State v. Hanners

• Decision Date: 12 April 2007
• Docket Number: No. M2005-2380-CCA-WR-CD.,M2005-2380-CCA-WR-CD.
• Citation: 235 S.W.3d 609
• Parties: STATE of Tennessee v. James Michael HANNERS.
• Court: Tennessee Court of Criminal Appeals

235 S.W.3d 609

STATE of Tennessee v. James Michael HANNERS.

No. M2005-2380-CCA-WR-CD.

Court of Criminal Appeals of Tennessee, at Nashville.

October 25, 2006 Session.

April 12, 2007.

Application for Permission to Appeal Denied by Supreme Court August 13, 2007.

B.F. "Jack" Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the appellant, James Michael Hanners.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Whitesell, District Attorney General, for the appellee, State of Tennessee.

OPINION

J.C. McLIN, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA McGEE OGLE, JJ., joined.

The appellant, James Michael Hanners, was convicted by a Rutherford County jury of misdemeanor assault, a lesser-included offense of abuse of a child under six years of age, in September 2002. In January 2003, the trial court sentenced the appellant to eleven months and twenty-nine days. In August 2005, the appellant moved for expungement of any records relating to the charge of child abuse, which the trial court denied relying on Tennessee Code Annotated section 40-32-101, as amended May 22, 2003. On appeal, the appellant argues that the denial of his motion for expungement violates the Ex Post Facto Clause of the Tennessee Constitution because he was entitled to expungement at the time of his conviction and sentencing. After our review of the parties' briefs and the record as a whole, we reverse the judgment of the trial court and remand for entry of an expungement order.

BACKGROUND

In January 2002, the appellant was indicted for the abuse of a child under six years of age, a Class D felony. Following a jury trial in September 2002, he was convicted of the lesser-included offense of assault, a Class A misdemeanor. The appellant was sentenced on January 7, 2003, to eleven months and twenty-nine days, suspended after service of seven months. The judgment was signed by the trial court on January 14 and filed on January 15, 2003.

In August 2005, the appellant moved for expungement of any records related to the charge of child abuse on the grounds that the jury acquitted him of that charge. The trial court denied the appellant's motion relying on Tennessee Code Annotated section 40-32-101, as amended May 22, 2003, which provided that expungement of records regarding a charged offense was not permissible when a defendant was convicted of a lesser-included offense of the charged offense. The appellant filed a motion for reconsideration in October 2005. The trial court denied said motion in November 2005, stating that the amended statute was procedural and could be applied retroactively and that it did not alter the appellant's situation to his disadvantage.

Thereafter, the appellant filed a petition for writ of certiorari as well as a notice of appeal, and his appeal as of right was assigned the Court of Criminal Appeals docket number M2005-02770-CCA-R3-CD. The appellant requested that this court take judicial notice that the record in the appeal as of right was the same record upon which the petition for writ of certiorari was presented. This court granted the appellant's petition for writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 and State v. Adler, 92 S.W.3d 397 (Tenn.2002),¹ and consolidated case number M2005-02770-CCA-R3-CD with the instant case. The issue presented for our review is: "Whether the 2003 addition to Tennessee Code Annotated section 40-32-101(a)(1) (2003) violates the prohibition against ex post facto laws."

STANDARD OF REVIEW

Review under the common law writ of certiorari, see Tenn.Code Ann. § 27-8-101, is limited to whether the inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally, arbitrarily, or fraudulently. See Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn.1996); McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn.1990).

ANALYSIS

The appellant asserts that the denial of his request for expungement was error because he was entitled to expungement under the law in effect at the time of his conviction and sentencing. The appellant relies on State v. Adler in making his argument.

At the time of the appellant's conviction and sentencing, Tennessee Code Annotated section 40-32-101 stated as follows:

All public records of a person who has been charged with a misdemeanor or a felony, and which charge has been dismissed, or a no true bill returned by a grand jury, or a verdict of not guilty returned by a jury, and all public records of a person who was arrested and released without being charged, shall, upon petition by that person to the court having jurisdiction in such previous action, be removed and destroyed without cost to such person ....

