PEOPLE OF MI V JULIA ANN ZDYBEL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 21, 2009
9:20 a.m.
Plaintiff-Appellant,
v
No. 281899
Isabella Circuit Court
LC No. 2003-001577-FH
TERRI LEA BENJAMIN,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 281900
Isabella Circuit Court
LC No. 2003-001578-FH
KIMBERLY JANE HENISER,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 281901
Isabella Circuit Court
LC No. 2003-001579-FH
JULIA ANN ZDYBEL,
Defendant-Appellee.
Before: Beckering, P.J., and Talbot and Donofrio, JJ.
DONOFRIO, J.
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In this consolidated appeal, the prosecutor appeals by leave granted from trial court
orders granting defendants Terri Lea Benjamin’s, Kimberly Jane Heniser’s, and Julia Ann
Zdybel’s motions for destruction of arrest cards and fingerprints by the arresting agency or
Michigan State Police. Each defendant pleaded guilty to an underlying charge of possession of a
controlled substance less than 25 grams (cocaine), MCL 333.7403(2)(a)(v). The trial court
granted all three defendants deferral status under MCL 333.7411 and sentenced defendants to six
months probation. Defendants successfully completed the terms and conditions of their
probation and pursuant to MCL 333.7411(1) the charges against them were dismissed.
Subsequently, the trial court granted defendants’ motions for destruction of their fingerprints and
arrest cards. The trial court denied the prosecution’s motion for reconsideration and this Court
granted leave to appeal. Because the trial court clearly erred in concluding that MCL 333.7411
allowed defendants’ fingerprints and arrest cards to be destroyed, we reverse.
Before the trial court on the motion for reconsideration, the prosecutor argued that MCL
333.7411(2)(a) requires the department of state police to keep a nonpublic record of an arrest for
individuals who receive deferrals. The prosecution relied on McElroy v Michigan State Police
Criminal Justice Information Center, 274 Mich App 32; 731 NW2d 138 (2007), in which this
Court interpreted a different but similar statutory deferral provision and held that fingerprints and
arrest cards must be retained by police. The trial court found MCL 28.243(8) to be applicable,
which requires the destruction of fingerprints and arrest cards of a person found not guilty of an
offense. The trial court distinguished McElroy, supra, on the basis that McElroy had pleaded no
contest rather than guilty stating:
. . . The facts in McElroy differ from the facts in these cases. Mr. McElroy
entered a plea of no contest to domestic violence and entered into a deferral
program under MCL 769.4a. Id. at 33-34. The Court of Appeals held that
because Mr. McElroy was unable to prove his discharge and dismissal was a
finding of not guilty under MCL 28.243(8) because he pleaded no contest rather
than guilty[,] there was never an adjudication of guilt entered. Id. at 38.
Therefore, he was not entitled to have this fingerprint and arrest cards destroyed.
Id.
The trial court ultimately held that under MCL 28.243(8), defendants were entitled to the
destruction of their fingerprints and arrest cards reasoning:
The Court of Appeals [in] McElroy footnotes a case deciding when a
discharge or dismissal under MCL 333.7411 constitutes a finding of not guilty;
the case cited was Carr v Midland [C]o Concealed Weapons Licensing Bd, 259
Mich App 428; 674 NW2d 709 (2003). In Carr, the Court of Appeals held that a
dismissal of a guilty plea after a successful completion of a probation program
under MCL 333.7411 did not render the plaintiff in that case guilty of a felony
because MCL 333.7411(1) provided that her discharge and dismissal was not a
conviction. This decision allowed Ms. Carr to apply for a concealed weapons
permit because she did not have a conviction on her record.
The facts in the cases above are more like those in Carr than in McElroy.
Each Defendant named above pleaded guilty to the charges against them;
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therefore, an adjudication of guilt was entered against them. When they
successfully completed their probation program they were discharged and a
dismissal of a guilty plea was entered. As the court held in Carr, Defendants in
these cases were found not guilty of an offense. Therefore, they are entitled to
have their fingerprint and arrest cards destroyed under MCL 28.243. McElroy
does not apply to this case because Defendants are able to prove that their
discharge and dismissal is a finding of not guilty.
Therefore, People’s Motion for Reconsideration is denied because they
have failed to demonstrate that this Court has committed palpable error. Further,
MCL 333.7411(2) requires that the records and identifications division of the
department of state police retain a nonpublic record of an arrest and discharge or
dismissal under this section. Destroying the fingerprint and arrest cards does not
prevent the state police from maintaining a record of the arrest and discharge or
dismissal.
