State v. GILLE

• Decision Date: 30 October 2009
• Docket Number: No. 106,Division No. 3.,016. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,106
• Citation: 2009 OK CIV APP 96,227 P.3d 1117
• Parties: STATE of Oklahoma, Plaintiff/Appellee, v. Ryan Lee GILLE, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

227 P.3d 1117

2009 OK CIV APP 96

STATE of Oklahoma, Plaintiff/Appellee, v. Ryan Lee GILLE, Defendant/Appellant.

No. 106,016. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

October 30, 2009.

Ryan Lee Gille, Oklahoma City, Oklahoma, Pro Se.

David C. Cincotta, Assistant District Attorney, Oklahoma City, Oklahoma, for Appellee.

LARRY JOPLIN, Judge.

¶ 1 Defendant/Appellant Ryan Lee Gille seeks review of the trial court's order denying his motion to expunge records. In this appeal, Defendant challenges the trial court's order as affected by errors of both law and fact, and violative of his right to due process of law.

¶ 2 In May 2003, Defendant was arrested and charged with operation of a motor vehicle while under the influence of alcohol while underage, possession of marijuana and possession of paraphernalia. See, 47 O.S. Supp. 1999 § 6-106.4(A)(1)¹; 63 O.S.2001 § 2-402(A)(1), (B)(2); 63 O.S. § 2-405(B). Upon a non-jury trial, Defendant was convicted of driving under the influence and possession of marijuana, for which he received a two-year deferred sentence.

¶ 3 Defendant appealed. The Court of Criminal Appeals found "the arresting officer did not have the requisite reasonable suspicion of criminal activity to justify the investigatory stop of Defendant. The Court of Criminal Appeals consequently held Defendant's "judgment and sentence must be REVERSED and REMANDED with INSTRUCTIONS TO DISMISS." (Emphasis original.) Upon transmission of the mandate to the trial court, and on motion to dismiss by the district attorney, the trial court dismissed the charges against Defendant by order filed November 14, 2005.

¶ 4 On August 13, 2007, Defendant pro se filed a Petition for Expungement of Record in his criminal case. Defendant alleged that, pursuant to 22 O.S.2001 § 18, and 22 O.S. Supp.2002 § 19, he was "entitled to have any record of the charges made expunged so that he need not mention them as part of his criminal record and may truthfully say no such action has ever occurred in accordance with 22 O.S. § 19."

¶ 5 Plaintiff/Appellee State of Oklahoma, through the Oklahoma County District Attorney, filed an objection to expungement and brief in support. State first asserted that Administrative Order No. AD7-95-16 of the trial court required that all petitions/motions for the expungement of criminal records be filed as a civil case and assigned to a judge in the trial court's civil division for disposition, but that Defendant improperly filed his Petition to Expunge in his criminal case.² State secondly argued expungement under 22 O.S. § 19 required a showing that "harm to privacy of the person or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records," and that it was not in the public interest to expunge Defendant's records, because expungement was not intended to protect "individuals who were guilty of violating the laws of the State of Oklahoma, but who were able to have the evidence of that activity suppressed' on a technicality."

¶ 6 Defendant then filed a motion for summary judgment. Defendant asserted he had established a prima facie showing of harm as a required by § 19, but that State had wholly failed to establish any grounds for denial of expungement. See, Hoover v. State, 2001 OK CR 16, 29 P.3d 591; State v. McMahon, 1998 OK CIV APP 103, 959 P.2d 607. State answered, adopting the arguments of its previous objection and brief. Defendant replied, arguing that AD7-95-16 constituted a directive to the Court Clerk for processing of pleas for expungement of records, that he bore no responsibility for the Clerk's mistake in filing his Petition for Expungement in the criminal case, that the trial court in his criminal case retained jurisdiction to consider his petition to expunge, and that refusal to expunge his record on account of non-compliance with the trial court's administrative order violated his constitutional right to due process. Defendant asserted he had been denied employment on account of the unexpunged records, and that, given reversal of his convictions with instructions to dismiss, and harm to him, the trial court should order his record expunged.

