Hoover v. State, O-2000-571.

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Citation: 29 P.3d 591,2001 OK CR 16
• Docket Number: No. O-2000-571.,O-2000-571.
• Parties: Michael Scott HOOVER, Appellant, v. STATE of Oklahoma, Appellee.
• Decision Date: 06 June 2001

29 P.3d 591
2001 OK CR 16

Michael Scott HOOVER, Appellant,
v.
STATE of Oklahoma, Appellee

No. O-2000-571.

Court of Criminal Appeals of Oklahoma.

June 6, 2001.

As Amended June 7, 2001.

29 P.3d 592

Kelly Basey, Assistant District Attorney, Oklahoma City, OK, Attorney for State at trial

Steve Krise, Assistant City Attorney, Oklahoma City, OK, Attorney for Oklahoma City.

C. Merle Gile, Oklahoma City, OK, Attorney for Petitioner.

C. Merle Gile, Oklahoma City, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, James F. Kelly, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.

OPINION

CHAPEL, Judge:

¶ 1 Michael Scott Hoover was tried by jury and acquitted of several counts of lewd molestation in the District Court of Oklahoma County, Case Nos. CF-97-3462 and CF-98-4543. On March 3, 2000, Hoover filed a Petition for Expungement and Sealing of Record resulting from these charges in the District Court. After an April 17, 2000, hearing, the trial court denied Hoover's motion for expungement. Hoover filed a timely appeal of this order.

¶ 2 Before we reach the merits of Hoover's claim we must address the appropriate avenue for appeal. The statutes governing expungement are 22 O.S.Supp.2000,

29 P.3d 593

§ 18, and 22 O.S.Supp.1999, § 19. Before the recent amendments an appeal from an order on a motion for expungement was treated as a civil appeal. Section 19 now provides that an appeal is taken to this Court in accordance with our Rules.¹ Although this Court is the proper forum for these appeals, our Rules are silent on the procedure for appeal. Hoover filed this as one would a regular appeal, commencing with a Notice of Intent to Appeal and subsequently filing a Petition in Error and Brief in support of his petition.² The State was notified of the appeal but failed to file a brief in response until this Court requested a response

¶ 3 This Court receives cases in a variety of ways. Regular appeals include felony and misdemeanor appeals, certiorari appeals, State appeals and resentencing appeals.³ All these involve cases in which an initial finding of guilt or innocence has been adjudicated, or a controlling question of law has resolved the initial prosecution of a crime, or a sentence has been re-adjudicated on remand following an initial finding of guilt. In other words, these cases all have in common a trial court's final disposition of an initial claim. This Court has original jurisdiction over extraordinary writs of mandamus, prohibition and habeas corpus.⁴ These cases include situations involving the unauthorized use of judicial or quasi-judicial power resulting in prejudice, a respondent's failure to perform a plain legal duty, or claims of unlawful confinement.⁵ In these situations the trial court has not necessarily resolved the pending case, and the petitioner's complaint goes to an adjudicating body's conduct or other issues collateral to the pending criminal prosecution. Post-conviction appeals are limited to cases in which this Court has already decided the direct appeal and the petitioner wishes to raise new or collateral issues.⁶ Other appeals within this Court's jurisdiction include decisions on revocation of suspended sentences or parole, bail pending appeal, disqualification of judges, deferred judgment and sentences, decisions in certain contempt proceedings, and orders of detention for non-payment of fines or costs.⁷ The procedures used in appeal from these proceedings differ with the nature of the situation. For example, claims involving bail are appealable as habeas corpus proceedings,⁸ revocation of parole is governed by post-conviction procedures,⁹ and revocation of suspended sentence claims are handled as regular appeals, with a limited scope.¹⁰

¶ 4 This analysis of our existing rules suggests that we must review the nature of the claim to determine the appropriate form of appeal to this Court. A motion for expungement may be filed: after a criminal case has been disposed of by acquittal or dismissal, if criminal charges were not filed within a year of arrest or before the expiration of the statute of limitations, after a defendant receives a full pardon for a juvenile offense, if the offense was a misdemeanor and certain conditions are met, or if the offense was a nonviolent felony and certain conditions are met.¹¹ Thus a motion for expungement hinges on the final disposition, or lack thereof, of criminal charges. This most closely resembles the circumstances described

29 P.3d 594

above under which this Court hears regular appeals in misdemeanor and felony proceedings. After a motion for expungement is filed the trial court must provide notice to a variety of State agencies with an interest in or information regarding the records in question, and a hearing shall be held on the matter.¹² This resembles a "trial" on the limited merits of the expungement motion. An expungement hearing is neither a collateral attack on the underlying case, nor a claim of unfair confinement, nor a claim the trial court acted unlawfully or failed to perform a legal duty, nor a claim that the petitioner has failed to comply with a trial court's directive regarding payment. Expungment proceedings are not analogous to plea proceedings or State appeals. We note that, when expungement claims were appealed as civil proceedings, they were treated as regular appeals.¹³ Considering the nature of expungement proceedings we have determined that expungement proceedings are appropriately treated as regular appeals, and shall be governed by the same procedure as perfection of a regular misdemeanor or felony appeal. We attach as an Appendix an amendment to our Rules reflecting this decision. In accordance with this determination we find that Hoover appropriately appealed the denial of his motion for expungement

¶ 5 We turn to the merits of Hoover's claim. Hoover argues the district court abused its discretion in refusing to order expungement of his arrest records. In June 1997 and July 1998, Hoover was charged in two cases with several counts of lewd acts with minor children. The cases were consolidated. After a May 1999 jury trial Hoover was acquitted of all charges. On March 3, 2000, Hoover petitioned the trial court to have his arrest records in these cases expunged. In his petition Hoover claimed the arrest records were detrimental to his privacy, and the dangers of adverse consequences to him outweighed the public interest in retaining the records. In its response, the State agreed that Hoover was eligible to apply for expungement but argued Hoover had not shown his interest outweighed the public interest in retaining the records. The State claimed the public interest in retaining arrest records for sex offenders outweighed Hoover's interests; the State argued that sex offenders tend to repeat their crimes, particularly after being acquitted. After an April 17, 2000, hearing on the motion for expungement, the trial court denied Hoover's motion.

¶ 6 We first address the appropriate burden of proof in expungement cases. The Court of Civil Appeals considered this issue in the only published decision construing these statutes, State v. McMahon.¹⁴ Following...