Opinion
CR-20-0020
02-05-2021
EX PARTE Madian KHOULY (In re: State of Alabama v. Madian S. Khouly)
Robert M. Echols, Jr., Birmingham, for petitioner. Submitted on certiorari petition only.
Robert M. Echols, Jr., Birmingham, for petitioner.
Submitted on certiorari petition only.
COLE, Judge.
Madian Khouly has filed a petition for a writ of certiorari, asking this Court to review the Shelby Circuit Court's decision to deny his petition for expungement of records relating to his charge of sexual abuse of a child less than 12 years old. For the following reasons, we deny the petition.
Facts and Procedural History
From 2014 to 2018, Khouly and his wife were embroiled in divorce proceedings, which Khouly initiated. During that time, Khouly's wife alleged that Khouly had sexually abused their 11-year-old daughter. That sexual-abuse allegation, and their daughter's statements corroborating it, resulted in Khouly's being indicted for sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975.
Khouly's marriage was dissolved in 2018, and, soon after the divorce decree was entered, the sexual-abuse indictment against Khouly was dismissed "with prejudice." The circuit court's dismissal order indicated that, in exchange for the indictment being dismissed "with prejudice," Khouly agreed to release the State and any "persons in any way related to this matter" from "all civil and criminal liability stemming directly or indirectly from the instigation, investigation, pursuit, arrest, incarceration, prosecution, defense, or any other aspect of this case and any companion case." (Khouly's petition, Appendix 1A.)
On May 1, 2019, Khouly's daughter executed an affidavit, detailing her volatile relationship with her mother (i.e., that her mother often calls her "a ‘slut,’ a ‘peasant,’ and a ‘loser’ "). (Khouly's petition, Appendix 1A.) Khouly's daughter also explained the circumstances surrounding the sexual-abuse allegation as follows:
"My father was charged with a sex abuse crime when I was about 11 or 12 years old. My mother forced me to testify to investigators that my father committed sex acts against me, but these stories were not true. I did not have any choice but to make false statements against my father because my mother threatened me and forced me to make these claims. My father has never sexually abused me at any time in my life."
(Khouly's petition, Appendix 1A.) Khouly's daughter also said that she could "no longer live with [her] mother and put up with her conduct" and that she wanted "to live with [her] father and [her] brothers." (Khouly's petition, Appendix 1A.)
On May 11, 2020, Khouly filed a "Petition for Expungement of Records," pursuant to § 15-27-1 et seq., Ala. Code 1975, seeking to have the records relating to his sexual-abuse charge expunged and stating as grounds for the expungement that his "daughter was forced to lie and make a false charge against [him] as part of a divorce case in Shelby County," that he "did not commit any offense," that his "case was dismissed with prejudice," and that 90 days had passed since that dismissal and charges have not been refiled. (Khouly's petition, Appendix 1A.) Khouly attached his daughter's affidavit to his petition for expungement.
On June 25, 2020, the State filed its objection to Khouly's petition for expungement, arguing that, "[a]ccording to the Expungement Statute, this offense is not subject to Expungement." (Khouly's petition, Appendix 1D.)
On September 28, 2020, the circuit court held a hearing on Khouly's petition for expungement. (Khouly's petition, Appendix 2.) At that hearing, the circuit court heard arguments from both the State and Khouly as to whether records relating to a charge of sexual abuse of a child less than 12 years old may be expunged. While making his argument, Khouly asked the circuit court if he could "offer some testimony" from his daughter. (Khouly's petition, Appendix 2.) The circuit court denied Khouly's request, explaining:
"Well, not at this stage. This is essentially in the nature of summary judgment right here where I determine whether or not it is an offense for which expungement is offered. I will tell you that I am indulging the affidavit that was filed in the case relating that there was a retraction by the victim. So really the issue depends on whether or not there is any discretion for me to grant expungement for this particular offense."
(Khouly's petition, Appendix 2.) At the conclusion of the hearing, the circuit court explained to the parties that it was going to deny Khouly's petition because Khouly had been charged with a "violent offense," and it further noted:
"Gentlemen, I will enter a written order to that effect. [Khouly's counsel], I do indulge the presumptions of the petition that this is a meritorious wrongfully charged, wrongfully accused individual, but nonetheless, my decision is one of law. I don't believe it would be appropriate for me to bleed over into the circumstances
of the case without getting past the threshold issue of whether or not this offense is one for which expungement is eligible."
(Khouly's petition, Appendix 2.)
After the hearing, the circuit court issued a written order denying Khouly's petition for expungement, finding that "the felony offense for which [Khouly] seeks expungement is a ‘violent offense’ and therefore not eligible for expungement." (Khouly's petition, Exhibit 1G.) Thereafter, Khouly filed a petition for a writ of certiorari with this Court.
Standard of Review
"This Court has recognized:
" ‘There is no provision in Chapter 27 of Title 15, "Expungement," for a direct appeal of the denial of a petition for expungement. Rather, § 15-27-5(c), Ala. Code 1975, states: "The ruling of the court shall be subject to certiorari review and shall not be reversed absent an abuse of discretion." Levins v. State, 285 So.3d 250 (Ala. Crim. App. 2016).'
" Bell v. State, 217 So. 3d 962, 963 (Ala. Crim. App. 2016). Further, ‘[a] judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.’ Albarran v. State, 96 So. 3d 131, 198 (Ala. Crim. App. 2011)."
