Polk v. State
Decision Date | 09 October 2014 |
Docket Number | No. 2013–CA–00701–SCT.,2013–CA–00701–SCT. |
Citation | 150 So.3d 967 |
Parties | Zachary POLK v. STATE of Mississippi. |
Court | Mississippi Supreme Court |
Jean Sherman Cooper, Richard D. Mitchell, Canton, attorneys for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
BEFORE WALLER, C.J., LAMAR and PIERCE, JJ.
PIERCE, Justice, for the Court:
¶ 1. Zachary Polk was indicted on three counts in Oktibbeha County, Mississippi, for the sale of methylenedioxymethamphe tamine (MDMA), hydrocodone, and alprazolam, in violation of Mississippi Code Section 41–29–139(a)(1). Miss.Code Ann. § 41–29–139(a)(1) (Rev. 2013). Polk entered a plea of guilty as to Count I for the sale of MDMA, and he was sentenced to serve ten years in the Mississippi Department of Corrections and ordered to pay a $5,000 fine. The district attorney “retired to files” Count II and Count III, based upon Polk entering a plea of guilty as to Count I. In January 2012, Polk received a “full, complete, and unconditional pardon” from Governor Haley Barbour.
¶ 2. Thereafter, Polk filed a petition for expungement in the Circuit Court of Oktibbeha County, seeking to have all records expunged relating to his earlier arrest and indictment. Polk argued that Count I of the indictment, to which he pleaded guilty, should be expunged based on Ex Parte Crisler, 159 Miss. 247, 132 So. 103 (1931). Polk also argued that Counts II and III, which were “retired to files,” should be expunged pursuant to Mississippi Code Section 99–15–57(2).
¶ 3. The trial court determined that it was without statutory or constitutional authority to expunge Polk's record as to Count I. Regarding Counts II and III, the trial court also found that it was without statutory authority to expunge the charges. Polk appeals to this Court.
STANDARD OF REVIEW
¶ 4. This Court applies a de novo standard of review when questions of law are to be considered on appeal. Brown v. State, 731 So.2d 595, 598 (Miss.1999).
DISCUSSION
¶ 5. Polk asks this Court to hold that, since his pardon “obliterates his previous conviction,” his record of conviction as to Count I should be expunged. Polk further asks this Court to hold that the trial court had statutory authority to expunge his criminal record(s) as to Counts II and III, which were retired to files. As will be explained, we cannot expunge his records as to Count I. As to Polk's latter request, however, we find that Polk's criminal record(s) with regard to Counts II and III, which were remanded to file, are eligible for expungement pursuant to Mississippi Code Section 99–15–26(5).
¶ 6. Criminal records in Mississippi are kept pursuant to Mississippi Code Section 45–21–1. This Court implicitly held in Caldwell v. State, 564 So.2d 1371, 1372–73 (Miss.1990) ( ) that expungement of such records is an act of legislative grace. No common law right to the expungement of criminal records exists. In re Expungement Application of G.P.B., 436 N.J.Super. 48, 50, 91 A.3d 648 (App.Div.2014). And there is no constitutional right for such relief in either our state constitution or our federal constitution. See, e.g., Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir.1997) ( )(internal quotation marks and citation omitted). A number of statutes in the Mississippi Code permit criminal defendants to apply for expungement, but none exists for expungement in the case of a pardon.
¶ 7. Recognizing this, Polk relies heavily on Ex Parte Crisler, 132 So. 103, 159 Miss. 247 (Miss.1931), for the proposition that, because he received a full, complete and unconditional pardon, he is entitled to an expungement of the record for the offenses for which he was pardoned. Polk's reliance on Crisler and its broad language, however, is to no avail.
¶ 8. At the outset, the issue addressed in Crisler, was not whether a full pardon entitles the recipient to have the records of the offense expunged, but whether a full pardon to an attorney, after conviction and sentence which included an order forever disbarring the attorney from the practice of law within the state, absolved the attorney from all consequences of an order of disbarment and entitled him to reinstatement. In finding that the pardon did entitle the recipient to reinstatement, the Court in Crisler quoted language from Jones v. Board of Registrars of Alcorn County, 56 Miss. 766 (1879), which also did not involve the question of expungement.1 This language reads as follows:
¶ 9. The above-quoted text primarily originates from the United States Supreme Court case Ex parte Garland, 71 U.S. 333, 32 How. Pr. 241, 18 L.Ed. 366, 4 Wall. 333 (1866), which, similar to Crisler, concerned the right of a pardoned offender to practice law before the Supreme Court.2 Notably, before even reaching the issue of the pardon, the Supreme Court decided the case on other grounds-finding Congress's act unconstitutional under “bill of attainder” and “ex post facto” bases. Garland, 71 U.S. at 377.
¶ 10. In addressing Garland 's broad language, the District of Columbia Court of Appeals explained:
[Garland 's] discussion of the presidential pardon was unnecessary for its disposition of the case. By the time Justice Field reached the issue of the pardon, the case had already been decided. Irrespective of the pardon, the statute was deemed invalid on other constitutional grounds. The courts, both federal and state, have thus accurately described the “blotting out” discussion in Garland as “dictum.”
In re Abrams, 689 A.2d 6, 17 (D.C.App.1997). See also State v. Boykin, 138 Ohio St.3d 97, 103–04, 4 N.E.3d 980 (2013) ( ); R.J.L. v. State, 887 So.2d 1268, 1275 (Fla.2004) ( ); State v. Blanchard, 100 S.W.3d 226 (Tenn.Crim.App.2002) (same); U.S. v. Noonan, 906 F.2d 952, 958 (3rd Cir.1990) ( ); Bjerkan v. United States, 529 F.2d 125, 128 n. 2 (7th Cir.1975) ( ).
¶ 11. The Supreme Court also has greatly narrowed Garland 's statement(s) regarding the effect of a pardon. See Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 112 L.Ed.2d 1 (1993) ( )(emphasis added); Burdick v. United States, 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915) ( ); Carlesi v. New York, 233 U.S. 51, 59, 34 S.Ct. 576, 58 L.Ed. 843 (1914) ( ); Angle v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 151 U.S. 1, 19, 14 S.Ct. 240, 38 L.Ed. 55 (1894) ( ).
¶ 12. Here, we read Crisler no further than that to which the Crisler Court ultimately limited its holding: “What we here hold, and all that we hold, is that a full pardon absolves an attorney at law from all the consequences of an order of disbarment ... as part of the punishment for the commission of a crime.” Crisler, 132 So. at 104 (emphasis added).
¶ 13. Having studied the matter before us, we find no convincing authority that a gubernatorial pardon automatically entitles the recipient to have his or her criminal record expunged. To us, an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal disability based on that offense. It does not edit history. In the words of Boykin, supra, “what's done is done.” Boykin, 4 N.E.3d at 986. See also State v. Skinner, 632 A.2d 82, 84–85 (Del.1993) () (inner quotation marks and citation omitted). Expungement from official records all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore...
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