Plumley v. State

• Decision Date: 07 April 2017
• Docket Number: Case Number: 114423
• Citation: 394 P.3d 992
• Parties: Michael PLUMLEY, Plaintiff/Appellee, v. STATE of Oklahoma, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

394 P.3d 992

Michael PLUMLEY, Plaintiff/Appellee,

v.STATE of Oklahoma, Defendant/Appellant.

Case Number: 114423

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: April 7, 2017

Mandate Issued: May 11, 2017

DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 Defendant/Appellant State of Oklahoma (State) appeals from the trial court's Order granting the petition to seal and expunge records of Plaintiff/Appellee (Petitioner).¹ The statute at issue in this case — 22 O.S. 18 — is remedial or procedural in nature, applies retroactively, and has been amended (in 2016) in a manner that requires we affirm the granting of the petition by the trial court.

¶ 2 The facts of this case are not in dispute. As set forth in the trial court's Order, Petitioner was arrested by the Oklahoma City Police Department on July 12, 2012, and charged with a "Misdemeanor Driving Under the Influence (DUI)...." In December 2012, Petitioner entered a no contest plea to this charge, and he was "placed on a 6-month-continued sentence and successfully completed this probationary period on June 6, 2013."

¶ 3 Petitioner was also charged under a separate case number "with speeding 1-10 miles per hour over the posted speed limit...." However, the parties agree the misdemeanor DUI charge and the speeding violation both arose from the same incident which resulted in Petitioner's arrest on July 12.² In the case involving the speeding charge, Petitioner also pled no contest and, as a penalty, he paid a fine in the amount of $232 for speeding.

¶ 4 In July 2015, Petitioner filed his petition to expunge "the record of arrest and all matters and Information relating" thereto. State objected to the petition.³ In its brief in support of its objection, State asserted that because Petitioner had received not one but two misdemeanor convictions — i.e., the DUI and speeding convictions — "he does not qualify for relief under 22 O.S. 18(A)(8)."

¶ 5 Title 22 O.S. 18 authorizes one to petition to expunge criminal records under various circumstances. State asserted below that 18 "establishes that a petitioner must meet one of twelve different qualifications before being entitled to petition the court for an expungement of criminal records[.]" State then quoted the version of 18 in effect between November 1, 2014, and November 1, 2016. In particular, State quoted the following from 18, adding its own emphasis:

8. The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a misdemeanor or felony, no misdemeanor or felony charges are pending against the person, and at least one (1) year has passed since the charge was dismissed[.]

¶ 6 Indeed, because Petitioner filed his petition in July 2015, this is the version of the statute under which he sought expungement. However, we conclude State's argument is rendered moot because, in 2016, the Legislature removed the word "misdemeanor" from the above-quoted, and emphasized, portion of the statute, and we conclude the current version of this procedural or remedial statute applies to this case.

¶ 7 The question presented on appeal is one of law, which we review de novo. Holder v. State, 2009 OK CIV APP 1, 4, 219 P.3d 562. Section 18, amended effective November 1, 2016, now reads:

A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:

. . .;

8. The person was charged with a misdemeanor, 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 one (1) year has passed since the charge was dismissed[.]

(Emphasis added.) As indicated above, State's sole argument is that the language in the prior version of the statute — "the person has never been convicted of a misdemeanor" — prevents Petitioners from qualifying to petition for expungement because he had an additional misdemeanor (the speeding violation). However, because this language has been removed by the Legislature, State's argument is mooted if the current version of the statute applies to this case.

¶ 8 For the following reasons, we conclude the current version of 18 applies to this case, and State does not argue otherwise.⁴ Generally, "a statute or its amendments will have only prospective effect unless [the statute] clearly provides otherwise." Hammons v. Muskogee Med. Ctr. Auth., 1985 OK 22, ¶ 6, 697 P.2d 539 (footnote omitted). "However, remedial or procedural statutes which do not create, enlarge, diminish, or destroy vested rights may operate retrospectively, and apply to pending actions or proceedings." Forest Oil Corp. v. Corp. Comm'n of Okla., 1990 OK 58, ¶ 11, 807 P.2d 774 (footnotes omitted). "A purely procedural change is one that affects the remedy only, and not the right." Id. (footnote omitted).