Resolution of this single-issue appeal turns on the interpretation of MCL 333.7411.
Issues of statutory interpretation are questions of law which this Court reviews de novo. People
v Hesch, 278 Mich App 188, 192; ___ NW2d ___ (2008). The primary goal of statutory
interpretation is to ascertain and give effect to the intent of the Legislature, which is determined
from the language of the statute itself. McElroy, supra at 36. If the statute is unambiguous on its
face, the Legislature is presumed to have intended the meaning expressed, and judicial
construction is neither required nor permissible. Id. at 37.
On appeal, the prosecutor argues that the police are allowed to keep a non-public arrest
record of a party’s fingerprints and arrest card after the party has successfully completed a MCL
333.7411 deferral for three reasons: (1) the statute specifically states that the police shall retain a
non-public arrest record for parties who have completed MCL 333.7411 deferral; (2) one of the
main purposes behind keeping the non-public arrest record is to confirm that the party does not
receive another MCL 333.7411 deferral in the future; and (3) MCL 28.243(8) does not apply
because a person who completes a deferral does so without adjudication of guilt and therefore
the MCL 28.243(8) triggering language of “not guilty” is not met.
In deferral proceedings under MCL 333.7411(1), an individual either pleads guilty or is
found guilty of certain controlled substance offenses. The trial court does not adjudicate guilt
when the plea is tendered. Instead, the trial court defers proceedings and places the individual on
probation. If the individual complies with the terms of probation, the trial court discharges the
individual without an adjudication of guilt and dismisses the proceedings. If the individual fails
to fulfill the terms of probation, the trial court enters an adjudication of guilt. MCL 333.7411(1)
provides in pertinent part:
When an individual who has not previously been convicted of an offense under
this article or under any statute of the United States or of any state relating to
narcotic drugs, coca leaves, marihuana, or stimulant, depressant, or hallucinogenic
drugs, pleads guilty to or is found guilty of possession of a controlled substance
under section 7403(2)(a)(v) . . . the court, without entering a judgment of guilt
with the consent of the accused, may defer further proceedings and place the
individual on probation . . . . Upon fulfillment of the terms and conditions, the
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court shall discharge the individual and dismiss the proceedings. Discharge and
dismissal under this section shall be without adjudication of guilt and, except as
provided in subsection (2)(b), is not a conviction for purposes of this section or
for purposes of disqualifications or disabilities imposed by law upon conviction of
a crime, including the additional penalties imposed for second or subsequent
convictions under section 7413. There may be only 1 discharge and dismissal
under this section as to an individual.
MCL 333.7411(2) requires the department of state police to keep a nonpublic record of
the arrest and discharge and dismissal, partly for the purpose of determining whether an
individual has previously availed himself of an MCL 333.7411 deferral:
(2) The records and identifications division of the department of state police shall
retain a nonpublic record of an arrest and discharge or dismissal under this
section. This record shall be furnished to any or all of the following:
(a) To a court, police agency, or office of a prosecuting attorney upon request for
the purpose of showing that a defendant in a criminal action involving the
possession or use of a controlled substance, or an imitation controlled substance
as defined in section 7341, covered in this article has already once utilized this
section. [MCL 333.7411(2)(a).]
In addressing the prosecutor’s motions for reconsideration, the trial court considered the
language of MCL 333.7411, but relied on MCL 28.243(8) to conclude that defendants were
entitled to have their fingerprint and arrest cards destroyed. Despite the trial court’s
acknowledgement of the requirements of MCL 333.7411(2), it determined that MCL 28.243(8)
applies to this case. MCL 28.243(8) requires the destruction of fingerprints and arrest cards of
persons who are found not guilty of an offense:
. . . [I]f an accused is found not guilty of an offense for which he or she was
fingerprinted under this section, upon final disposition of the charge against the
accused or juvenile, the fingerprints and arrest card shall be destroyed by the
official holding those items and the clerk of the court entering the disposition
shall notify the department of any finding of not guilty or not guilty by reason of
insanity, dismissal, or nolle prosequi, if it appears that the accused was initially
fingerprinted under this section. . . . . [MCL 28.243(8).]
No appellate decisions have addressed the retention-of-arrest-record requirement of MCL
333.7411(2), or whether a dismissal under MCL 333.7411 is a finding of not guilty within the
meaning of MCL 28.243(8). But in McElroy, supra, this Court considered whether a person who
successfully completes a similar deferral program under the Spouse Abuse Act, MCL 769.4a, is
entitled to have his fingerprints and arrest card destroyed under MCL 28.243(8). McElroy, supra
at 33.
