Cite as 2013 Ark. App. ARKANSAS COURT OF APPEALS DIVISIONS No. CR-13-161 JOSHUAH. TURLEY APPELLANT STATE OF ARKANSAS APPELLEE DAVID M. GLOVER, Judge In this case, the issue is whether the trial court erred in Turley's peririon to seal his criminal record pursuanr 16-93-303(b) (Supp. 2011). We hold that the triel court this case for entry ofan order consistent with this opinion. On August 24,2009, Turley pleaded guilry to four Class was placed on six years' probationr pursuanr Ann. $$ 16-93-301 to -303), which authorizes a trial court to defer proceedings, fint-time oft'ender on probation, and then dismiss the case and expunge the record lTwo of the condirions of Turley's probarion offense punishabie by imprisonment and not &inking or 427 I & IV Opinion Delivered l:une 26, 201,3 APPEAL FROM THE BENTON COUNTY CIRCUIT COURT lNo. cR-2008 -1649-2 (A)l HONORABLE BRAD KARREN, JIIDGE REVERSED AND REMANDED denying appellant Joshua 'co A.kansrs Code Annotated secrion erred, and we reverse and remand C felony drug charges. He to Act 346 of 1,97 5 (codi6ed ar Ark. Code place a at the included not comrnitting a criminal possessing alcoholic beverages.
termination of the deGndant's probation. The agreement were all filed of record on September 1,,2009. Three years later, on August 29, 201,2, an order his probation. This order was agreed to by the 2. The defendant has served his treatment program at RPF, paid all restitution, Court, remained on good behauior, and complied requests and directives. 3. The defendant should be, and he is hereby, probation period. IT IS SO ORDERED, AS PER AGREEMENT OF THE PARTIES. (Emphasis added.) Thereafter, on September 9, 2012, Turley filed a petition to dismiss and seal his' record. At that time, the State reversed its earlier contending that Turley had violated the terms and conditions of found guilry of driving while intoxicated probation. The State also alleged that other offenses appeared on Information Center report on which it was then obtaining that pursuant to Lueuano v. State, 2012 Ark. App. 436, expunge Turley's record. After a hearing in November Turley's record, finding that while Turley had been had violated his probation by committing DWI and, pursuant to Lueuano, Turley's petition to appeal. .,plea agreement, order, and probation was filed releasing Turley early from. State and provided, in pertinent part: time and completed the long-term drug costs, and fees as ordered by the with all of his probation officer's released from the remainder of his position and opposed Turley's petition, his probation when he was on March 6, 2071, while he was still on Turley's Arkansas Crime information. The State argued the trial couft was not required to 2072, the trial courr refused to seal-released early from his probation, he in March 2011 while still on probation dismiss was denied. Turley then filed this
The issue before our court is solely one of law, Arkansas Code Annotated seccion 16-93-303 and it provides in pertinent part: ("X3) Nothing in this subsection shall require establish fint offender procedures as provided L6-93-302, nor shall any defendant be availed 93-301 and 76-93-302 ts a matter of right. (b) Upon fulfillment of the terns and conditions court prior to the termination period thereof, without court adjudication of guilt, whereupon order that shall effectively dismiss the case, discharge record, if consistent with the procedures Turley argues that the trial court erred record because he had been released early from his argues, a,gin citing Lueuano, supra, that because Turley his probation prior to being released early from his refusing to expunge Turley's record. 'We hold this case. There, the defendant violated the terns not revoke his probation. After Luevano's probation court to expunge his record; the trial court declined court. This court affirmed the trial court's refusal to that rhe decision of whether to immediately enter violation of a condition of probation is within -J-a question of statutory interpretation. (Repl. 2006) is the statute directly involved, or compel any court of this state to in this section and $$ 16-93-301 and the benefit of this section and $$ 16-of probation or upon release by the the defendant shall be discharged the court shall enter an appropriate the defendant, and expunge the' established in $ 16-90-901 et seq. in not entering an order expunging his probation by the trial court. The State violated the terms and conditions of probation, the trial court did not err in that the Lueuano decision is inapplicable to of his probation, but the trial court did had expired, he peritioned the trial' to do so, and Luevano appealed to this expunge Luevano's record, holding an adjudication of guilt upon the the trial courc's discretion, and failure to
revoke had no bearing on whether Luevano had fulfilled probation pursuant to Arkansas Code Annotated section Here, Turley freely admits that he violated probation; however, he argues that he is not attempting the provision within the statute that he had fulfilled probation. Rather, he contends that the trial because he had been released by the court prior to the and, in that situation, the statute requires that the without court adjudication of guilt. 