Doe v. State, A17A0115

• Decision Date: 06 September 2018
• Docket Number: A17A0115
• Citation: 819 S.E.2d 58,347 Ga.App. 246
• Parties: DOE v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 246

819 S.E.2d 58

DOE

v.The STATE.

A17A0115

Court of Appeals of Georgia.

September 6, 2018

Jeffrey Robert Filipovits, Atlanta, for Appellant

Richard Ashley Mallard, Keith A. McIntyre, Statesboro, for Appellee

Ellington, Presiding Judge.

John Doe filed a petition under OCGA § 35-3-37 (m) (2013) to seal his criminal record that is maintained by the Clerk of the Superior Court of Bulloch County. The trial court denied his motion, and Doe appeals.¹ For the reasons explained below, we reverse and remand with direction that his petition be granted.

The record shows the following undisputed facts. In 2003, when Doe was a 20-year-old college student, he was arrested by the Bulloch County Sheriff's Department and charged with possession of marijuana. He entered a negotiated guilty plea as a first offender under OCGA § 16-13-2 (a) (2004) and received a probated sentence subject to conditional discharge without conviction. After Doe satisfied the terms of his probation, the trial court ordered in January 2008 that he be discharged without conviction and that his sentence be terminated. In May 2008, Doe submitted a formal request under former OCGA § 35-3-37 (d) that information pertaining to his arrest be expunged from the records of the Sheriff's Office.² The prosecuting attorney reviewed the request and agreed that the criminal record be expunged on the basis that Doe's case had been "disposed under the First Offender Act as a conditional discharge and expungement was agreed upon after completion."

Thereafter, the General Assembly amended OCGA § 35-3-37, effective July 1, 2013.³ As amended the Code section provides that, for most arrests that ultimately end in non-conviction, access to the arrestee's criminal history record information that is kept on a statewide basis by the Georgia Crime Information Center ("GCIC") and commonly referred to as a "GCIC report,"⁴ shall be automatically restricted by GCIC under specified circumstances.⁵ "Restricted" means that "the criminal history record information of an individual relating to a particular charge ... shall not be disclosed or otherwise made available to any private persons or businesses" by GCIC pursuant to statutes that provide for the dissemination of records to private persons, businesses, licensing and regulating agencies and other public bodies. OCGA § 35-3-37 (a) (6) (2013).⁶ Pertinently to Doe's case, because he was given a conditional discharge under OCGA § 16-13-2 (a) (2004), OCGA § 35-3-37 (h) (2) (B) (2013) provides:

Access to an individual's criminal history record information ... shall be restricted by [GCIC] for the following type[ ] of disposition[ ]: [a]fter ... accusation ... [t]he individual pleaded guilty to or was found guilty of possession of ... marijuana ... and was sentenced in accordance with the provisions of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation[.]

In subsection (m), the Code section further provides that restricted records that are maintained by the clerk of court may be sealed if the court finds by a preponderance of the evidence that "[t]he harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available."⁷

Doe's GCIC record was restricted pursuant to OCGA § 35-3-37 (h) (2) (B) (2013). In December 2013, Doe filed a petition pursuant to OCGA § 35-3-37 (m) (2013) to seal his criminal history record information that was maintained by the Clerk of the Superior Court of Bulloch County. On February 21, 2014, the trial court denied Doe's petition on inapplicable procedural grounds.⁸ Doe filed a timely motion for reconsideration of that order, and the trial court entered an order on May 29, 2014, denying the motion on the merits and reciting without elaboration that "the harm otherwise resulting to the privacy of the individual is not outweighed by the public interest in the criminal history being publicly available."

In March 2015, Doe filed a renewed petition to seal his criminal record (styled as a "renewed motion for reconsideration"⁹ ), supported by new testimonials and affidavits.¹⁰ Doe submitted evidence showing that, after his arrest, he has lived in a law-abiding manner, earned his college degree in finance, earned two specialized certificates in the field (Chartered Financial Analyst and Chartered Market Technician), and obtained a job as a financial analyst with a large financial services firm. Doe deposed that the financial industry is heavily regulated and that he is often required to pass extensive background checks whenever he applies for or starts a new position, especially with larger firms. His criminal court file, which continues to be maintained by the clerk of court and is accessible to the public, came to the attention of a previous employer in a routine criminal background check, and he had to resign his position with that financial services firm. Doe argued that he will not be able to advance in a career in finance as long as his court file remains unsealed and accessible to the public.