McElroy was charged with and pleaded no-contest to domestic violence. He participated
in a deferral program under MCL 769.4a, which provides that persons who plead or are found
guilty of assaulting their spouse may have proceedings delayed and be placed on probation
without the court entering a judgment of guilt. McElroy, supra at 34. Like MCL 333.7411,
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when the terms and conditions of probation are fulfilled, the court must discharge the accused
and dismiss the proceeding, and such “[d]ischarge and dismissal . . . shall be without
adjudication of guilt and is not a conviction for purposes of this section or for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime.” MCL 769.4a(5).
Also as in MCL 333.7411, a person may use the deferral provision in MCL 769.4a(5) only once,
“so the department is required to maintain a nonpublic record of the arrest of dismissal[.]” Id. at
36, citing MCL 769.4a(6). McElroy completed the deferral program in accordance with the
terms and conditions of his probation, and the charges against him were dismissed. Id. at 35.
McElroy brought a mandamus action in this Court seeking the return or destruction of his
fingerprints and arrest card relying on MCL 28.243(8). McElroy, supra at 35. He argued that
there was no finding of guilt in his domestic violence case. Id. This Court denied relief because
McElroy failed to show that he was “found not guilty” as required by MCL 28.243(8). This
Court explained that the discharge and dismissal of the domestic charges did not constitute a
finding of “not guilty”:
McElroy argues that MCL 28.243(8) requires defendant to destroy the
enumerated documents because the charges brought against him were ultimately
dismissed and, he maintains, the statute requires defendant to destroy these
documents unless McElroy was found guilty. To the contrary, nothing in
subsection 8 requires defendant to destroy the documents following a dismissal.
Rather, subsection 8 plainly states that, in order for McElroy to require defendant
to destroy these documents, McElroy must show that he was “found not guilty.”
McElroy does not argue, or cite any authority holding, that a dismissal
under MCL 760.4a should be construed as a finding of not guilty within the
meaning of MCL 28.243(8).
Moreover, MCL 769.4a(5) provides that
“[d]ischarge and dismissal under this section shall be without adjudication of guilt
and is not a conviction for purposes of this section or for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime.”
(Emphasis added.) Thus, because no adjudication of guilt was made pursuant to
MCL 769.4a(5), McElroy cannot show that he has been “found not guilty,” which
he must show to require destruction of the enumerated documents under MCL
28.243(8). [Id. at 37-38 (internal footnotes omitted).]
The McElroy Court also noted the requirement that retention of the arrest records is necessary to
ensure that a person receives only one deferral:
Our holding that McElroy is not entitled to destruction of the documents is
reinforced by MCL 769.4a(1), in which our Legislature made it mandatory for a
court, before it permits a deferral or probation under these circumstances, to
determine whether a person has already benefited from the procedure available
under the statute in favor of a diversionary program. Indeed, that subsection
provides that “the court shall contact the department of state police and determine
whether, according to the records of the department of state police, the accused
has previously been convicted . . . or has previously availed himself or herself of
this section.” (Emphasis added.) Without retention of records by the state police,
this requirement would be compromised. [Id. at 39 n 5.]
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Given the similarities between the deferral schemes set forth in MCL 769.4a and MCL
333.7411(1), the same rationale set forth in McElroy applies to the present case. MCL
333.7411(1) expressly states that “dismissal under this section shall be without adjudication of
guilt[.]” Therefore, defendants cannot establish that they were “found not guilty” as required to
entitle them to the destruction of their fingerprints and arrest cards under MCL 28.243(8). The
trial court distinguished McElroy on the basis that McElroy pleaded no-contest rather than guilty,
attributing the McElroy result to the no-contest plea stating “there was never an adjudication of
guilt entered [and] [t]herefore he was not entitled to have his fingerprint and arrest cards
destroyed.” But the McElroy holding was not based on the fact that McElroy pleaded no-contest.
The reason that there was no adjudication of guilt was rooted in the plain language of MCL
769.4a(5), which, like MCL 333.7411, expressly provides that “[d]ischarge and dismissal under
this section shall be without adjudication of guilt[.]” McElroy, supra at 38. We conclude that
the trial court erred in holding that defendants, by the successful completion of their probation
and the dismissal of the charges against them were “found not guilty” for purposes of MCL
28.243(8).