'We agree Arkansas Code Annotated section 16-93-303 provides and condicions of probation or upon release by the thereof" a person who is dealt with under discharged without court adjudication of guilt, appropriate order that shall efFectively dismiss the expunge the record . . . ." (Emphasis added.) The basic rule of statutory interpretation legislature. State u. Martin, 2072 Ark. 191, at and unambiguous, we determine the legislative language used. Id- at 3-4. In considering the reads, grving the words their ordinary and usually accepted Id. The word "shall" when used in a statute means -4-the terns and conditions of his 16-93-303(b). the terrns and conditions of his to have his record expunged under the terms and conditions of his' court is required to expunge his record termination of his probation period, trial court shall discharge the defendant with his assertion. Subsection (b) of that "[u]pon fulfillment of the terms court prior to the termination period the first-offender procedures "shall be whereupon the court shall enter an case, discharge the defendant, and is to give effect to the intent of the 3. Where the language of the statute is plain intent from the ordinary meaning of the meaning of a statute, we constme it just as it meaning in common language. that the legislature intended mandatory
compliance with the statute unless such an interpretation u. Knight,288 Ark. 474,477,706 S.'W.2d393,395 Furthermore, the statute here at issue is written conjunctive-the two provisions stand alone and are simply, if a defendant is released early from his is not also required to prove that he fulfilled the The State apparent\ agreed to Turley's early whether Turley had in fact been compliant with the terms 'W.hen Turley was released from his probation early was then required to expunge Turley's record. The dissent relies on subsection (a)(3) expungement as provided for in subsection (b). addresses the discretion of the trial court whether place a defendant under these procedures.2 Once first-offender status, however, it is bound by which provides that if the defendant is released che crial court shall expunee his record-there is no discretion. '-We note that Act 1460 of 2013 amended 93-303. Subsection (.)(3) now provides, "This courr of this state to establish first offenderprocedures 16-93-301 md 76-93-302 ;' -5-would lead to an absurdity. lryd (1986). in the disjunctive, not the not dependent on each other. Quite probation under this statutory provision, he terms and conditions of his probation. release from probation without researching and conditions of his probation. by the trial court's order, the triai coutt to grant the trial court discretion to deny We hold that that provision exclusively to establish first-offender procedures and the trial court places a deGndant under the requirements set forth in subsection (b), from his probation early by the trial court, Arkansas Code Annotated section 16-subsection does not require or compel any as provided in this section and $$
The dissent also cites Barnett u. state,366 which our supreme court held that section 1,6-93-303 a right to expungement. The issue in Barnett was agreement when it opposed the expungement of was amended to exclude sex offenders of minors, period; our supreme coufr held that expungement agreement with the State. The Barnet, court correctly expungement-the statute clearly states that trial offender procedures. However, when a trial court when a defendant is in fact accepted under the then becomes the applicable subsection. As discussed above, subsection (b) offers courr shall discharge the deGndant without court defendant's record-(1) when the terms and ionditions (2) upon the defendant's release by the court period. The trial court released Turley early from his which the State agreed. The statute further mandates without an adjudication of guilt and expunge to do so. -6-Ark. 427,236 S.W.3d 491. (2006), in makes it clear that no defendant has whether the State breached its plea his record (when the first-offender statute Barnett's offense) during his probation had not been a tern of Barnett's plea stated that no defendant is entitled to courts are not required to establish firsc-does establish such procedures, and first-offender procedures, subsection O) wvo separate scenarios under which a triai adjudication of guilt and expunge the of probation have been fulfilled, or' prior to the termination of the probation probation. It did so by an order with that the trial court discharge Turley his record. The trial court erred in refusing
Reversed and remanded. WyNNn, WHtrnRxrR, and VRUcHt,lJ., HaRRISoN and GRunER, JJ., dissent. Rrua W. GnusrR, Judge, dissenting. ro grant or deny expungement under Ark. Code agree with the majoriry that our decision in Lueuano Stare's position. Although the trial court relied on a defendant's probation "ha[d] no bearing on the terrns of his probation for expungement purposes," decision in this case. The trial court determined that of his probation and denied his petition. Indeed, the the bench makes clear that it thought it had discretion that the defense motion to seal the record is denied. I find that he did not follow the terms of his probation by subsequently being convicted of DWI while this The majoriry interprets section 16-93-301,(b) court reads statutes as a whole to determine their meaning. u. Ark. Pub, Seru. Comm'n,2012 Ark. App. 264, at 9, provision in a statute must be construed with reference to Crossland Constr. Co.,201.1 Ark. App.787, at 6-7; see -7-agree. Because I think a trial court has discretion Ann. $ 1,6*93-303, I respectfully dissent. I does not decide this case or support the Lueuano's holding that failure to revoke issue of whether a defendant fulfilled the that was not the trial court's ultimate appellant did not comply with the terns trial court's final pronouncement from to deny appellant's petition: "l find It is in this Court's discretion to do that. ingesting or drinking alcohol and matter was pending." in isolation. This is where I differ. This Ark. Elec, Energy Consumers, Inc. S.W.3d A particular - -, -. the statute as a whole. Gornez u. also Boyd u. State,313 Ark. 1.71., 773,