On December 30, 2002, the Tennessee Supreme Court, in State v. Adler addressed the issue of whether a defendant, convicted of a lesser offense than the offense charged in the indictment, could expunge the charged offense pursuant to the expungement statute. In determining this issue, the court first undertook the interpretation of the expungement statute with the expressed goal of effectuating the purpose and intent of the legislature. Adler, 92 S.W.3d at 402. The court recognized that the purpose of the expungement statute was "to prevent a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge or prosecution of the charge was abandoned." Id. (citation and internal quotations omitted). The court then held that "a defendant who is convicted of a lesser-included offense of the offense sought in the indictment or presentment is entitled to have the record expunged of any greater charge(s) for which the jury finds the defendant not guilty." Id. at 403.

On May 22, 2003, the Tennessee General Assembly enacted Public Chapter 175, which in pertinent part amended the expungement statute to include the following language: "provided however, when a defendant in a case has been convicted of any offense or charge, including a lesser included offense or charge, the defendant shall not be entitled to expungement of the records or charges in such case pursuant to this part." The Act was to take effect upon becoming law.

The state asserts that the expungement statute has always prohibited expungement of records following the jury's return of any verdict of guilty and afforded relief only to a defendant who is completely exonerated of criminal wrongdoing. The state submits that the Tennessee legislature amended the statute in 2003 to correct the Tennessee Supreme Court's misinterpretation of the statute in State v. Adler. In making its argument, the state relies on State v. Jennings, 130 S.W.3d 43, 46-47 (Tenn.2004), where the Tennessee Supreme Court held that a defendant found not guilty by reason of insanity was not entitled to expungement pursuant to the pre-amendment statute.

Upon review, we first note that the Jennings case is distinguishable from Adler. There is a difference between a finding of not guilty by reason of insanity and guilty of a lesser-included offense. A verdict of not guilty by reason of insanity means that the offender cannot be held responsible for his or her actions due to insanity, not that the person is not guilty of the crime. See id. A verdict of guilty of a lesser-included offense means that the offender was first found not guilty of the greater offense. The Jennings decision was also based in part on the fact that the verdict of not guilty by reason of insanity was rendered after a bench trial, not a jury trial. Id. Second, and most importantly, it is not this court's position to question our supreme court's interpretation of a statute. At the time of the appellant's conviction and sentencing, the expungement statute, as interpreted by our supreme court, allowed for expungement of a charged offense when a defendant was convicted of a lesser-included offense. Accordingly, the state's argument that the Tennessee Supreme Court erred in its decision in Adler is not sustainable.

Having concluded that the appellant was entitled to expungement at the time of his conviction and sentencing, we must now address whether the legislative amendment to the expungement statute could nevertheless be applied in the appellant's case to bar expungement.

Under the Tennessee Constitution, "no retrospective law ... shall be made." Tenn. Const. art. 1, § 20. Therefore, unless the legislature clearly indicates otherwise, statutes are presumed to operate prospectively. Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 368 (Tenn. 1998). However, statutes that are remedial or procedural in nature may be applied retroactively to causes of action arising before the acts became law and to suits pending when the legislation took effect. In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004). Remedial statutes are defined as "`[l]egislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained....'" Nutt, 980 S.W.2d at 368 (quoting State Dep't of Human Servs. v. Defriece, 937 S.W.2d 954, 958 (Tenn.Ct. App.1996)). Similarly, a procedural statute is one that addresses the mode or proceeding by which a legal right is enforced. Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn.1976) (quoting Jones v. Garrett, 192 Kan. 109, 386 P.2d 194, 198-199 (1963)). However, "even a procedural or remedial statute may not be applied retroactively if it impairs a vested right or contractual obligation." In re D.A.H., 142 S.W.3d at 273 (citation omitted). "A vested right is ... a right which is proper for the state to recognize and protect and of which [an] individual [can] not be deprived arbitrarily without injustice." Id. (citation and internal quotations omitted). Arguably, the expungement statute is remedial in nature. See State v. Doe, 588 S.W.2d 549, 551 (Tenn.1979) (overruled, in part, by statute) (describing the expungement statute as "remedial legislatio...