Turley v. State

DAVID M. GLOVER, Judge.

|Jn this case, the issue is whether the trial court erred in denying appellant Joshua Turley’s petition to seal his criminal record pursuant to Arkansas Code Annotated section 16 — 93—303(b) (Supp.2011). We hold that the trial court erred, and we reverse and remand this case for entry of an order consistent with this opinion.

On August 24, 2009, Turley pleaded guilty to four Class C felony drug charges. He was placed on six years’ probation¹ pursuant to Act 346 of 1975 (codified at Ark.Code Ann. §§ 16-93-301 to -303), which authorizes a trial court to defer proceedings, place a first-time offender on probation, and then dismiss the case and expunge the record at the ^termination of the defendant’s probation. The plea agreement, order, and probation agreement were all filed of record on September I, 2009.

Three years later, on August 29, 2012, an order was filed releasing Turley early from his probation. This order was agreed to by the State and provided, in pertinent part:

2.The defendant has served his time and completed the long-term drug treatment program at RPF, paid all restitution, costs, and fees as ordered by the Court, remained on good behavior, and complied with all of his probation officer’s requests and directives.

3.The defendant should be, and he is hereby, released from the remainder of his probation period.

IT IS SO ORDERED, AS PER AGREEMENT OF THE PARTIES.

(Emphasis added.)

Thereafter, on September 9, 2012, Tur-ley filed a petition to dismiss and seal his record. At that time, the State reversed its earlier position and opposed Turley’s petition, contending that Turley had violated the terms and conditions of his probation when he was found guilty of driving while intoxicated on March 6, 2011, while he was still on probation. The State also alleged that other offenses appeared on Turley’s Arkansas Crime Information Center report on which it was then obtaining information. The State argued that pursuant to Luevano v. State, 2012 Ark. App. 436, 2012 WL 3744797, the trial court was not required to expunge Turley’s record. After a hearing in November 2012, the trial court refused to seal Turley’s record, finding that while Turley had been released early from his probation, he had violated his probation by committing DWI in March 2011 while still on probation and, pursuant to Luevano, Turley’s petition to dismiss was denied. Turley then filed this appeal.

|sThe issue before our court is solely one of law, a question of statutory interpretation. Arkansas Code Annotated section 16-93-303 (Repl.2006) is the statute directly involved, and it provides in pertinent part:

(a)(3) Nothing in this subsection shall require or compel any court of this state to establish first offender procedures as provided in this section and §§ 16-93-301 and 16-93-302, nor shall any defendant be availed the benefit of this section and §§ 16-98-301 and 16-93-802 as a matter of right.

(b) Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and expunge the record, if consistent with the procedures established in § 16-90-901 et seq.

Turley argues that the trial court erred in not entering an order expunging his record because he had been released early from his probation by the trial court. The State argues, again citing Luevano, supra, that because Turley violated the terms and conditions of his probation prior to being released early from his probation, the trial court did not err in refusing to expunge Turley’s record. We hold that the Lueva-no decision is inapplicable to this case. There, the defendant violated the terms of his probation, but the trial court did not revoke his probation. After Luevano’s probation had expired, he petitioned the trial court to expunge his record; the trial court declined to do so, and Luevano appealed to this court. This court affirmed the trial court’s refusal to expunge Lueva-no’s record, holding that the decision of whether to immediately enter an adjudication of guilt upon the violation of a condition of probation is within the trial court’s discretion, and failure to | ¿revoke had no bearing on whether Luevano had fulfilled the terms and conditions of his probation pursuant to Arkansas Code Annotated section 16 — 93—303(b).

Here, Turley freely admits that he violated the terms and conditions of his probation; however, he argues that he is not attempting to have his record expunged under the provision within the statute that he had fulfilled the terms and conditions of his probation. Rather, he contends that the trial court is required to expunge his record because he had been released by the court prior to the termination of his probation period, and, in that situation, the statute requires that the trial court shall discharge the defendant without court adjudication of guilt. We agree with his assertion. Subsection (b) of Arkansas Code Annotated section 16-93-303 provides that “[ujpon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof,” a person who is dealt with under the first-offender procedures “shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and expunge the record.... ” (Emphasis added.)

The basic rule of statutory interpretation is to give effect to the intent of the legislature. State v. Martin, 2012 Ark. 191, at 3, 2012 WL 1548076. Where the language of the statute is plain and unambiguous, we determine the legislative intent from the ordinary meaning of the language used. Id. at 3-4, 2012 WL 1548076. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The word “shall” when used in a statute means that the legislature intended mandatory | ^compliance -with the statute unless such an interpretation would lead to an absurdity. Loyd v. Knight, 288 Ark. 474, 477, 706 S.W.2d 393, 395 (1986).

Furthermore, the statute here at issue is written in the disjunctive, not the conjunctive — the two provisions stand alone and are not dependent on each other. Quite simply, if a defendant is released early from his probation under this statutory provision, he is not also required to prove that he fulfilled the terms and conditions of his probation. The State apparently-agreed to Turley’s early release from probation without researching whether Turley had in fact been compliant with the terms and conditions of his probation. When Turley was released from his probation early by the trial court’s order, the trial court was then required to expunge Tur-ley’s record.

The dissent relies on subsection (a)(3) to grant the trial court discretion to deny expungement as provided for in subsection (b). We hold that that provision exclusively addresses the discretion of the trial court whether to establish first-offender procedures and place a defendant under these procedures.² Once the trial court places a defendant under first-offender status, however, it is bound by the requirements set forth in subsection (b), which provides that if the defendant is released from his probation early by the trial court, the trial court shall expunge his record — there is no discretion.

|fiThe dissent also cites Barnett v. State, 366 Ark. 427, 236 S.W.3d 491 (2006), in which our supreme court held that section 16-93-303 makes it clear that no defendant has a right to expungement. The issue in Barnett was whether the State breached its plea agreement when it opposed the expungement of his record (when the first-offender statute was amended to exclude sex offenders of minors, Barnett’s offense) during his probation period; our supreme court held that expungement had not been a term of Barnett’s plea agreement with the State. The Barnett court correctly stated that no defendant is entitled to ex-pungement — the statute clearly states that trial courts are not required to establish first-offender procedures. However, when a trial court does establish such procedures, and when a defendant is in fact accepted under the first-offender procedures, subsection (b) then becomes the applicable subsection.

As discussed above, subsection (b) offers two separate scenarios under which a trial court shall discharge the defendant without court adjudication of guilt and expunge the defendant’s record — (1) when the terms and conditions of probation have been fulfilled, or (2) upon the defendant’s release by the court prior to the termination of the probation period. The trial court released Turley early from his probation. It did so by an order with which the State agreed. The statute further mandates that the trial court discharge Turley without an adjudication of guilt and expunge his record. The trial court erred in refusing to do so.

|7Reversed and remanded.

WYNNE, WHITEAKER, and VAUGHT, JJ., agree. HARRISON and GRUBER, JJ., dissent.

1 . Two of the conditions of Turley’s probation included not committing a criminal offense punishable by imprisonment and not drinking or possessing alcoholic beverages.

2 . We note that Act 1460 of 2013 amended Arkansas Code Annotated section 16-93-303. Subsection (a)(3) now provides, "This subsection does not require or compel any court of this state to establish first offender procedures as provided in this section and §§ 16-93-301 and 16-93-302.”