853 S.W.2 d 263,265 (1993). Here, looking at the have discretion underArk. Code Ann. $ 16-93-303 lor expungement because subsection 303(a)(3) the benefit of this section and $$ 16-93-301 majoriry's interpretation leads to an absurd result, of defendants who admittedly violated terms and released before the term expired but allowing who also violated terms and conditions of probation period. One of the stated reasons forAct 346 of courts were "clothed with very little discretion disposition of cases involving first offenders." See ofthe legislature's intent, the language in the Act itselfand two notable differences from the statutory language Revision Commission for placement in the 1987 subsection 303(a)(3) provided that "[n]othing herein state ro establish first offender procedures as provided 'The majoriry notes that Act 1,460 of 2013 amends is not effective untilJanuary 1,,201,4,and contains detailing the burden of proof and the factors whether ro grant a petition to seal. That Act does what effect that Act will have on future cases without its amendment to section 16-93-303(r)(3). -8-relevant statute as a whole, the courr did (Srpp. 2011) to deny appellant's petition provides that no defendant may be "availed and 1,6-93-302 as a matter of right."l The requiring a court to expunge the record conditions of their probation if they were a court to deny expungement to defendants but who served the entire probationary 1975 was the legislature's concern that the and have limited alternatives in the Act346 of 1,975. While not determinative in the Arkansas Statutes contained as modified by the Arkansas Code 'W'hat Arkansas Code Annotated. is now shall require or compel any court ofthis in this Act nor shall any defendant be section 1,6-93-303(r)(3) Act 1460 an entirely new comprehensive procedure to be considered by a court in determining not apply to this case, and it is not clear examining all its provisions, not only
availed the benefit of this Act as a matter of right." See 1232 (kepl. 1,977) (emphasis added). This language suggests that the entire Act are provided to a defendant as a discretion under the entire Act. The Revision what is now subsection 303(b), causing what was previously read: "LJpon fulfillment of the terms and conditions ofprobation, or upon by the court prior to the termination period thereoe Ark. Stat. S 43-1,233. The use of two commas around the early the legislature was simply attempting not to leave out the situation where a defendant released from probation before the termination of legislature was attempting to tie the court's hands in such a in a better position than a similarly errant defendant who completed the entire term of probation. See Cox u. City of Caddo Valley,305 Ark. 155, 806 S.W.2d 6 that an act or statute is not controlling if it was changed Revision Commission in a manner not authorrzedby in effect at the time of the change or modification) Although our supreme court has not directly addressed a defendant does not have a right to expungement. S.'W.3d 49'1,, 495 (2006), the court said that defendant has a right to expungement: 'nor shall any -9-Act 346 of 1,975 and Ark. Stat. S 43-none of the provisions in matter of right and that the court has Commission also removed a comma from seemingly an aside to appear not to be. It release the defendant shall be discharged . . .." release language suggests that was his sentence. It does not appear that the situation or place that defendant (1,991) (providing or modified by the Arkansas Code the laws or constitutions of Arkansas (citing Ark. Code Ann. $ 1-2-103(a)(3)). this issue, dicta suggests that ln Barnett u. State,366 Ark. 427 , 435, 236 "section 16-93-303 makes clear thar no defendant be availed the benefit of
[expungement] as a matter of right.' Ark. Code Ann. Arnold u, State,2011 Ark. 395, 384 S.'W.3d 488, We find no support for the idea that a liberry interest. First of all, section 1,6-93-303(a)(3) clearly states: subsection shall require or compel any court of this state to establish procedures as provided in SS 16-93-301,-1,6-93-303, availed the benefit of $$ 16-93-301-1,6-93-303 no right to expungement under a statute, it follows logically no liberry interest in having a "clean record." Id. at 10,384 S.W.3d at 496. The majoriry interprets this fact that a defendant is not entitled to first-offender said. It said a defendant is not entitled to expungement. Finally, in my view, ignoring subsection 303(b) in isolation as the majoriry has done leads to an absurd result intelpretation of the whole statute seems to better effect the I would affirm the court's order. HaRRrsoN, J., joins. Euerett, Wales E Comstock, by Jason H. Dustin McDaniel, Att'y Gen., by: Pamela 2Dep't of Career Educ,, Diu, of Rehab. Serus. u. ("This court has consistently held that that de$z common sense and produce absurd results."); Searcy u. Hinchey,20L3 Ark. 84, at 7 ("[W]e will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent."). -10-$ 16-93-303(a)(3) (Repl. 2006)." In the courr stated: the statutes in question combine to create "Nothing in this first-offender nor shall any delendant be as a matter of right." Where there is that the statute creates language as merely reiterating the procedures. This is not what the court 303(a)(3) and literally interpreting subsection when an alternative purpose of Act 346.2 Therefore, Wales, for appellant. Rumpz, Ass't Att'y Gen., for appellee. Means,2013 Ark. 1.73, at11, it will not engage in statutory inte r S pr . e W tat . io 3 n d s Cnty Counselfor Ethical Gou't
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