¶ 9 The statute in question states that a person must "be within one" of the listed "categories" to be "authorized to file a motion for expungement[.]" Hence, 18 merely sets forth who qualifies to file a motion for expungement. See Holder v. State, 2009 OK CIV APP 1, 5, 219 P.3d 562, ("When an individual establishes that one of the 18 circumstances is shown to exist, a prima facie showing of harm is made," and "[w]ith this showing, the burden shifts to the opposing party ... to prove the public interest in keeping the records does not harm privacy interests and serves the ends of justice.") (internal quotation marks omitted) (citations omitted).

¶ 10 That is, 22 O.S. Supp. 2016 19(A) provides that "[a]ny person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information." (Emphasis added.) Thus, qualifying under one of the categories listed in 18 merely allows one to petition for expungement and, thereby, make a prima facie showing of harm. As set forth in 19(B), the district court must then "set a date for a hearing" and provide notice of the hearing "to the prosecuting agency, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record." Moreover, only "[u]pon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records," "may" the district court "order such records, or any part thereof except basic identification information, to be sealed." 19(C).

¶ 11 We conclude 18 is solely remedial or procedural in nature — it does not constitute a substantive change that alters any vested right, punishment, or obligation of Petitioner; rather, 18 simply sets forth who qualifies to petition for the remedy, or privilege, of expungement. Forest Oil, 1990 OK 58, ¶ 11, 807 P.2d 774; Steidley v. Cmty. Newspaper Holdings, Inc., 2016 OK CIV APP 63, ¶ 12, 383 P.3d 780. See State v. Heaton, 108 Ohio App.3d 38, 669 N.E.2d 885, 887 (1995) ("Expungement is a matter of privilege, never of right.") (citation omitted). See also In re Dyer, 163 S.W.3d 915, 919 (Mo. 2005) (en banc) ("[The petitioner] has never had a substantive or vested right in expungement of his arrest record[.]"); People v. Link, 225 Mich.App. 211, 570 N.W.2d 297, 299 (1997) ("[W]e conclude that the expungement statute is remedial and that it does not create new or destroy existing rights."); State v. T.P.M., 189 N.J.Super. 360, 460 A.2d 167, 171-72 (1983) ("[T]he expungement statute is a remedial, not a punitive statute," and "the possible availability of an expungement ... relates to neither the form of sentence nor the extent of punishment"; rather, an "interest in expungement" is "only in obtaining a potential remedy, not retaining something which has already inured to [one's] benefit.").

¶ 12 The ability of Petitioner to qualify under 18 to petition to expunge his DUI misdemeanor (and thereby make a prima facie showing, as set forth above) was never a vested right. The inverse is also true: the inability of Petitioner to qualify to petition to expunge his DUI misdemeanor conviction was never part of his sentence or punishment and, thus, the broadening of the categories of qualification for expungement does not serve to lessen (or increase) his sentence for the crime committed. Indeed, 18(8) requires, among other things, that "the charge was dismissed following the successful completion of a deferred judgment or delayed sentence" before one can qualify to petition for expungement under that provision. (Emphasis added.)

¶ 13 The 2016 statutory amendment does not create, enlarge, diminish, or destroy any vested rights of Petitioner, and it does not enlarge or decrease his punishment; rather, it is strictly remedial or procedural. Therefore, it "may operate retrospectively, and apply to pending actions or proceedings," Forest Oil, 1990 OK 58, ¶ 11, 807 P.2d 774 (footnotes omitted), and we conclude it so operates and applies in this proceeding.⁵

¶ 14 In addition, there is no potential ex post facto violation in this case because the 2016 amendment to 18(A)(8) decreases the constraints on expungement. Ex post facto laws or amendments are those that operate or are imposed "to the disadvantage of the accused." Starkey v. Okla. Dep't of Corr., 2013 OK 43, ¶ 37, 305 P.3d 1004 (citation omitted). "It has been the rule in Oklahoma that a law is within the protection of the provision when it inflicts a greater punishment than the law annexed to the crime at [the] time it was committed or alters [the] situation of accused to his disadvantage." Id. (internal quotation marks omitted) (citation omitted). The 2016 amendment is, if anything, to the...