Opinion
Case No. 118,068
12-01-2020
V.C.B., Petitioner/Appellant, v. The STATE of Oklahoma, Respondent/Appellee.
Michael A. Risley, MICHAEL A. RISLEY, ATTORNEY & COUNSELOR AT LAW, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant Richard L. Smothermon, CHIEF COUNSEL, OKLAHOMA STATE BUREAU OF INVESTIGATION, Jessie K. Heidlage, ASSISTANT GENERAL COUNSEL, OKLAHOMA STATE BUREAU OF INVESTIGATION, Oklahoma City, Oklahoma, for Respondent/Appellee
Michael A. Risley, MICHAEL A. RISLEY, ATTORNEY & COUNSELOR AT LAW, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant
Richard L. Smothermon, CHIEF COUNSEL, OKLAHOMA STATE BUREAU OF INVESTIGATION, Jessie K. Heidlage, ASSISTANT GENERAL COUNSEL, OKLAHOMA STATE BUREAU OF INVESTIGATION, Oklahoma City, Oklahoma, for Respondent/Appellee
OPINION BY P. THOMAS THORNBRUGH, PRESIDING JUDGE: ¶1 Petitioner V.C.B. appeals a decision of the district court denying expungement based on the court's interpretation of the applicable date of successful completion of a deferred sentence pursuant to the expungement statute. On review, we find the district court erred in its interpretation of the statute, and reverse.
BACKGROUND
¶2 On January 5, 2012, Appellant was arrested by the City of Edmond Police Department (City of Edmond) for uttering a forged instrument. He was subsequently charged with Felony Forgery, 2nd Degree, in Oklahoma County Case No. CF-2012-537. He pled guilty, and received a two-year deferred sentence, beginning on February 23, 2012, and ending on February 23, 2014. On June 26, 2013, while the deferred sentence was pending, the Oklahoma County District Attorney's Office filed an application to accelerate, alleging that Appellant was not in compliance with the terms of his supervision.
¶3 On September 22, 2014, seven months after the deferred sentence had expired, Appellant appeared and entered a not guilty plea to the acceleration. The decision on acceleration never came before the court for hearing, and the acceleration application was dismissed at the State's request on November 11, 2014.
¶4 Appellant filed a petition for expungement in February of 2019, alleging that five years had passed from the termination of his deferred sentence on February 23, 2014, as required by 22 O.S. § 18(A). The district attorney who filed the application to accelerate and the City of Edmond (the arresting agency) both signed a proposed order agreeing to the expungement.
¶5 However, the Oklahoma State Bureau of Investigation (OSBI) objected, stating that the district attorney's application to accelerate tolled Appellant's five-year expungement qualification date until the application was dismissed on November 11, 2014—five years from the district attorney's dismissal of the application to accelerate, and not five years from the expiration of the supervision and deferment period. The district court held a hearing on the matter and agreed with the OSBI, resulting in the denial of Appellant's expungement. This appeal is the result.
STANDARD OF REVIEW
¶6 The right to expungement of criminal records is governed by statute. Holder v. State , 2009 OK CIV APP 1, ¶ 5, 219 P.3d 562. Given that the underlying facts are not disputed here, the question becomes solely one of law, which we review de novo. Buechler v. State , 2008 OK CIV APP 1, ¶ 5, 175 P.3d 966. Further, statutory construction presents a question of law, which is also subject to de novo review. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550 ; World Publ'g Co. v. Miller , 2001 OK 49, ¶ 7, 32 P.3d 829.
¶7 When construing a statute, the Court does not limit itself to the consideration of a single word or phrase. Rather, we look to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent. Nevertheless, the plain and ordinary meaning of the language utilized is the standard for determining intent. State v. L.G. , 2020 OK CIV APP 17, ¶ 11, 465 P.3d 1273. The intent of Oklahoma's expungement statute is "to aid those who are acquitted, exonerated, or who otherwise deserve a second chance at a ‘clean record.’ " Buechler, 2008 OK CIV APP 1 at ¶ 6, 175 P.3d 966.
ANALYSIS
I. MOOTNESS
¶8 OSBI first argues in its brief that, since its confessed expungement eligibility date of November 25, 2019 has now passed, "this court cannot grant relief to the appellant that is not already available to him." We disagree with OSBI's interpretation of this Court's powers. OSBI argues that the passage of time has rendered this appeal moot. Oklahoma, however, recognizes two distinct exceptions to the mootness doctrine: 1) when an appeal presents a question of broad public interest, and 2) when the challenged event is capable of repetition, yet evading review. Scott v. Oklahoma Secondary School Activities Ass'n , 2013 OK 84, ¶ 14, 313 P.3d 891 ; Baby F. v. Oklahoma Cty. Dist. Court , 2015 OK 24, ¶ 12, 348 P.3d 1080.
¶9 This case clearly presents a matter of public interest. The issues here are not confined to a single litigant or a rare factual situation, but are common to all persons who have received a deferred sentence, and had an acceleration filed during that sentence. Further, OSBI's challenged behavior is not only capable of repetition, but clearly will likely be repeated, as OSBI's briefing argues that it has correctly interpreted the expungement statute.