¶ 7 On consideration of the parties' filings and arguments, the trial court denied Defendant's Petition to Expunge, holding:

1. The Defendant does not qualify for an expungement pursuant to 22 O.S. § 991c.

2. The Court makes no findings as to whether Defendant is eligible for expungement pursuant to 22 O.S. §§ 18 and 19 3. Defendant's Petition for Expungement of Record and Motion for Summary Judgment were filed in violation of Administrative Order AD7-95-16.

4. Nothing in this order should be construed to prohibit the Defendant from filing a Petition for Expungement of Record pursuant to AD7-95-16.

Defendant appeals.

¶ 8 In this appeal, Defendant asserts the trial court erred in denying him relief pursuant to 22 O.S. §§ 18, 19 and 991c. Particularly, Defendant argues that, given the Court of Criminal Appeals' order reversing his convictions and remanding to the trial court with instructions to dismiss, expungement is required by the plain language of §§ 18, 19 and 991c, and denial of his petition by the trial court violated his due process right to be heard.

Review of Orders for Expungement

¶ 9 Prior to 1999, orders entered under § 19 were subject to review as a civil appeal. See, In re Adoption of Supreme Court Rules for Expungement of Records, 2005 OK 32, ¶ 1, 120 P.3d,861; McMahon, 1998 OK CIV APP 103, ¶ 10, 959 P.2d at 609, fn. 1. Effective November 1, 1999, however, the legislature directed review of orders entered under § 19 by the Oklahoma Court of Criminal Appeals. In re Adoption of Rules, 2005 OK 32, ¶ 2, 120 P.3d at 861; Hoover, 2001 OK CR 16, ¶ 2, 29 P.3d at 591; 22 O.S. Supp.1999 § 19.³,⁴ In the 2002 session, the legislature amended § 19 to require review of expungement orders by the Oklahoma Supreme Court. 22 O.S. Supp.2002 § 19(C) ⁵,⁶ In re Adoption of Rules, 2005 OK 32, ¶ 3, 120 P.3d at 861. Consequently, the instant appeal has been assigned to this Court for review.

Relief Under 22 O.S. § 991c

¶ 10 Upon completion of the conditions of a deferred judgment, subsections (C)(1) and (2) of § 991c, 22 O.S. Supp.2003, require that "the verdict or plea of guilty or plea of nolo contendere" shall be expunged from the record, that "all references to the defendant's name shall be deleted from the docket sheet," and "the public index of the filing of the charge shall be expunged by deletion, mark-out or obliteration." Pursuant to subsection (C)(5) of § 991c:

5. Defendants qualifying under 22 O.S. Section 18 ... may petition the court to have the filing of the indictment and, the dismissal expunged from the public index and docket sheet. This section shall not be mutually exclusive of Section 18 of this title.

In the present case, however, Defendant did not complete a deferred sentence. Rather, the convictions upon which he received a deferred sentence were reversed, and the underlying charges were dismissed. Section 991c does not provide for expungement in such a case. The trial court did not err in holding Defendant did not qualify for an expungement pursuant to 22 O.S. § 991c.

Relief Under 22 O.S. §§ 18 and 19

¶ 11 Section 18(A)(2) of title 22, O.S.2001, authorizes the filing of a motion or petition for expungement of criminal records by a person whose "conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction." "Upon 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, the court may order such records, or any part thereof except basic identification information, to be sealed." 22 O.S. § 19(C).

¶ 12 Relevant to this appeal, we observe the trial court is empowered to adopt reasonable rules for the expeditious resolution of matters presented to it. See, e.g., Bank TV Oklahoma, N.A v. Southwestern Bank & Trust Co., 1997 OK 31, ¶ 8, 935 P.2d 323, 326; Petuskey v. Freeman, 1995 OK 9, ¶ 2, 890 P.2d 948, 950. The trial court's adoption and application of its rules will not be disturbed unless contrary to constitutional or statutory guarantees. Bank IV Oklahoma, N.A., 1997 OK 31, 118, 935 P.2d at 326.⁷

¶ 13 In 1995, the trial court adopted Administrative Order No. AD7-95-16 and directed consideration of a motion or petition for expungement of records as a civil matter....