Turley v. State

RITA W. GRUBER, Judge,

dissenting.

Because I think a trial court has discretion to grant or deny expungement under Ark.Code Ann. § 16-93-303,1 respectfully dissent. I agree with the majority that our decision in Luevano does not decide this case or support the State’s position. Although the trial court relied on Luevano’s holding that failure to revoke a defendant’s probation “ha[d] no bearing on the issue of whether a defendant fulfilled the terms of his probation for expungement purposes,” that was not the trial court’s ultimate decision in this case. The trial court determined that appellant did not comply with the terms of his probation and denied his petition. Indeed, the trial court’s final pronouncement from the bench makes clear that it thought it had discretion to deny appellant’s petition: “I find that the defense motion to seal the record is denied. It is in this Court’s discretion to do that. I find that he did not follow the terms of his probation by ingesting or drinking alcohol and subsequently being convicted of DWI while this matter was pending.”

The majority interprets section 16-93-301(b) in isolation. This is where I differ. This court reads statutes as a whole to determine their meaning. Ark. Elec. Energy Consumers, Inc. v. Ark. Pub. Serv. Comm’n, 2012 Ark. App. 264, at 9, 410 S.W.3d 47, 52. A particular provision in a statute must be construed with reference to the statute as a whole. Gomez v. Crossland Constr. Co., 2011 Ark. App. 787, at 6-7, 2011 WL 6189473; see also Boyd v. State, 313 Ark. 171, 173, 853 S.W.2d 263, 265 (1993). Here, looking at the relevant statute as a whole, the court did have discretion under Ark.Code Ann. § 16-93-303 (Supp.2011) to deny appellant’s petition for expungement because subsection 303(a)(3) provides that no defendant may be “availed the benefit of this section and §§ 16-93-301 and 16-93-302 as a matter of right.”¹ The majority’s interpretation leads to an absurd result, requiring a court to expunge the record of defendants who admittedly violated terms and conditions of their probation if they were released before the term expired but allowing a court to deny expungement to defendants who also violated terms and conditions of probation but who served the entire probationary period.

One of the stated reasons for Act 346 of 1975 was the legislature’s concern that the courts were “clothed with very little discretion and have limited alternatives in the disposition of cases involving first offenders.” See Act 346 of 1975. While not determinative of the legislature’s intent, the language in the Act itself and in the Arkansas Statutes contained two notable differences from the statutory language as modified by the Arkansas Code Revision Commission for placement in the 1987 Arkansas Code Annotated. What is now subsection 303(a)(3) provided that “[n]oth-ing herein shall require or compel any court of this state to establish first offender procedures as provided in this Act nor shall any defendant be | availed the benefit of this Act as a matter of right.” See Act 346 of 1975 and Ark. Stat. § 43-1232 (Repl.1977) (emphasis added). This language suggests that none of the provisions in the entire Act are provided to a defendant as a matter of right and that the court has discretion under the entire Act. The Revision Commission also removed a comma from what is now subsection 303(b), causing what was seemingly an aside to appear not to be. It previously read: “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-” Ark. Stat. § 43-1233. The use of two commas around the early release language suggests that the legislature was simply attempting not to leave out the situation where a defendant was released from probation before the termination of his sentence. It does not appear that the legislature was attempting to tie the court’s hands in such a situation or place that defendant in a better position than a similarly errant defendant who completed the entire term of probation. See Cox v. City of Caddo Valley, 305 Ark. 155, 806 S.W.2d 6 (1991) (providing that an act or statute is not controlling if it was changed or modified by the Arkansas Code Revision Commission in a manner not authorized by the laws or constitutions of Arkansas in effect at the time of the change or modification) (citing Ark.Code Ann. § l-2-103(a)(3)).

Although our supreme court has not directly addressed this issue, dicta suggests that a defendant does not have a right to expungement. In Barnett v. State, 366 Ark. 427, 435, 236 S.W.3d 491, 495 (2006), the court said that “section 16-93-303 makes clear that no defendant has a right to expungement: ‘nor shall any defendant be availed the benefit of [ 10[expungement] as a matter of right.’ Ark.Code Ann. § 16-93-303(a)(3) (Repl.2006).” In Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488, the court stated:

We find no support for the idea that the statutes in question combine to create a liberty interest. First of all, section 16-93-303(a)(3) clearly states: “Nothing in this subsection shall require or compel any court of this state to establish first-offender procedures as provided in §§ 16-93-301-16-93-303, nor shall any defendant be availed the benefit of §§ 16-93-301-16-93-303 as a matter of right.” Where there is no right to expungement under a statute, it follows logically that the statute creates no liberty interest in having a “clean record.”

Id. at 10, 384 S.W.3d at 496. The majority interprets this language as merely reiterating the fact that a defendant is not entitled to first-offender procedures. This is not what the court said. It said a defendant is not entitled to expungement.

Finally, in my view, ignoring subsection 303(a)(3) and literally interpreting subsection 303(b) in isolation as the majority has done leads to an absurd result when an alternative interpretation of the whole statute seems to better effect the purpose of Act 346.² Therefore, I would affirm the court’s order.

HARRISON, J., joins.

1 . The majority notes that Act 1460 of 2013 amends section 16-93-303(a)(3). Act 1460 is not effective until January 1, 2014, and contains an entirely new comprehensive procedure detailing the burden of proof and the factors to be considered by a court in determining whether to grant a petition to seal. That Act does not apply to this case, and it is not clear what effect that Act will have on future cases without examining all its provisions, not only its amendment to section 16-93-303(a)(3).

2 . Dep’t of Career Educ., Div. of Rehab. Servs. v. Means, 2013 Ark. 173, at 11, 426 S.W.3d 922, 929 ("This court has consistently held that it will not engage in statutory interpretations that defy common sense and produce absurd results.”); Searcy Cnty. Counsel for Ethical Gov't v. Hinchey, 2013 Ark. 84, at 7, 2013 WL 781099 ("[W]e will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent.”).