Talley v. State
| Decision Date | 07 October 2020 |
| Docket Number | No. CR-20-134,CR-20-134 |
| Citation | 610 S.W.3d 164,2020 Ark. App. 461 |
| Parties | Roderick TALLEY, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.
Roderick Talley appeals the December 19, 2019 order of the Pulaski County Circuit Court, which denied both his petition to seal a misdemeanor conviction and his motion to strike the State's response to the motion to compel. Talley argues on appeal that in so ruling, the circuit court misinterpreted the Comprehensive Criminal Record Sealing Act ("CCRSA") of 2013, which is codified at Arkansas Code Annotated sections 16-90-1401 et seq. (Repl. 2016 & Supp. 2019). We affirm.
Talley was charged with second-degree battery on January 28, 2016. On September 19, he entered a negotiated guilty plea to second-degree assault, a Class B misdemeanor, and he was ordered to pay a $500 fine. On April 19, 2018, Talley filed a pro se petition to seal the misdemeanor conviction and claimed that he had completed all the requirements of the conviction and had no pending felony charges in any state or federal court.
On November 5, 2019, Talley filed an amended petition to seal his misdemeanor-assault conviction and stated that he had one or more pending felony charges under Arkansas Code Annotated as follows: section 5-54-111(b)(1) (second-degree escape); section 5-36-103(b)(2)(A) (); section 5-13-211 (); section 5-13-202 (second-degree battery); section 5-54-125 (fleeing); section 5-54-125(c) (fleeing on foot); section 5-36-103(b)(4)(A) (theft of property); section 27-16-303 (); and section 5-37-201 (forgery).
On December 6, Talley filed a motion to compel ruling on his petition to seal, claiming that he had personally served a copy of his petition on the Pulaski County Prosecuting Attorney's Office on November 5. He alleged that pursuant to Arkansas Code Annotated section 16-90-1413(b)(2)(A) (Supp. 2019), the prosecuting attorney may file a notice of opposition to his petition to seal within thirty days from the date of filing. Therefore, he claimed that when the State did not file any notice of opposition on or before December 5, it waived any opposition to his petition to seal. He argued that section 16-90-1413(b)(2)(B)(i) notes that when the State fails to file any notice of opposition, the circuit court may grant the petition. He further cited section 16-90-1415(a) that "unless the circuit court ... is presented with and finds that there is clear and convincing evidence that misdemeanor or violation conviction should not be sealed under this subchapter, the circuit court ... shall seal" the conviction. He argued that because the State did not file a notice of opposition, the circuit court was not presented with clear and convincing evidence that the conviction should not be sealed, and the statutes contain no other basis for a hearing on the petition other than the State filing notice. See Ark. Code Ann. § 16-90-1413(b)(2)(B)(ii) (). On the basis of that argument, he claimed that the circuit court should grant his petition.
The State responded to Talley's motion to compel on December 10 and alleged that in Talley's original petition to seal, he made false statements under oath by stating he had no pending criminal cases when, in fact, he had two felony cases pending.1 The State argued that because Talley had requested four continuances in the two cases, there still were no resolutions to them. The State also claimed that on September 3, 2019, Talley was charged with harassing communications and violating an order of protection, and the case was pending in the Little Rock District Court; thus, the State was also waiting on a resolution of this third criminal case before it filed its response.
The State argued that under section 16-90-1413(b)(2)(B), if the State does not file a notice of opposition to a petition to seal a misdemeanor within thirty days, the court may grant a petition to seal; however, there is no requirement that the court grant a petition to seal if the State does not respond within thirty days. The State claimed that it did not believe it could respond without knowing the resolution of the three pending criminal cases against Talley. The State alleged that Talley's own actions were the cause for the State's delay in filing written opposition to the petition to seal.
On December 12, Talley filed a motion to strike the State's "objection" as untimely. He argued that the prosecution has only thirty days to file a notice of opposition to a petition to seal a misdemeanor conviction. Ark. Code Ann. § 16-90-1413(b)(2)(A). He claimed that because the State failed to file any notice of opposition on or before the thirtieth day, December 5, the State waived any opposition to his petition. He argued that the State's response to his motion to compel ruling could only be construed as a written notice of objection filed outside the thirty-day deadline. He urged the circuit court to look to the substance of the pleading rather than the title, Mhoon v. State , 369 Ark. 134, 251 S.W.3d 244 (2007), and claimed that the State's response is a late notice of objection to seal because it accused Talley of lying under oath and noted that he had pending criminal cases.
At the December 18 hearing, the circuit court heard argument from counsel for both parties. Regarding Talley's motion to strike, he argued that regardless of the title of the State's response, the essence of the pleading is an objection, which was untimely and should be struck under the statute. The circuit court denied the motion to strike the State's response to Talley's motion to compel and did not make any findings regarding whether the response was an "objection."
Talley then argued that under the CCRSA, unless the circuit court is presented with and finds clear and convincing evidence that a misdemeanor conviction should not be sealed, the circuit court shall grant the petition to seal. He claimed that the State, having not filed an objection, had not put on any evidence, "let alone enough to show by clear-and-convincing evidence," that the conviction should not be sealed. In response, the State introduced exhibits 1–6, which are criminal records related to Talley's 2018 and 2019 criminal charges and the sentencing order from 2016. Talley objected that "these are untimely," but the circuit court granted the State's motion to admit the evidence.2
The State argued that considering the evidence reflected in the exhibits, Talley committed "false swearing under oath."3 The State pointed to the pending felony and misdemeanor violations and stated that its position was that "not waiting for the resolutions of these to determine whether you are going to grant or deny the petition to seal is not a good mode."
The State asked the circuit court to wait for the resolution of the cases to determine whether "he is amenable to rehabilitation." Alternatively, the State argued that if the court were to make a decision, it could do so on the basis of Talley's false swearing under oath. The circuit court ruled that the petition was granted in relation to case No. CR15-3708—the nolle prossed charges.
The State then made its argument related solely to Talley's petition to seal the misdemeanor conviction under case number CR-16-271 and stated that the burden on the State is to produce clear and convincing evidence that a misdemeanor should not be sealed. Ark. Code Ann. § 16-90-1415. The State claimed that it had presented such evidence that Talley filed a petition with a false statement under oath in order to manipulate the system into sealing the case. Further, the State argued that it had shown that Talley had been "subsequently charged with six felonies and five misdemeanors in three different cases in two different jurisdictions since the filing of the petition to seal that contained actual false swearing." The State recognized that whether to seal the conviction is discretionary with the court and asked the court to exercise its discretion and find that clear and convincing evidence had been presented and that the case not be sealed.
Talley argued that the circuit court had no discretion under section 16-90-1415(a) because the court was not presented with clear and convincing evidence that a misdemeanor conviction should not be sealed. Talley claimed that the only vehicle whereby the State could present the evidence to the court is to file a timely objection. Because he maintained that the State waived its objection, Talley argued there was no evidence that the conviction should not be sealed. He claimed that the court could not consider anything the State submitted because it was not argued in a timely thirty-day objection, and the court had no other choice under the statute, which states the court "shall seal the conviction."
The circuit court denied the petition at the hearing, and the order filed December 19, 2019, states in pertinent part:
To continue reading
Request your trial