Gosnell v. State , 284 Ark. 299 ( 1984 )

George Rose Smith, Justice.

Under the Youthful Offender Alternative Service Act of 1975, a felony conviction of a person under 26 years of age may be expunged. Ark. Stat. Ann. §§ 43-2339 et seq. (Repl. 1977). The only question here is whether, when such a person later commits another felony, the expunged conviction may be used to enhance his sentence as an habitual offender. Our jurisdiction is under Rule 29 (1) (c). We agree with the circuit court’s ruling that the expunged conviction may be considered.

In February, 1980, the appellant, Don Gosnell, was convicted of two felonies and was sentenced to concurrent three-year sentences under the youthful offender act. In January, 1982, he successfully completed the rehabilitation program, and his convictions were expunged. In 1983, however, he committed a third felony, for which he was convicted in the case at bar, in January, 1984. The trial judge, sitting without a jury, considered the two expunged convictions in sentencing Gosnell as an habitual offender.

Broadly speaking, the statute gives a youthful offender an opportunity to mend his ways and return to free society without the disadvantages of a criminal conviction. Three provisions in the statute are pertinent to the question now before us:

A person who has had two or more previous felony convictions is not an “Eligible Offender” under this Act, and the fact that a felony conviction has been “expunged” shall not render the person an “Eligible Offender.” [§ 43-2340 (f).]

“Expunge” means an entry upon the official records . . . that such records shall be sealed, sequestered, treated as confidential and only available to law enforcement and judicial officials; and further signifying that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant. The term “expunge” shall not mean the physical destruction of any official records of law enforcement agencies or judicial officials. [§ 43-2340 (g)-]

Upon the expungement of such record, as to that conviction, the person whose record was expunged may thereafter state in any application for employment, license, civil right, or privilege, or in appearance as a witness that he has not been convicted of the offense for which he was convicted and sentenced or placed on probation under the provisions of this Act. [§ 43-2344.]

We think it clear that an expungement does not exempt a youthful offender from responsibility for that offense under the habitual criminal laws. The first section we have quoted carries that implication, for it provides that a youth who has had two or more previous felony convictions is not even eligible for the benefits of the statute and that one who commits a crime after one expungement cannot again qualify for similar clemency.

More important, it is a familiar rule, rooted in common sense, that the legislature’s affirmative statement of the effect of a statute is an implied denial of its having some other effect. The Latin maxim is expressio unius est exclusio alterius. Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946).

The rule applies here. The statute in question provides that (a) an expunged conviction shall not affect any civil rights or liberties of the defendant and (b) he may state in any application for employment, license, civil right, or privilege or in any appearance as a witness that he has not been convicted of the offense. Ark. Stat. Ann. §§ 43-2340 (g) and -2344 (Repl. 1977). It does not state that he is free to commit more felonies without accountability as an habitual criminal.

There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender’s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen’s duty to appear as a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.

Affirmed.

Hickman, Purtle, and Hollingsworth, dissent.