At a hearing on Doe's March 2015 petition, the trial court stated its opinion that, with regard to criminal records, "there should be a transparency[,]" adding "I know that's not the law." The court expressed its "frustration with the legislative process[,]" saying that legislators enact laws to show they are "tough on crime," including strict mandatory minimum sentences, and then, because of those laws' "unintended consequences," enact other laws "piecemeal," like decriminalizing many drug offenses and providing for first offender treatment, leaving the courts to sort out the contradictions.

The State did not present any evidence at the hearing on Doe's March 2015 petition and conceded the truth of the facts Doe presented. The State argued that Doe "got everything he negotiated for" in the underlying prosecution and that, although the statutory remedy of sealing court records was not codified until later, Doe could have requested that remedy "as part of his negotiation back in ‘06." The State also made a "slippery slope" argument, stating that granting requests like Doe's "is not something [the State is] interested in starting doing" because "there should be some transparency" in criminal records, echoing the trial court's generalization. In its ensuing order, entered February 6, 2016, the trial court denied Doe's second petition, again stating without elaboration that "the harm otherwise resulting to the privacy of the individual is not outweighed by the public interest in the criminal history being publicly available."

Doe contends that the trial court abused its discretion by refusing to apply the statutory balancing test due to its stated disagreement with the law and the policy behind it. Further, he contends that the trial court erred in denying his petition to seal his public court record because the undisputed evidence shows that the harm to him clearly outweighs the public's interest in access to that information.

The State opposes Doe's appeal on several jurisdictional and procedural grounds, as detailed below.¹¹ Because the State has challenged this Court's jurisdiction, we consider those arguments before reaching the merits.

1. The State contends that this Court lacks jurisdiction because Doe did not file his notice of appeal within 30 days after the trial court's February 21, 2014 order denying his initial petition to seal records or within 30 days after the trial court's May 29, 2014 order denying his motion for reconsideration which, as noted above, was the first time the court denied Doe's initial petition on the merits. "It is well-established that there is no magic in nomenclature, and in classifying pleadings [the courts] will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name." (Citation and punctuation omitted.) Bell v. Figueredo , 259 Ga. 321, 322, 381 S.E.2d 29 (1989).¹² We examined the pleading Doe filed in March 2015 and styled as a "renewed motion for reconsideration" and conclude that it was, in substance, a second motion to seal his criminal records, distinct from his earlier motion to seal his file.¹³ Because Doe filed his notice of appeal within 30 days after the trial court denied that motion on February 5, 2016, this Court does not lack jurisdiction on the basis that his notice of appeal was not timely filed. OCGA §§ 5-6-34 (a) (12) ; 5-6-38.

2. The State contends that Doe failed to comply with the filing requirement of OCGA § 35-3-37 (m) because he filed a motion under his 2004 criminal case rather than initiating a new, separate action and paying a filing fee. Pretermitting whether a request to seal criminal history record information maintained by the clerk of court should be made by way of a new action, despite the fact that subsection (m) (1) of that Code section requires such a request be filed in "the court with original jurisdiction over the charges in the county where the clerk of court is located," the State failed to raise this procedural challenge in the trial court and therefore waived the opportunity for appellate review. Hollins v. State , 287 Ga. 233, 233-234, 695 S.E.2d 23 (2010) ; Earnest v. State , 262 Ga. 494, 495 (2), 422 S.E.2d 188 (1992) ; Capital Land USA, Inc. v. Mitsubishi Motors Credit of America, Inc. , 308 Ga. App. 71, 74 (3), 706 S.E.2d 590 (2011).

3. The State contends that, if the March 2015 pleading that Doe styled as a "renewed motion for consideration" is considered a second petition to seal the court record, then that petition was nevertheless barred under the doctrine of res judicata.¹⁴ Again, the State failed to show that it asserted in the court below this ground for denying Doe's second petition under OCGA § 35-3-37 (m). Accordingly, we will not consider this argument for the first time on appeal. OCGA § 9-11-8 (c) ; Gotel v. Thomas...