Moreover, the trial court’s reliance on Carr v Midland Co Concealed Weapons Licensing
Bd, 259 Mich App 428; 674 NW2d 709 (2003) is misplaced. At issue in Carr was whether the
dismissal of charges against the plaintiff under MCL 333.7411 rendered the plaintiff “convicted
of a felony” for purposes of disqualifying her from obtaining a concealed weapons permit under
MCL 28.425b(7)(f). This Court held that it did not, because under MCL 333.7411(1), the
plaintiff’s discharge and dismissal was “not a conviction.” Carr, supra at 430, 436-438. Carr
did not hold the plaintiff was found not guilty, only that she was not deemed to have been
“convicted of a felony” under the concealed pistol licensing act by virtue of the charge dismissed
under MCL 333.7411. Id. at 429-430.
Although Carr involved application of MCL 333.7411, McElroy is more instructive.
McElroy involved the destruction of fingerprints and arrest card under MCL 28.243(3), after the
accused fulfilled probation and obtained a dismissal of charges. The issue in the present case
and in McElroy is whether the accused was “found not guilty,” whereas in Carr the issue was
whether the plaintiff had a felony conviction. In McElroy, this Court distinguished Carr on the
basis of the different “triggering” statutory language:
. . . McElroy’s discharge and dismissal was not an adjudication of guilt, and, as
previously discussed, in order to have the documents destroyed under MCL
28.243(8), McElroy must show that he was “found not guilty” of the crime
charged. Thus, Carr is inapplicable because it addressed statutory language
triggered by a conviction, while the critical statutory language here is triggered by
a “finding of not guilty.” [McElroy, supra at 37 n 2.]
Here, the trial court equated a discharge and dismissal under MCL 333.7411(1) with a
finding of not guilty, which triggers the MCL 28.243(8) requirement that fingerprint cards be
destroyed. This was error. MCL 333.7411(1) provides that the defendant benefiting from the
provision must first either plead guilty or be found guilty of the relevant offense. Here, each
defendant pleaded guilty to possession of less than 25 grams of cocaine but was granted deferral
status according to MCL 333.7411(1). For individuals enjoying deferral status pursuant to MCL
333.7411(1), such as defendants here, upon successful completion of the terms of probation there
is no record resolution of whether guilt has been established beyond a reasonable doubt. In fact,
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the predicate determination that the defendant is actually guilty of the charged offense becomes,
in essence, a nullity. See Carr, supra at 434-435.
The prosecution also addresses the question whether the “nonpublic record of an arrest”
that must be retained under MCL 333.7411(2) includes fingerprints and arrest cards. The statute
does not specify what items or information must be included in the “record of arrest.” The trial
court stated that “[d]estroying the fingerprint and arrest cards does not prevent the state police
from maintaining a record of the arrest and discharge or dismissal.” The prosecution contends
that because a person is entitled to only one deferral under MCL 333.7411, and the express
purpose of keeping arrest records is to ensure that a person receives only one deferral, identifying
information such as fingerprints and arrest cards are a necessary part of the arrest record. See
People v Cooper, 220 Mich App 368, 375; 559 NW2d 90 (1996) (“Arrest record” used
interchangeably with “fingerprints” and “arrest card”). Because the discharge and dismissal do
not amount to a finding of not guilty of the charged drug offenses, defendants here cannot show
that they have satisfied the condition precedent to the destruction of these records, and the
question of what type of documents could satisfy the directive to retain a “nonpublic record of an
arrest and discharge or dismissal under this section,” MCL 769.4a(2), is moot.
We will state, however, that while we imagine it would be possible for the state police to
“retain a nonpublic record of an arrest and discharge or dismissal” that does not include arrest
and fingerprint records, we find that action illogical and contrary to public policy. We agree
with the reasoning in McElroy that maintaining arrest and fingerprint records is important in
meeting the directive that a court shall contact the state police to determine if a defendant had
previously been given deferral status under MCL 760.4a(1). McElroy, supra at 36. Simply
maintaining a defendant’s name, even with a picture or other subjective description of the
individual, but without any other objective identifying information including a fingerprint card
would not satisfy the express purpose of MCL 333.7411. The express purpose is actual
identification so that a person receives only one deferral. Fingerprint and arrest records provide
a level of certainty to the identification process. Today’s technological world is rife with fraud
and identity theft. Moreover, name changes and changes in the appearance of a person’s
physical being, as a result of advances in medical sciences, are now commonplace. Having the
ability to objectively identify a person through fingerprint records is crucial to the clear purpose
of MCL 333.7411.
Reversed.
/s/ Pat M. Donofrio
/s/ Jane M. Beckering
/s/ Michael J. Talbot
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