State v. Shade

• Decision Date: 16 November 2017
• Docket Number: Case No. 115,523
• Citation: 407 P.3d 790
• Parties: STATE of Oklahoma, Plaintiff/Appellant, v. Daniel Lee SHADE, Jr., Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

407 P.3d 790

STATE of Oklahoma, Plaintiff/Appellant,

v.Daniel Lee SHADE, Jr., Defendant/Appellee.

Case No. 115,523

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

Decided: November 16, 2017

Mandate Issued: December 12, 2017

John Justin Wolf, ASSISTANT GENERAL COUNSEL, OKLAHOMA STATE BUREAU OF INVESTIGATION, Oklahoma City, Oklahoma, for Plaintiff/Appellant

DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 The Oklahoma State Bureau of Investigation (OSBI) seeks review of the trial court's order granting the motion to expunge certain criminal records of Daniel Lee Shade, Jr. Based on our review, we reverse and remand for further proceedings.

BACKGROUND

¶ 2 Shade was charged with the offenses of "Embezzlement by Employee" (Count I) and "Second Degree Burglary" (Count II) in Cleveland County, Case No. CRF-998-47, and "Larceny of Motor Vehicle" in Logan County, Case No. CRF-1997-10. In 2012, Shade received a full pardon for these offenses.

¶ 3 In June 2016, Shade filed a petition seeking to expunge all records pertaining to Case No. CRF-998-47. Shade pointed out that he had received a full pardon and also asserted "it has been more than ten (10) years since the completion of [my] sentence." Shade made no mention of the conviction for larceny of a motor vehicle in his petition.

¶ 4 A hearing was held in August 2016 at which counsel for OSBI appeared and objected to Shade's expungement request. The applicable statute in effect at the time of the hearing provided that, in order for one to be "authorized to file a motion for expungement," he/she "must be within" the following "categor [y]":

The person was convicted of a nonviolent felony offense, not listed in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other felony, the person has not been convicted of a separate misdemeanor in the last fifteen (15) years, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the felony conviction[.]

22 O.S. Supp. 2015 § 18(A)(11).¹ In its order filed in October 2016, the trial court acknowledged the existence of the conviction in Logan County, but stated that, "given the circumstances, [Shade's] youth at the time of conviction, the fact that the Cleveland County case and the Logan County case were revoked at the same time, the sentences were run concurrently and [Shade] has received a pardon on all cases and all charges," Shade is "in the position envisioned by statute—to be able to work hard and wipe the slate clean."

¶ 5 From the trial court's order, OSBI seeks review.²

STANDARD OF REVIEW

¶ 6 The question presented on appeal is one of law, which we therefore review de novo. Holder v. State, 2009 OK CIV APP 1, ¶ 4, 219 P.3d 562.

ANALYSIS

¶ 7 OSBI points out that § 18(A)(11) requires, as quoted above, that "the person has not been convicted of any other felony" in order to be authorized to seek expungement. OSBI asserts that because Shade was convicted of at least two felonies, he is prevented by the plain language of the statute from qualifying for expungement. OSBI also acknowledges that the statute was subsequently amended in November 2016, and that the current version provides as follows:

The person was convicted of not more than two nonviolent felony offenses, not listed in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for both of the nonviolent felony offenses, no felony or misdemeanor charges are pending against the person, and at least twenty (20) years have passed since the last misdemeanor or felony conviction[.]

22 O.S. Supp. 2016 § 18(A)(13). OSBI asserts that even if this amended language applies to this case, "[Shade] still failed to meet his burden of proof to show that he qualified to file his petition for expungement because [Shade] failed to show that twenty years ha[ve] passed since his last misdemeanor or felony conviction."

I. The amended version of the statute applies to this case.

¶ 8 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 Both versions of the statute in question state 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, 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).³

¶ 10 Regardless, the 2016 amendment to what was previously § 18(A)(11) does not constitute a substantive change that alters any vested right, punishment, or obligation of Shade; 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. 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.").

¶ 11 The ability (or inability) of Shade to qualify under § 18 to petition to expunge certain of his criminal records (and thereby make a prima facie showing, as set forth above) was never a vested right. The 2016 statutory amendment does not create, enlarge, diminish, or destroy any vested rights of Shade, and it does not enlarge or decrease his punishment; rather, it is 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.⁴ Relatedly, there is no potential ex post facto violation in this case because the 2016 amendment to what was previously § 18(A)(11) does not inflict a greater punishment on the accused.⁵ For these reasons, we conclude the current version of § 18—i.e., 22 O.S. Supp. 2016 § 18(A)(13) —applies to this case.

II. No first-instance determinations have been made, and it is unclear from the record, whether Shade was convicted of not more than two nonviolent felony offenses and whether twenty years have passed since the last misdemeanor or felony conviction.

¶ 12 In the current version of the statute, the Legislature changed the requirement that "[t]he person was convicted of a nonviolent felony offense" and "has not been convicted of any other felony," to the following: "The person was convicted of not more than two nonviolent felony offenses [.]" The Legislature also changed the requirement that "at least ten (10) years have passed since the felony conviction"—the current version now requires that "at least twenty (20) years have passed since the last misdemeanor or felony conviction[.]" Because no first-instance determinations have been made regarding these amended requirements, we remand this case to the trial court for further proceedings.⁶

CONCLUSION

¶ 13 We reverse the order granting Shade's petition to expunge, and we remand this case to the trial court for further proceedings to be held in a manner consistent with this Opinion.

¶ 14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

THORNBRUGH, V.C.J., and WISEMAN, J., concur.

1 OSBI asserts that "[Shade] met none of the statutorily proscribed requirements," but asserts that "[a]t the time of the hearing the subsection which most closely matched [Shade's] circumstances was [§] 18(A)(11)." Indeed, § 18(A)(11) is the basis of Shade's expungement request in his petition and is the only subsection cited therein.

2 Shade did not file an Answer Brief on appeal. Where a party fails to file an answer brief, and the failure to file such brief is not excused, then "we are under no obligation to search the record for some theory to sustain the trial court's judgment[.]" William s & Kelley Architects v. Independent Sch. Dist. No. 1, Okmulgee Cnty., 1994 OK CIV APP 113, ¶ 8, 885 P.2d 691. However, reversal is never automatic for failure to file an answer brief. Hamid v. Sew Original, 1982 OK 46, ¶ 7, 645 P.2d 496.

3 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...