Ex parte Steinberg, 294 So. 3d 835, 838 (Ala. Crim. App. 2019).
Discussion
In his petition for a writ of certiorari, Khouly argues that the circuit court erred "by not allowing [him] to present evidence to establish that he sought expungement of his record for an offense which was not committed." (Khouly's petition, p. 4.) But, as the circuit court correctly found, evidence of whether Khouly actually committed the offense of sexual abuse of a child less than 12 years old is irrelevant if the records relating to that specific offense cannot, as a matter of law, be expunged. As the circuit court correctly found, the threshold inquiry when a person petitions to have records of a felony offense expunged under § 15-27-2(a), Ala. Code 1975, is whether that felony offense is one for which related records can actually be expunged. Therefore, the circuit court did not err in refusing to hear testimony related to Khouly's "actual innocence" claim before the court determined whether the offense was one for which he was eligible to seek expungement of records.
Section 15-27-2(a)(5), Ala. Code 1975, allows a "person who has been charged with a [nonviolent] felony offense" to "file a petition in the criminal division of the circuit court in the county in which the charges were filed, to expunge records relating to the charge" when "[n]inety days have passed from the date of dismissal with prejudice ... and the charge has not been refiled." A person who is charged with a violent felony offense may seek expungement of records relating to that charge only when that person is "found not guilty of the charge." § 15-27-2(c)(1), Ala. Code 1975. Because Khouly did not proceed to trial and did not receive a "not guilty" verdict, he cannot seek expungement under § 15-27-2(c)(1). Furthermore, a felony offense cannot be expunged, under any of the circumstances set out in § 15-27-2(a), the expungement provision relied upon by Khouly, if that felony offense is "a violent offense as defined in Section 12-25-32[, Ala. Code 1975]."
A person who has been charged with a nonviolent felony offense may also seek expungement of records relating to that charge under other circumstances. See § 15-27-2(a)(1), (2), (3), (4), and (6), Ala. Code 1975, and § 15-27-2(b), Ala. Code 1975. In his petition for expungement, however, Khouly did not allege that any of those other circumstances applied to his case. Rather, Khouly alleged only that the charge against him had been dismissed with prejudice and that the State had not refiled charges after 90 days. Thus, we do not discuss the other circumstances.
Section 12-25-32(15) a., Ala. Code 1975, provides a list of 50 specific offenses that are considered "violent offenses." Section 12-25-32(15) b., Ala. Code 1975, explains that
"[t]he basis for defining these offenses as violent is that each offense meets at least one of the following criteria:
"1. Has as an element, the use, attempted use, or threatened use of a deadly weapon or dangerous instrument or physical force against the person of another.
"2. Involves a substantial risk of physical injury against the person of another.
"3. Is a nonconsensual sex offense.
"4. Is particularly reprehensible."
Section 12-25-32(15) a. also includes in its list of offenses "[a]ny substantially similar offense for which an Alabama offender has been convicted under prior Alabama law or the law of any other state, the District of Columbia, the United States, or any of the territories of the United States."
As Khouly correctly points out in his petition to this Court, sexual abuse of a child less than 12 years old is not mentioned in the list of offenses set out in § 12-25-32(15) a. that are excluded from expungement pursuant to § 15-27-2(a). However, § 12-25-32(15) d., Ala. Code 1975, expands the list of "violent offenses" by explaining that the phrase "violent offense" also means "[a]ny criminal offense which meets the criteria provided in paragraph b. enacted after 2003." Therefore, the question that must be answered by this Court is whether sexual abuse of a child less than 12 years old qualifies as a "violent offense" under § 12-25-32(15) d.
In 2006, the legislature created the offense of sexual abuse of a child less than 12 years old, see Act No. 2006-525, Ala. Acts 2006, which was codified at § 13A-6-69.1, Ala. Code 1975. Section 13A-6-69.1 provides that "[a] person commits the crime of sexual abuse of a child less than 12 years old if he or she, being 16 years old or older, subjects another person who is less than 12 years old to sexual contact." Any person who is less than 16 years old is incapable of consenting to sexual contact. See § 13A-6-70(c)(1), Ala. Code 1975 (providing that "[a] person is deemed incapable of consent if he or she is ... [l]ess than 16 years old"). In short, the offense of sexual abuse of a child less than 12 years old was enacted after 2003 and "[i]s a nonconsensual sex offense" excluded from expungement as a "violent offense" pursuant to § 12-25-32(15) b.3. Consequently, a person who is charged with sexual abuse of a child less than 12 years old cannot, as a matter of law, have the records relating to that charge expunged under § 15-27-2(a). Because the circuit court correctly found that the charge of sexual abuse of a child less than 12 years old is a violent offense and, thus, that the records relating to such a charge cannot be expunged, the circuit court did not err when it denied Khouly's petition for expungement. Accordingly, Khouly's petition for a writ of certiorari is denied.
Before 2006, when a person was 16 years old or older and subjected another person who was less than 12 years old to sexual contact, that conduct fell under the first-degree-sexual-abuse statute (an offense that is specifically mentioned in § 12-25-32(15) a. as a violent offense) and was punished as a Class C felony. When the legislature created the offense of sexual abuse of a child less than 12 years old in 2006, the legislature made that conduct punishable as a Class B felony.
PETITION DENIED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.