 (1996).
Here, Finley argues that his most recent conviction may be
sealed because the requisite amount of time has passed. He then contends
that once that conviction is sealed, it is deemed never to have occurred, and
thus a district court may not consider that conviction when determining
whether another previous conviction may also be sealed. He argues that
once the latest conviction is sealed, that makes the preceding conviction
eligible to be sealed even if it otherwise would not have been subject to
sealing because of the later conviction. From there, he contends that once
that later conviction is sealed, that makes the next preceding one eligible to
be sealed, and so on, and so on, backwards in time. Finley avers that he
could have effectuated this process by filing a petition to seal in each court
in which he was convicted going back in time so that he could one-by-one
remove each conviction from the next courfs consideration of whether he
was eligible to file a petition to seal.
Though seemingly logical, the flaw in Finley's argument lies in
a portion of the statute that neither he nor the other parties cited either
below or on appeal to this court. NRS 179.295 generally governs the extent
to which courts may permit the inspection of sealed records in certain
circumstances. NRS 179.295(4) states that "[t]his section does not prohibit
a court from considering a conviction for which records have been sealed
pursuant to . . . [NRS] 179.245 . . . [or] 179.2595 . . . in determining
whether to grant a [criminal record sealing] petition . . . for a conviction of
another offense." Thus, this statute clarifies that even though a conviction
is normally deemed nonexistent for most purposes once sealed, the court
can still consider it for purposes of determining whether other previous
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convictions may be sealed. In other words, the sealing of the latest
conviction in time does not necessarily render a previous conviction eligible
to be sealed just because the latest conviction has been removed from the
record. Because NRS 179.295(4) utilizes discretionary language (i.e., the
court is "not prohibidedl" from considering a sealed conviction), a court may
use the sealing of a later conviction in order to seal an earlier conviction,
but it is not required to do so.
Consequently, a court possesses discretion to use the sealing of
later convictions in order to go backwards in time and seal prior convictions
that otherwise could not have been eligible to be sealed, but it may also
exercise its discretion to refuse to seal prior convictions based upon
convictions it just sealed. This discretion is emphasized in two different
places in the statutory scheme: in NRS 179.295(4), which permits ("does not
prohibit") a court to consider a sealed conviction in order to determine
whether another conviction is subject to sealing; and also in NRS
179.245(5), under which even "Wf the court finds" there are no convictions
within the applicable period, including other convictions that may have
been sealed, the court "may" (or may not) order the conviction sealed.
Accordingly, a court may do what Finley wants, which is to unroll and seal
every conviction in reverse chronological order all the way back to the first
conviction, or it may choose not to do so by exercising the discretion granted
under either statute, or both.
We therefore conclude the district court erred by finding that
all of Finley's convictions were ineligible to be sealed, and we reverse and
remand this matter to the district court to conduct the analysis set forth
above. It appears from the existing record that Finley satisfied the requisite
waiting periods to file a sealing petition with respect to all of the listed
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convictions, as more than ten years have passed since the relevant date of
release from those convictions, and Finley might not have been convicted of
any offense following his release from probation for his most recent
convictions, including his 2004 battery domestic violence conviction (with
one significant caveat).4 They thus appear eligible for sealing. If the district
court finds this to be true as a factual matter, the district court must then
consider whether to exercise its discretion to seal Finley's most recent
convictions. Should the district court determine that sealing is warranted
for those convictions, it may then exercise its discretion whether or not to
consider those sealed convictions when determining whether Finley has
satisfied the requisite waiting periods for other prior convictions.
CONCLUSION
Because the parties did not cite all of the proper statutes
governing Finley's petition and the district court did not apply all
of the controlling statutes, the court incorrectly concluded that
all of Finley's convictions were ineligible for sealing. Accordingly, we
4In its briefing, the City suggests for the first time on appeal that
Finley was convicted of offenses in other states during the requisite waiting
periods, thereby rendering some of his convictions ineligible for sealing
regardless of what happens to his latest conviction in Nevada. Because
these were mentioned for the first time on appeal, nothing about them
appears in the record below and the district court never considered them.
Whether those convictions were accurately described or not presents a
factual question that we cannot resolve on appeal, and thus the district
court must resolve those factual issues in the first instance on remand and
determine the extent to which the out-of-state events might affect the
disposition of Finley's petition. See Ryan's Express Transp. Servs., Inc. v.
Amador Stage Lines, Inc., 128 Nev. 289, 299-301, 279 P.3d 166, 172-73
(2012) (noting that "fain appellate court is not particularly well-suited to
make factual determinations in the first instance" and remanding for an
evidentiary hearing before the district court).
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reverse the district court's order denying Finley's petition and remand for
further proceedings consistent with this opinion.
....-----
J.
Tao
We concur:
, J.
Bulla
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