II. THE STATUTORY QUESTION
¶10 Title 22, Section 18(A) provides:
Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories.
....
(9) The person was charged with a nonviolent felony offense not listed in Section 571 of Title 57 of the Oklahoma Statutes, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person and at least five (5) years have passed since the charge was dismissed. (Emphasis added).
¶11 This case revolves around the interpretation of the phrase "successful completion" in the above statutory section. OSBI argues that, if an acceleration is filed before the expiration of a deferred sentence, and not dismissed until after the expiration of the deferred sentence, the date of "successful completion" is the date that the acceleration was dismissed, not the ending date of the deferred sentence.
¶12 It appears, pursuant to the plain and ordinary meaning of the language utilized, that a deferred sentence is "completed" on the date set by the court for its expiry, unless that date is somehow extended by the court as a sanction, or the deferred sentence is accelerated. OSBI first argues, however, that "it is an absurd contention that a defendant has successfully completed a deferred sentence despite the court still exercising the authority to impose a sanction."
¶13 We have no doubt that, had the court actually "exercise[ed] the authority to impose a sanction" which revoked, or extended the term of the deferred sentence, the date of "successful completion" for expungement purposes would change. The district court did not do so, however. It did not exercise any authority. The district attorney's office, the entity that sought the sanction, dropped its request.
We note that both the district attorney's office (the entity that requested the acceleration then dismissed it) and City of Edmond (the arresting agency) signed an agreed order on expungement. OSBI is inherently arguing that the district attorney and City of Edmond are misinterpreting the law by doing so.
¶14 It is equally incongruous to argue that a filing which, as a matter of fact and law, did not result in a change in the stated expiration date of the period of supervision, or the imposition of any additional sanction or sentence, changes the date of completion for the purposes of the expungement statute. Indeed, pursuant to OSBI's argument, the expungement date would be extended even if the court had ruled on the motion to accelerate and found it totally unjustified, or even if the motion to accelerate had been filed in the wrong case . It appears a matter of simple common sense that, in the absence of any court decision accelerating, extending or otherwise changing the term of a deferred sentence , the date of expiration controls for expungement purposes.
III. THE EXPUNGEMENT STATUTE DOES NOT AFFECT THE CRIMINAL COURT'S JURISDICTION
¶15 Nonetheless, OSBI argues that a serious jurisdictional problem will arise unless we adopt its interpretation of the expungement statute:
If this Court accepts the Appellant's argument that successful completion of a deferred sentence occurs regardless of the pendency of an application to accelerate, then any sanctions or sentence modifications imposed by the court would be unauthorized, as the court would no longer have jurisdiction. The mere dismissal of an application to accelerate a deferred sentence simply cannot have retroactive effect because that would result in a loss of jurisdiction by the trial court, despite the application to accelerate.
¶16 The first part of the paragraph constitutes a clear misinterpretation of both Appellant's arguments and the issue before this Court. The question is not whether a trial court retains jurisdiction to hear a pending application to accelerate filed before the expiration of supervision and deferment. The question is whether the pendency of a refused or dismissed application extends the date of completion.
¶17 The second part is a reformulation of a common first-year law school question: "If a court decides at a hearing that it has no jurisdiction over the case, where did it get the jurisdiction to make that decision?" We are cited to no authority for the proposition that an interpretation of the effective date of completion for the purposes of the expungement statute somehow affects or changes the jurisdiction of a criminal court . This situation can better be likened to one that arises regarding a civil court's power to award sanctions after a dismissal. Despite the fact that a voluntary dismissal by a plaintiff ends a case, "a trial court retains jurisdiction to impose sanctions for plaintiff's violation of court orders entered before plaintiff has voluntarily dismissed the case." Barnett v. Simmons , 2008 OK 100, ¶ 13, 197 P.3d 12. The same principle appears applicable here. No jurisdictional question is implicated.
Further, in the circumstances here, the statutory right to seek expungement does not arise until five years have passed from the termination of a deferred sentence. No court will normally still be considering (without decision) an acceleration or other sanctions request more than five years after it was filed. We can foresee only one situation in which a motion to accelerate could be open after five years, and it is an unusual one: If a defendant subject to a deferred sentence and terms of probation absconds before completing the terms of the deferment, a motion to accelerate is filed and a warrant issued but the defendant is not arrested for more than five years. Those are not the facts here, however, and the fact that the motion was still pending would clearly confer jurisdiction on the trial court to decide it.
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CONCLUSION
¶18 We find the statute and law clear in this matter:
1. The trial court obviously retains jurisdiction to hear an acceleration that is filed before the completion date, even if the completion date has expired by the time of the hearing;
2. If an acceleration is still pending, the defendant has not yet "successfully completed" the terms of the deferment;
3. If the court imposes any additional sanction that revokes the deferred sentence or extends the period of supervision, the date of completion is changed for the purposes of the expungement statute;
4. If the court does not impose any additional sanction that changes the period of supervision, or the district attorney's office dismisses the application, the date of completion is not changed for the purposes of the expungement statute.
¶19 We hold that the decision of the district court as to the completion date was in error. Because Appellant has now received an expungement, no further action is necessary.
¶20 REVERSED.
WISEMAN, C.J., and HIXON, J., concur.